Director of Public Prosecutions v Wood

[2020] VCC 1208

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR 19-00037

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY WOOD

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	2 June 2020
DATE OF SENTENCE:	1 July 2020
CASE MAY BE CITED AS:	DPP v WOOD
MEDIUM NEUTRAL CITATION:	[2020] VCC 1208

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Moore	Office of Public Prosecutions
For the Accused	Mr Adams	Victoria Legal Aid

HIS HONOUR:

1Corey Wood, as was said by the then Chief Justice of New South Wales, the well-known case of the R v Engert[1] back in 1994, persons suffering from mental disorders frequently come into collision with the criminal justice system.  Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision.  Sentencing is essentially a discretionary exercise consideration of the extremely variable facts and circumstances of individual cases, and the application of those facts and circumstances to the principles laid down by statute or established by the common law.

[1]Engert [1995] 84 A Crim R 67

2Those matters referred to by Chief Justice Gleeson as he was then, have been taken up by the High Court by Bugmy[2] v R and Munda v Western Australia[3] and indeed, in Dalgliesh[4] to exercise the sentencing in all circumstances relates to the individual offender and the individual offences that they committed. 

[2]Bugmy [2013] HCA 37

[3]Munda v Western Australia [2013] HCA 38

[4]Delgliesh [2016] VSCA 148

3The sad circumstances of this matter were set out in the prosecution opening tendered on your plea.  What is clear, is that yet again, there is the tragic collision between a person with a mental disorder and the criminal justice system, requiring sensitive analysis.

4In very brief terms, in the early part of October 2018, you were suffering very significant psychotic delusions regarding your brother.  He, like you, also unfortunately suffers from serious mental illness.  He is ten years older than you and is diagnosed with schizophrenia.  You came to believe that he was scheming with your family dog to harm you.  In this delusional state of mind, you assaulted your brother in the early hours of the morning of 3, 5, 7, and 8 of October 2018.

5Your father had to come to your brother's bedroom, to stop the assault and get you out.  On 9 October 2018, your brother complained to the police.  You were arrested on 14 October and remanded overnight.  An intervention order was sought and granted.  You were prohibited from being in the vicinity of the family home or going near your brother.

6Of importance, was that you were later in the day granted bail, a key condition being  that you comply with the requirements of Court Integrated Services Program (CISP).  The magistrate had granted you bail, recommending that you attend the local south-west mental health service at the hospital in Warrnambool for an immediate mental state assessment.

7The CISP worker who had spoken with you and assessed you for your suitability for the CISP bail was concerned as she spoke to you of your deteriorating mental health, which she considered was evident.  She took it upon herself to speak to the mental health commission on duty, of her concerns regarding your mental health and the fact that you were homeless, given the effects of the intervention order.

8It seems that though you attended at the south-west mental health clinic, you were not assessed, and you were sent away when it closed and asked to return at 2 pm the next day.  Thus, despite the expressed concerns, you were turned out to the street.  Your unstable mental health, and with nowhere to sleep or any of your personal effects, such as your phone, your wallet.  Unfortunately, you went to the family home, you say, to get your phone and wallet.  However, once at the house, things turned violent very quickly.

9As your mother rang for the police and your father tried to keep you out and away from your brother, you came to arm yourself with a wrench, which had a knife attached to it, and later you armed yourself with two other knives.  You punched your father, causing him injury.  More seriously, you attacked your brother, ultimately stabbing him twice to the chest.  Some of those wounds were life-threatening, causing significant endangerment to the functioning of your brother's heart.  He was flown to Melbourne for emergency life-saving cardiac and chest surgery.  He was discharged four days later, and thankfully, fully recovered.

10You were arrested and remanded in custody, where you remained for some time, being 334 days.  After significant negotiations surrounding whether you had a defence of mental impairment, and whether you were fit to plead, you ultimately pleaded guilty to a charge of aggravated burglary, recklessly causing serious injury, recklessly causing injury arising from the incidents at the family home that I have just described.  Also, as a consequence of the earlier assault and the intervention order and being placed on bail, you are also charged and pleaded guilty to unlawful assault, and contravening the intervention order, contravening a condition of bail, and committing offences whilst on bail.

11Your mental health continued to deteriorate seriously, and acting on auditory hallucinations, you attacked a fellow prisoner in the cells in the days after your arrest, resulting in you pleading guilty to a charge of common assault.

12The attack on your brother was self-evidently violent and serious.  He was in real peril.  The father tried to protect him and settle you, but he too was assaulted.  Overall, breaking into the house where you are prohibited by the intervention order, and attacking your brother and father, amounts to serious offending.  However, the context of your serious mental illness, must be factored into this sentencing equation.  As I have said, it is a sensitive sentencing task.

13I have had the benefit of very thorough psychiatric reports from Dr Zimmerman, dated 19 February 2019, 18 March 2019, and 9 September 2019. 
Dr Zimmerman was engaged by your lawyers.  Dr Sicar from Forensicare was engaged by the prosecution and I have his report of 14 August 2019.

14In considering these reports and the issue of your mental state and your ongoing mental health, what is important to remember right from the outset, is that when it comes to sentencing, I am not required to make fine diagnostic distinctions, or get distracted by diagnostic labels.  My task is to consider the evidence of your mental ill health at the time, and before, and since the offence, and the relevance of all this evidence to the sentencing task.

15Thus, while there may be differences in the experts' opinions as to whether any psychosis at the time was drug-induced, is not central here.  Dr Zimmerman concluded in the following terms in her first report,

'In my opinion, Mr Wood has a diagnosis of schizophrenic form of psychosis, which was present at the time of index offence, but is currently in remission after a period of treatment on anti-psychotic medication.  The age of onset and biological vulnerability, the months of auditory hallucinations, ideas of reference and paranoid delusions and unprovoked assaults on the brother; the assault was linked to his psychotic symptoms, are all supportive of this diagnosis.  Based on his account and that of his parents, it seems that active symptoms of his psychosis were present for at least three months, possibly longer.  However, the question of diagnosis in Mr Wood's case is not straightforward.  Differential diagnosis of drug-induced psychosis must be considered.  Differentiating such a diagnosis from a diagnosis of schizophrenia form psychosis essentially comes down to one of the course in duration of symptoms.'

16Although you have been adamant that there were no voices or psychosis commanding you at the time of your attack on your brother, all the circumstances of the month, day, and hours after your release on bail, that led up to the attack, reveal a deterioration in your mental health and your mental state.  In my view, your circumstances squarely engage the principles enunciated by the Court of Appeal in the important decision of Verdins[5] which relied upon earlier decisions of Tsiaras[6], Mooney[7], and Anderson[8].

[5]Verdins [2007] VSCA 102

[6]Tsiaras [1996] VicRp 26

[7]Mooney- Unreported Supreme Court of Vic

[8]Anderson [1981] VR 155

17I should say that these circumstances engaged those principles much, much more clearly than most of the other cases where the principles are said often on thin evidence, to be relevant to sentencing.  Because the issues are so clear, and the evidence so rigorous and well set out, there is in my view, no issue of the casual connection between your impaired mental functioning and the offending.  Your counsel's submission in this regard is not disputed by the prosecution.

18All matters set out in Verdins have application in my view.  But in my view, because of your psychotic illness and its casual connection with the offending conduct, your moral culpability is much lower.  Put simply, because of your illness, you could not think through what you were doing.  Accordingly, I will not apply the full weight of denunciation and punishment to you.  Those sentencing principles will be significantly moderated in this unusual case.

19Also, you are not an appropriate vehicle for deterrence to others.  The community would not be comfortable if you with your mental illness that makes you different, were the one that I use to make an example of, so as to deter others who are not afflicted with a mental illness.  Using you as a vehicle for general deterrence would not be appropriate.  Thus, the usually very weighty matter of general deterrence in cases of serious knife violence, and in the home, will be significantly moderated.

20Also, as you have no relevant prior history, there is no need for deterrence for you.  In my view, your mental illness requires the court to consider other sentencing options, other than further incarceration.  Imprisonment is onerous on you due to your impaired mental functioning.

21Important mitigatory weight to be given to your impaired mental functioning is added to significantly by reason of your young age at the time of your offending, being 20.  You are now 22.  As a young offender, without any relevant prior criminal history, I am obliged to give real weight to your rehabilitation.  I have applied the important principles enunciated in Azzopardi[9] and in R v Mills[10].  I will not recite them all, but in brief, rehabilitation is appropriately the most important sentencing purpose and I can, and I should avoid sending a young person to gaol, if other sentencing options are available and appropriate.

[9]Azzopardi [2011] VSCA 372

[10]Mills (1998) 4 VR 235

22At this time, all the considerable material, especially from your parents and your sister, and your mental health clinician, give me confidence that your prospects of rehabilitation are very good.  There will be setbacks as your mental illness is serious, but as with your very recent deterioration, that saw you hospitalised for a week on 22 June to 29 June. What stands out about that is that you voluntarily admitted yourself for in-patient treatment.  You did not head off into a period of denial or drug-taking.  I have been told this morning that you had auditory hallucinations brought about by complications related to the full array of drugs that you need to take.

23You spoke to the people who look after you in the accommodation that you are in and you were able to attend at the hospital and be properly settled and treated.  You now have one single depot injection for your mental illness, to deal with your psychotic symptoms and that gives me further confidence about your ultimate reform.

24Your personal circumstances reveal difficulties from an early age.  School was problematic, but the tireless efforts of your parents and your own determination saw you find a solid niche in a specialist school, The Waves, as is called.  Comments from Mr Sali, the co-ordinator at that school was very impressive.  A related example he wrote, he has known you since your time at the school where your attendance in mid-2014 to the end of 2016.  He says the school is an alternative school that works with students who have not been able to succeed in mainstream settings.  He said that your period there was a great success across all aspects of the program.  You had turned first there as a boy with a poor track record with little academic progress, but you quickly left these things behind, and were able to pass two levels of VCAT and in his eight years at Waves so far, only one other student was able to get through the sorts of things that you did.  You were given an award there, in fact, an award was created for students because of your performance at the school.

25You achieved in extra-curricular activity.  Overall, Mr Sali said your time was characterised by consistently high attendance, strong engagement in learning, and clear respect for fellow students and staff.  However, he goes on, you did not successfully transition onto either work or more post-secondary school.  Unfortunately, perhaps because these things do not occur quickly, or because of your mental health issues, you made poor choices and he watched as you noticeably declined.

26You began to associate with people who were known criminals and you did not admit to taking substances, which were having an effect upon you.  You were unable to stop the trajectory that you were heading.  As noted, the great achievements at Waves did come undone, as your drug use escalated, and your mental health deteriorated.

27After your lengthy period on remand of 334 days for these offences, you have settled with the support of your family.  They are to be admired and commended.  In a letter to the court, your mother wrote insightfully, that as you grew up, you stayed out of trouble, kept to yourself, and were kind.  When you joined Waves, you loved being at school there, and made particular progress.  You had not made such progress at Warrnambool College prior to that.

28She goes on,

'It wasn't until he was at Waves that he started hanging around with the wrong crowd, and his mental health started to decline, leading up to the incident.  I started to worry about him and tried to seek out some help.  Unfortunately, those attempts failed.  He wouldn't go for help because he didn't think he needed it.  He was aware of his illness once it got bad.  He knew he was hearing voices.  After the incident, I was heartbroken, but I knew it wasn't Corey.  He was ill.  I continued to support him, because I knew he could get past this and he could receive the help he needs'.

29She said,

'I've spent a lot of time with Corey since coming out, and he is so positive about life again, it is so good to have my boy back'.

30She concludes,

'He is remorseful for what he has done and continues to mend the relationship with his brother and gain his trust back'.

31The sister and father wrote in similar terms.  It is important that your significant improvement as noted by your family and the clinician and support agencies, occurred notwithstanding that you spent a long time in adult gaol.  Ordinarily, a life-threatening stabbing and other assaults see years of imprisonment, but this whole set of circumstances is far from the ordinary.  The clash of mental illness in the criminal justice system, followed by solid recovery and reform, means that my sentence must be for a young person, one that facilitates your rehabilitation.

32A community corrections order does that, unlike gaol, and at the same time, a community corrections order is further punishment.  Your plea of guilty and your remorse are important, meaning the sentence that I will shortly announce is much less, and of a different kind than it would have been in the case where you had pleaded not guilty and been found guilty by a jury.  Also, a plea at this time when jury trials are suspended, is of greater value.

33I take into account also the much harder conditions of gaol now in determining all matters, including whether further gaol is required.  I am firmly of the view, that no further gaol is required, no sentencing purpose be advanced by that, indeed, all sentencing purposes can and must be - it must be the case that a community-based sentence is imposed.

34What I propose to do is outline the sentences for all the offences.  I will do that by reference to days, because the sentence for recklessly cause injury, will be the time that you have served in prison together with a community corrections order.

35Thus, for the aggravated burglary, you are sentenced to 270 days.  This is nine months.

36For recklessly causing injury, you are sentenced to 30 days.

37For recklessly causing serious injury, you are sentenced to 334 days, together with a 12 month community corrections order with conditions.

38For the common assault, you are sentenced to 30 days.

39All sentences of imprisonment are concurrent with each other and with the sentence imposed for the recklessly cause serious injury.

40Thus, the terms of imprisonment are 334 days, together with a community corrections order.

41I will return to your pre-sentence detention shortly.

42Just to conclude in respect of all other offences, for the breach of the intervention order by returning to the house, this is proven and discharged.  It overlaps with the aggravated burglary and the recklessly causing serious injury.  

43In respect to the breach of bail, the condition that is, by not complying with the intervention order, this overlaps in two or more ways; that too will be proven and discharged.

44For committing an offence on bail, given the level of punishment that I have imposed in respect to this, that will be proven and discharged.

45The unlawful assaults in early October, the four of those, I impose an aggregate sentence of seven days.

46Well, as I say, all sentences are concurrent; thus the total term of imprisonment of 334 days.

47I have been told that you have spent 334 days on remand for these offences.  Thus, this figure having been reckoned, I declare that the 334 days as part of the sentence I have just imposed; indeed, it is every single day of the imprisonment aspect of this sentence. 

48I ensure that this declaration is entered into the records of the court, thus the prison authorities be left in no doubt you have served every day of imprisonment that I have imposed and there is no requirement that you return back into custody.

49The 12 months community corrections order will have a number of conditions.  They will be that you have to undergo treatment and rehabilitation for drug and alcohol that was recommended by the Community Corrections officers but certainly, the main focus is continuing to deal with your drug problem.

50You have to be assessed and treated for your mental health.  That will be an arrangement that will dovetail with what is presently being undergone.

51Also, you are to be treated, assessed, and provided rehabilitations that will endeavour to reduce your risk of reoffending.  Further you are to be supervision of the Community Corrections staff for the 12 months.

52I am not requiring you to do any community work at the present time, in the present conditions, given the punishment.  That is, the community corrections order, once - I have to go over that with you, Mr Wood, and we will do that shortly.  Are there any other orders required, Mr Moore?

53MR MOORE:  Yes, Your Honour.  A forensic sample order and forfeiture order.

54HIS HONOUR:  All right.  In respect of the forfeiture order, that will be made.  What do you say in respect of the forensic sample?  Anything, Mr Adams?

55MR ADAMS:  Only to note that he was 20 years of age at the time of the offending, with no offending since.  There is no criminal history after the offending and if there was a requirement as part of an investigation given the recent changes to the legislation, again, a sample could be procured without his consent as part of that.  But it is certainly a matter for - a discretionary matter for the court.

56HIS HONOUR:  Thank you.  Mr Wood, what I have to do now is just outline to you and you have to answer whether your consent.  The community corrections order I place you on is for 12 months.  Everyone who is on a community corrections order, they have the following conditions applied to them.  The first is, do not commit another offence for which you will be imprisoned during the time of this order; that is 12 months.  So, if you commit another offence, you will come back before me and it will be a different set of circumstances.

57Also, you have to cooperate with the Office of Corrections.  So, you will have to report to them, and it will probably be by telephone, within two working days from today.  You have to comply with their requests and their directions to you, the orders that they make, and receive visits if they think that is necessary.

58You have got to tell them if you change your address.  You have got to tell them if you change your job, and you cannot go interstate without their permission.  Now, so all those matters are about cooperation.

59Now, in addition to those conditions that apply for everyone on a community corrections order, what applies to you is that you have to undergo treatment and rehabilitation for drug and alcohol matters, that is important; in particular, the drug matters.  You have got to undergo treatment for your mental health problems, as you will no doubt will continue to do, and you have got to do programs that might help you reduce your reoffending.

60Further to that, you have got to be under supervision.  All that is mandatory.  You have got to be available and undertake supervision with them.  They will explain how that is to be done in the COVID environment.

61Now, do you understand all of those matters, Mr Wood?

62ACCUSED:  Yes, sir.

63HIS HONOUR:  Do you consent to that community corrections order?

64ACCUSED:  Yes, sir.

65HIS HONOUR:  All right.  So, in due course, you will get a document that I will sign, and we cannot get it to you now for you to sign, which used to be the case.  But your oral consent is provided.  Now, the prosecution seek to make an application in respect of this offending, that you provide a forensic sample.  Now, forensic sample is a scraping from your mouth, that will be sufficient to extract your DNA for it to be put on a database.

66I have considered the application.  The critical thing here are the seriousness of the offence and its circumstances, together with whether it is in the interests of justice you provide a sample.  Balancing it up in my view, given the seriousness of this particular matter, given your personal circumstances relating to the outbreak of mental health problems, I consider it is important, that your DNA be on the database.

67You will required to provide a forensic sample.  A document will be provided to you.  What occurs here and Mr Adams will explain is, that essentially a window of opportunity has opened; that is, four weeks from now, the window opens, and you have got a further four weeks thereafter in which you get to the police station, down in Warrnambool and have that sample taken.  So, be in touch with them about all that within that period of time.  

68I have to explain to you, if you do not cooperate when you go, then the authorities are authorised to use reasonable force to get the sample.  The way through it is to cooperate.  All right.  Is there anything further required?

69MR ADAMS:  Nothing further, Your Honour.

70MR MOORE:  No, Your Honour.

71HIS HONOUR:  Thank you very much for your very considerable assistance in this matter, Mr Adams.  Mr Moore and your instructors, these are not easy matters.  I will end my participation in the meeting; you might need to speak to each other about various things.  Thank you.---