Director of Public Prosecutions v Zonnerfeldt

[2020] VCC 451

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01658

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROY ZONNERFELDT

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Geelong
DATE OF HEARING:	24 January 2020
DATE OF SENTENCE:	30 January 2020
CASE MAY BE CITED AS:	DPP v Zonnerfeldt
MEDIUM NEUTRAL CITATION:	[2020] VCC 81

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW      

Catchwords:   Sentence - recklessly cause injury – resist emergency worker on duty – arson – psychosis at time of offending – longstanding schizophrenia and cognitive impairment – early plea of guilty

Legislation Cited:                Sentencing Act 1991 (Vic)

Cases Cited:Murphy v The Queen [2019] VSCA 189; R v Verdins (2007) 16 VR 269

Sentence:  Imprisonment for a period of 538 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G Hevey	Office of Public Prosecutions
For the Accused	Ms M Foley	Victoria Legal Aid

HER HONOUR:

1       Troy Zonnerfeldt, you have pleaded guilty to one charge of recklessly cause injury and one charge of resist emergency worker on duty, each of which carries a maximum penalty of five years’ imprisonment. You have also pleaded guilty to one charge of arson which carries a maximum penalty of 15 years’ imprisonment.

Circumstances of offending

2       The circumstances of your offending are set out in the Summary of Prosecution Opening upon Plea[1] tendered by the prosecution and I sentence you on the basis of the facts contained in that document. I summarise those very briefly here.

[1]Exhibit 1.

3       All of the offending occurred on Sunday, 12 August 2018, when you were 41 years old and had a recorded diagnosis of schizophrenia. Charge 1 concerns your conduct against a next door neighbour, Joseph Nagy, with whom you had previously exchanged pleasantries and greetings on the street. At around 7:00pm you knocked on his door, looking distressed. When he answered the door you asked him why he had bought a Toyota, then dragged him out of his home to the footpath. When he resisted, you tried to keep him down on the footpath, telling him that he was poisoning you with his fruit, spreading church propaganda, being on the internet with the church, and that you had an issue with his Toyota. Mr Nagy tried to reason with you but you did not seem to register what he was saying. You pulled a knife out of your jacket and held it to his throat, and abdomen, while threatening to put the knife through his head, and threatening to castrate him. Mr Nagy thought he was going to die, and suffered cuts on his hands while pushing the knife away. He called for help. You slammed his head into the concrete footpath at least three times and threatened to burn his house down. Mr Nagy managed to escape, ran to a neighbouring property, and police were called.

4       As a result of the incident, Mr Nagy spent the night in hospital, and suffered cuts to his hands and forehead, swelling on his head, a grazed knee, a sore right side, and a sore neck and throat. In his Victim Impact Statement,[2] Mr Nagy stated that he continued to have a sore right shoulder one year after the attack, and this has affected his work as a window cleaner. He continued to think about the incident. He sold his home because he no longer feels safe there even though he had security shutters on the windows. Selling and moving is costly for him.  He has difficulty getting to sleep, is jumpy when he hears loud noises, now locks his bedroom door and has an escape plan. He tries to avoid going out alone at night.

[2]Exhibit 3.

5       After this incident you returned home. Charges 2 and 3 concern your conduct when police members approached your front door and asked you to come out. You were shouting at police but did not come out. The police decided to force entry to your premises. When the front door was forced open, one police member could see a mattress in the lounge room where you were standing. You were holding a petrol can and splashing it around the room. One police member activated his OC spray as you tried to light a cigarette lighter, but that spray did not reach you. You then sparked the lighter again and the room was engulfed in flames. This conduct is the subject of Charge 2, arson. You fled from police further into your home through your hallway, holding a knife.

6       Police exited from the house, called the CFA, turned off the gas meter, and notified neighbours of the fire. The police, in particular Detective Senior Constable Kevin Beaumont, then broke a bathroom window and climbed inside. It was empty and smoky. After trying to enter the property elsewhere, police saw you standing in the bathroom holding a knife. They shouted at you to leave the property but you refused and abused them. From the window, a police member deployed OC foam against you. DSC Beaumont then climbed through the window and, unable to see if you were holding anything, he punched you to the head as hard as possible around 20 times while ordering you to get up. He then pushed you against the window and Senior Constables Matthew Seehusen, Julian Hilderbrand and Paul Harbert grabbed you from outside the window and dragged you through it. DSC Beaumont then climbed out of the window behind you. You continued to resist police when they cuffed you and pushed you through the fence. You screamed and ranted while in the divisional van and upon arrival at hospital, where you had to be shackled to the trolley. After being discharged you were taken to Geelong Police Station but were not interviewed because of your condition.

7       A Victim Impact Statement from SC Harbert[3] was tendered and I have read it. Immediately after the incident he was treated at Geelong Hospital for smoke inhalation. His mental health continues to be negatively affected. He describes suffering nightmares multiple times per week in which he relives the events and wakes up in a sweat. He has resorted to medication to help him sleep. He has flashbacks when he sees fire or open flames.

[3]Exhibit 4.

8       Details of the impact of your offending on DSC Beaumont, SC Hilderbrand and Seehusen, and Constable Georgia Leith were contained in their police statements and were outlined in the Summary of Prosecution Opening.

9       DSC Beaumont was the most affected by smoke inhalation. He suffered cuts on his hand and bruising to his leg, from climbing through the window, and a split lip. He was given oxygen at the scene and then checked in hospital. The next day he was vomiting black mucus and was short of breath. He had close contact with you and, because your hands were bleeding, had tests to ensure he had not contracted any communicable disease. The results of the tests were not be available for some months and this delay caused him stress.

10      The other police members noted that they suffered smoke inhalation. SC Hilderbrand noted that while trying to remove you from the house he worried that you would attack them with the knife. He also worried about DSC Beaumont’s life.

Procedural History

11      You pleaded guilty to the charges prior to the third committal mention.

12      You have been accommodated in Ravenhall for the large part of your time in prison. Whilst in custody, you have been receiving mental health treatment and medication for your schizophrenia.

13      You have spent 536 days in custody, not including today.

Personal circumstances

14      You have a criminal history going back to 1994, largely comprising offences of theft and burglary, but also including assault,[4] intentionally cause serious injury,[5] threat to kill,[6] property damage,[7] and resist police.[8] You have been sentenced on previous occasions to hospital security orders and to sentences of imprisonment which were wholly suspended, as well as to short terms of imprisonment.

[4]In 2001 and 2002.

[5]In 2006.

[6]In 2002.

[7]In 2002.

[8]In 2006.

15      Your defence counsel tendered three reports. The report of forensic psychiatrist, Dr Mark Taylor, dated 26 November 1999,[9] was an assessment in the context of persistent offending by committing theft and burglaries from the age of 11. He interviewed you and talked to your mother and an elderly friend.  His report summarises your personal circumstances to the age of 22. The report of Laura Scott, neuropsychologist, dated 20 December 2019,[10] also provides some further details of your personal circumstances. I summarise those circumstances briefly.

[9]Exhibit A.

[10]Exhibit C.

16      You have one sibling. Your father suffered mental health problems as a result of drug use. Your parents separated when you were six years old. You were a hyperactive child. You then lived for four years with your father in a caravan but were continually physically abused by him during that time. Eventually you contacted Human Services and were put into care. You struggled in primary school due to dyslexia. At Year 7 you were put into foster care and then into a boys’ home until you were 16 years old. You were not happy there and ran away frequently. You attended a special school between Years 8 and 10. After leaving school you helped your step-father work on vehicles around the family farm. After leaving the boys’ home, you lived in hostels, in rented property and on the streets. Your longest job was for two months as an apprentice. You have worked in a number of short term casual jobs. You started using cannabis at the age of 16 and were using heavily by the age of 19. You occasionally used methamphetamine and abused benzodiazepine.

17      You were first hospitalised for psychosis in 1999 after acting aggressively and threatening to kill your father. Dr Taylor felt from your description of your condition at that time, that you were suffering low self-esteem and Post Traumatic Stress Disorder rather than psychosis, but was unsure of the impact of your heavy drug use. When assessed, you had stopped using cannabis.

18      You told Ms Scott that you had been diagnosed previously with Paranoid Schizophrenia, Depression and Drug Induced Psychosis. The first signs of serious mental illness emerged in your early twenties, when you occasionally had suicidal ideation. You have had 10 admissions to psychiatric units since 1999.

19      In 1999, you suffered an episode of psychosis and were hospitalised. In 2002 you were hospitalised when you suffered an episode of drug induce psychosis. You were diagnosed with schizophrenia at that time. In 2003, when you were 26 years old, you suffered psychosis while on remand and spent 10 months at Thomas Embling Hospital. You were discharged on a Community Treatment Order with transitional accommodation as well as outreach and case workers.

20      You had further admissions to Thomas Embling Hospital from Melbourne Assessment Prison in September 2017[11] and September 2018.

[11]For two weeks.

21      You tried a number of antipsychotic medications before settling on a medication that was effective and tolerable. You saw a psychiatrist and took medication but your compliance declined when that psychiatrist moved away.

22      Before the recent offending, you were feeling suicidal and presented to various hospital emergency departments seeking inpatient admission, but you were not deemed to be acutely unwell. You had been living on your own in Department of Housing accommodation for three years and had not been taking your antipsychotic medication. You were lonely and spent most of your time watching television. In the three weeks before the offending, you had become increasingly unwell, irritable and verbally aggressive towards strangers. You became increasingly paranoid, suffering uncontrollable thoughts, seeing visions and hearing voices. On the day of the offending, you said you “lost the plot”.

23      You expressed remorse to Ms Scott about your behaviour towards Mr Nagy and about the damage you caused to your unit. You acknowledged that your mental health, lack of meaningful occupation, social isolation and drug use were key factors in your offending. You were open to receive mental health treatment to manage your psychotic symptoms and stated strongly that you wished to avoid behaviour like this in the future.

24      Ms Scott assessed you as obtaining a Full Scale IQ of 67 and of functioning on the border of the low average and borderline range. She noted that you presented with severe impairment in accuracy of memory recall, rate of new learning, higher order attentional abilities, and aspects of executive function (including response inhibition and organisation). You presented with extremely severe anxiety and depressive symptoms. She concluded that your neuropsychological profile is consistent with a diagnosis of chronic schizophrenia in the context of a verbal learning disability and childhood trauma. She considered that your impairments would have been present at the time of offending and would have been further exacerbated by the acuity of your psychotic symptoms. She concluded that your significant impairments in executive function make you impulsive and likely to respond without fully considering the consequences of your actions. This cognitive impairment would be further exacerbated at times of acute mental illness. Your limited attention span, difficulty sustaining concentration, and difficulty rapidly switching between various trains of thought would all impede your ability to think clearly and to make calm reasoned decisions and appropriate judgments, while your impairments in memory and learning would mean that you struggle to learn from prior experiences and could be prone to repeating mistakes. Your problems with impulse control, poor planning and disorganisation further impair your ability to make sound judgements.

25      Ms Scott concluded that, against the background of your cognitive and behavioural problems, you suffered acute schizophrenia at the time of offending, resulting in erratic behaviour, difficulty regulating emotions and behaviour, and which caused the rapid escalation in your behaviour when police arrived at your home. She indicated that your cognitive impairments might lead to unintentional breaches and failures to follow instructions, and may make it hard for you to live independently in the community. She noted that while you have responded well to mental health treatments over the past 20 years, issues have arisen when you have lost a key health provider or structured support. At those times, your cognitive impairments have made you unable to engage alternative treaters and have resulted in your becoming noncompliant with medication. She considered that there was a risk that your high level of anxiety and depressive symptoms may escalate further with continued incarceration.

26      Ms Scott emphasised that in the future you would require case management, neuropsychological support, occupational therapy, and psychiatric review. She strongly recommended re-engagement with the National Disability Insurance Scheme to help with social integration and monitoring of your mental state. She concluded that your cognitive impairments are a facet of your schizophrenia, which is a permanent condition and that the likelihood of further offending is closely tied to episodes of deterioration in your mental state.

27      Dr Leon Turnbull, psychiatrist, reported on 20 June 2019[12] that, when he assessed you, he found you to be a vague historian. However, having perused the documentation he received, he was satisfied that you have an established diagnosis of schizophrenia, which is a permanent condition. He considered that, on the material, you were psychotic at the time of offending. He considered that without medication you are likely to relapse into psychosis. He felt that you may find prison more onerous due to your communication problems and the effect of sedating medication. He concluded that your mental state thus far had not deteriorated in prison.

[12]Exhibit B.

Submissions

28      None of the expert evidence was challenged by the prosecution, which conceded that you were suffering from acute psychosis at the time of offending.

29      The prosecution submitted that an aggregate term of imprisonment was an appropriate disposition having regard to the seriousness of the charges, but that you should be sentenced to a term beyond that represented by time already served.

30      Your counsel submitted that your serious psychiatric illness enlivened five out of six of the considerations set out in R v Verdins[13] (that is, all the considerations apart from the likelihood of a deterioration of your mental state in prison, which is not made out in your case). For this reason, your psychiatric illness at the time of offending, in the form acute psychosis in the context of longstanding schizophrenia and cognitive impairment, reduces your moral culpability for your offending, eliminates specific deterrence as a relevant sentencing consideration, and makes you a poor vehicle for general deterrence.

[13](2007) 16 VR 269 (‘Verdins’).

31      For these reasons, it was submitted that a sentence of imprisonment for a period equivalent to time served is sufficient to address all the relevant sentencing considerations.  The court was informed that arrangements have been made for you to reside at a supported residential service run by Forensicare, and that you have an appointment already scheduled with a doctor.[14]

[14]Exhibit E.

Sentencing considerations

32      I note that you entered a plea of guilty at an early stage, and that your plea has utilitarian value in sparing the time and expense involved in a trial. Your plea is also evidence of remorse and I note that you have expressed strong remorse to Ms Scott for your offending. You have also indicated through your counsel that you know how important it is in future for you to stay on your anti-psychotic medication.

33      On accepted principles, as set out in Verdins, your moral culpability for the offending is to be treated as very substantially reduced (if not eliminated entirely).[15] In addition, the deterrent and punitive aspects of rehabilitation must be moderated in their effect. There was no issue taken by the prosecution with the expert opinion to the effect that, given your ability in the past to live independently in the community and take your anti-psychotic medication, provided you have a stable structure of mental health treatment supports, your prospects of rehabilitation are reasonable. Whilst it must be acknowledged that your offending objectively was serious and had a marked effect on Mr Nagy, as well as a marked effect on the courageous police members who rescued you from your burning house against your active resistance, the decisive consideration for sentencing purposes is the causal link between your offending and your mental condition.

[15]See also Murphy v The Queen [2019] VSCA 189, [40].

34      Protection of the community and your ongoing rehabilitation will best be served by your returning to the community with a complete set of medical and case worker supports tailored to your mental health and social needs. 

35      It is clear that your cognitive impairments, when combined with your mental illness, make it inappropriate to consider the imposition of a Community Correction Order, as it is clear from the material tendered that you would struggle to comply with such an order.  

36      In the present circumstances, however, I consider that for all the above reasons the appropriate sentence is one which sees you released from prison tomorrow, into the community and then directly into the care of the relevant accommodation and service providers.

Sentence

37      Would you please stand. On the charges to which you have pleaded guilty, I impose an aggregate sentence of 538 days imprisonment. I indicate that 536 days of this sentence are to be reckoned as pre-sentence detention and deducted administratively from the sentence imposed this day.[16]

[16]Administrative matters, and the need to facilitate transport to accommodation, necessitated a two-day difference between the term of imprisonment and the pre-sentence detention.

38      The prosecution has also sought a disposal order in relation to an item connected to the offending, and I will make those orders because I consider it in the interests of justice for those orders to be made, and because you have consented through your counsel to those orders being made.

39 Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have imposed an aggregate sentence of three years’ imprisonment with a non-parole period of two years.