DPP v Sarson

[2017] VCC 1011

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00384

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN SARSON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2017
DATE OF SENTENCE:	28 July 2017
CASE MAY BE CITED AS:	DPP v Sarson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1011

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   pleas of guilty to one charge each of aggravated burglary, contravening a Family Violence Intervention Order, theft and recklessly causing injury – victim was former partner – dispute over jointly owned property – offender broke down door of room where victim was located – hit her on the head during scuffle – theft of purse – prior convictions for similar offending – long-standing depression and more recent ABI -    poor coping skills & impulsivity – stable mental health critical to rehabilitation – evidence of improvement from treatment provided in custody through Forensicare.

Cases Cited:see footnotes     

Sentence: 2 years and 6 months, npp 1 year & 6 months.             

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APPEARANCES:		Counsel		Solicitors
For the DPP		Ms H Bate		OPP
For the Accused		Mr R De Kretser		Stary Halphan Norton

Pages 1 - 9

 

 

HER HONOUR: 

1John Anthony Sarson, you have pleaded guilty to one charge of contravening a family violence order intending to cause harm or fear, one charge of aggravated burglary, one charge of theft and one charge of recklessly causing injury.  Of these, aggravated burglary is the most serious offence, attracting a maximum prison term of 25 years.  The maximum penalties for the other offences are five years, ten years and five years respectively. 

2The offending occurred on 13 August 2016 at a motel in Kilmore.  You have had a de facto relationship with the complainant over several years.  A family violence order had been made in the Magistrates' Court at Shepparton on 17 December 2015 against you, protecting her from violence and/or damage to her property lasting for 12 months.  You had been at the hearing and its meaning had been explained to you. 

3At the time, you had been living with the complainant and this was able to continue under the terms of the order.  On the morning of 13 August, you telephoned the complainant who was at the hotel with her friend who resided there.  You asked the complainant where your car was.  She replied that the car was hers.  You stated that you would come and kick the door in.  You went to the hotel and yelled at the women to open the door which they had locked and they told you to go away.  You said you would kick the door in and you proceeded to break in using the force of your hip and shoulder against the door. 

4That conduct placed the complainant in fear and it constitutes Charge 1 - contravention of a family violence order.  Charge 2 -  aggravated burglary is on the basis of breaking in knowing that there were people in the room and with intent to take property from the complainant after arguing with her.  While in the room, you took her purse which contained her personal cards and some coins.  That is Charge 3, the charge of theft. 

5You argued with her and during a scuffle, you both fell to the ground and either while moving to the floor or once on the floor, you intentionally struck her once to the head with a torch which was in your hand.  This caused a cut to the right side of her head which bled.  You were arrested on 29 August 2016 and when interviewed by the police, you made some qualified admissions suggesting that the blow to her head had been accidental and you indicated some memory problems.  You have remained in custody since then. 

6The immediate background to these offences was that  you and the complainant had been in a relationship for several years and had recently been living together with her three young children and her ex-partner.  The house in which you were all living was owned by them, subject to a mortgage which you had been paying in recent months. 

7Owing to financial difficulties, the house was repossessed and the family had to leave.  You relocated to a friend's house.  At this time, you were under further stress owing to the complainant’s  ongoing objection to your extensive working hours as a long haul truck driver. 

8You had been suffering from a depressive condition for many years, first diagnosed, it seems, when you were aged only 15.  You grew up in an intact family but one of your brothers tragically died in a car accident as a boy and another committed suicide in later years.

9You completed Year 10 at school and then went interstate with your family where you were working, and you have maintained a strong work history ever since.  You formed a relationship while still very young and three children were born. 

10At the age of 25, you were first treated for depression and a few years later in the wake of your brother's suicide, you were admitted to hospital as a psychiatric patient on two separate occasions.  You returned to Victoria in 2007 and commenced your relationship with the complainant two years later. 

11Apart from one appearance for assault at the age of 41, which was your first criminal conviction, all your subsequent offending has been in the context of your relationship with her.  Regrettably, the current offending is the third set of circumstances leading to appearances in court for assaulting
her and on two occasions for breaching the intervention order that was in place at the time.  

12The first of these resulted in four months' imprisonment suspended for
12 months imposed on 31 January 2013.  You breached that suspended sentence by further similar offending and on 23 October 2014 you were sentenced to 12 months' imprisonment with a non-parole period of six months, and with the four months suspended sentence restored to be served concurrently. 

13By my calculation, you would have been released from prison in about February 2015.  In June 2015, you were remanded for having breached parole and it was soon afterwards that you were badly assaulted in prison and underwent surgery for facial fractures and a fractured jaw.  This was your second head injury due to an assault, the first having occurred in September 2014.  Your experience is that you have suffered memory problems since the second assault as well as problems with anger and with controlling your emotions. 

14You also considered that your symptoms of depression increased after that.  You were released in November 2015.  On 17 December 2015, as I said before, an intervention order was issued with conditions that you not commit family violence against the complainant or damage her property. 

15On 30 January 2016, you were remanded for breaching that order and for assaulting the complainant.  On 15 April 2016, you were sentenced to 81 days in prison with a nine-month Community Correction Order for similar offences, once again including contravening a Family Violence Intervention Order and assault.  This was a sentence of time served and you were released the next day to commence the Community Correction Order. 

16Several months later, you reported to Corrections that you had been newly diagnosed with bipolar disorder and that your medication had been changed, making your anger and temper worse.  You believe this led to the commission of these offences in August.  

17They were serious offences in several ways, ameliorated only by the fact that fortunately the injuries suffered by the complainant was not serious and also the property you had been intent on taking was jointly owned and the purse you stole was of nominal value.  You planned, even if only for a short time, to kick the door down and then you broke violently into the room, in a terrifying manner. 

18It is a serious matter to take such action in relation to a person's home or residence where they are entitled to feel safe.  Violence against a partner is obviously a serious matter, something which is not tolerated by members of the community and which is to be sternly denounced by the courts and punished accordingly.  Sentences imposed for these offences must act partly as a deterrent to others who might offend similarly and partly to punish and deter the offender.  A term of imprisonment is necessary and in your case there is little room for leniency on the grounds for prospects of rehabilitation because those prospects can only be considered guarded. 

19That being said, it must be acknowledged that you indicated at an early stage that you would be pleading guilty and that has avoided the need for a trial and for the complainant and other witnesses to have to give evidence in any committal or trial.  In this and other ways, it has facilitated the process of criminal justice and so you are entitled to a discount on your sentence.  It is also accepted as evidence of remorse and I note that you have expressed that in other ways as well to the medical practitioners who have assessed you recently. 

20Dr Pandurangi, a consultant psychiatrist, assessed you on 30 June 2017 to ascertain your mental state for the purposes of the plea hearing.  He considers that you have an underlying depressive illness which is currently stable, due to a combination of medications, and that the accompanying mood fluctuations from which you suffer are explained as being part of your personality and poor coping skills, rather than bipolar disorder as previously diagnosed. 

21Dr Pandurangi elaborated upon his characterisation of your personality by identifying relationship instability, intense emotions, impulsive and aggressive behaviours as well as the poor coping skills already mentioned.  He considers these difficulties would have contributed to your offending behaviour but not in a directly causal sense. 

22Dr Pandurangi had not had the benefit of reading the report provided by
Mr Martin Jackson, a neuropsychologist, which was prepared on 20 July 2017.  Mr Jackson concluded that there is clear evidence of an acquired brain injury.  Similarly, he was not aware of the conclusion by Dr Pandurangi that you do not suffer bipolar affective disorder but from a longstanding underlying depressive illness.  Hence Mr Jackson's opinion is expressed in terms of bipolar disorder being the mental illness from which you suffer, which he regards as the most important component of the issues relevant to your offending behaviour. 

23The name given to the diagnosis is really of no matter, because whatever label is applied to your state of your mental health, it should be taken into account together with the effects of your acquired brain injury to reduce by a modest degree your criminal liability.  Indeed, Mr Jackson stated:

"It is highly likely that it is a combination of inadequately treated mental health disorder and a new traumatic brain injury that played a major role in the offending behaviour in August 2016." 

24These charges represent an escalation in the seriousness of your offending and a failure to be deterred at all by previous punishment.  It suggests a risk of reoffending as well and casts doubt on your prospects for rehabilitation, as I said earlier. 

25However, your time in prison has been spent positively in that you have been in the Chilwell unit because of your need for treatment, and you appear to have benefited from appropriate medication and treatment sessions provided by Forensicare since February, as well as other programs dealing with anxiety.  This has resulted in an improvement in your depressive state.  You have also been given the responsibility of helping to care for a prisoner with cerebral palsy which appears to have contributed to your own well-being. 

26The mental health stability that has now been achieved is an important factor influencing the possibilities for rehabilitation and the associated risk of reoffending.  Mr Jackson's opinion is that ongoing stability renders that risk very low.  He has recommended that you have appropriate support in the community when you are released, specifically with a case manager from the mental health service to ensure stable accommodation and to ensure compliance with ongoing treatment.  I note that you seem to have always been compliant and there have been no problems in that regard.  Employment will no doubt also be very important for you. 

27Recently, you have been moved from the Chilwell unit into the mainstream prison where you may again become vulnerable as you seem to have been in the past resulting in those assaults.  That is a matter to be taken into account in determining the length of your sentence. 

28I was referred to the decision in Filiz v R which was a very similar case except that the assault and the offending generally was more serious.  In this case, the aggravated burglary was committed with the intention of stealing and in the knowledge that people were present in the room at the motel and you persisted even after being told to go away.  You are not charged with having entered with the intention to assault even though an assault did occur and this distinguishes it from the facts in Filiz[1]. 

[1] [2014] VSCA 212

29The theft was of a very minor nature and the injury to the complainant was not serious, although being dragged to the floor and hit on the head hard enough to cause bleeding was a serious act in itself.  This woman whom you treated so violently by venting your anger upon her is someone you have since described as having been good to you.  I am told that you were concerned about her being involved at the time with illicit drug use and there is indeed evidence suggesting that, but that in no way reduces the gravity of what occurred.

30Despite these facts and the clear justification for prison sentences of some considerable duration, I am conscious of the need to avoid double punishment in sentencing you for each offence. 

31I was also referred to the decision in Whiteford v R[2] where the total effective sentence for offending of a similar type was five years with a non-parole period of three years.  There were, in that case, two victims of the assaults which were inflicted and the injuries were considerably more serious.  The sentence was held by the Court of Appeal to be not manifestly excessive but the case is not helpful to me in determining the appropriate sentence in this case.

[2] [2016] VSCA 26

32Would you stand now please, Mr Sarson?

33I sentence you to the following terms of imprisonment: 

Charge 1 - contravening the family violence order, 12 months. 

Charge 2 - aggravated burglary, two years. 

Charge 3 - theft, one month. 

Charge 4 - recklessly causing injury, nine months. 

34The sentence for Charge 2 is the base sentence for the purposes of cumulation.  I order that three months of each of the sentences for Charges 1 and 4 be served in cumulation upon the base sentence.  That results in a total effective sentence of two years and six months. 

35I order that you serve a minimum period of one year and six months before being eligible for parole.  That allows for a considerable period for support in the community after your release.  This gives some weight to your newfound mental health stability which is critical to your rehabilitation. 

36If you had pleaded not guilty to these charges, I would have sentenced you to three and a half years' imprisonment with a non-parole period of two and a half years.  You have been in custody for 333 days. I declare that time to be reckoned as already served and that will be noted on the court record. 

37I want to check a couple of things that occurred to me as I was reading the sentencing remarks.  The first one of course is that the charge is recklessly causing injury.  I took the wording from the prosecution summary that Mr Sarson intentionally struck the complainant.

38MR de KRETSER:  Yes.

39HER HONOUR:  And that is what I read out.  Now, I just wanted to check the wording of the prosecution summary in that regard. 

40MR de KRETSER:  Yes, I think the word "intentionally" comes from the prosecution summary; the charge is still reckless cause injury.

41HER HONOUR:  All right.  You are content with that, are you?

42MR de KRETSER:  Yes, Your Honour.

43HER HONOUR:  All right.  I will leave it then.

44Any further matters?

45MR de KRETSER:  No, Your Honour.  

46HER HONOUR:  Mr Sarson can be taken now.  Thank you, officer.

47MR de KRETSER:  As Your Honour pleases.

48OFFENDER:  Thank you, Your Honour. 

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