OPP v Toms
[2019] VCC 2091
•16 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-18-0186
IN THE MATTER of the contravention of a
Community Correction Order by SAMUEL TOMS
| OFFICE OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL TOMS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2019 | |
DATE OF SENTENCE: | 16 December 2019 | |
CASE MAY BE CITED AS: | OPP v Toms | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2091 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Contravention of Community Correction Order given by way of sentence on appeal from the Magistrates’ Court – offender is aged 33 years – Acquired Brain Injury (ABI) from infancy resulting in cognitive and behavioural issues – long-term drug abuse – many failures by offender to attend treatment and rehabilitation and supervision appointments throughout the course of the order – urine analysis indicates ongoing illicit drug use – sentence on appeal from Magistrates’ Court set aside pursuant to s84AS of the Sentencing Act 1991 and offender resentenced to a total effective sentence of 130 days imprisonment – convicted and discharged on charge of Contravention of a Community Correction Order.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms D Gang | Office of Public Prosecutions |
| For the Offender | In person |
HER HONOUR:
1 Samuel Toms, you have pleaded guilty to one charge of contravening a Community Correction Order. This offence carries a maximum penalty of three months’ imprisonment.
2 On 22 January 2018, you were convicted at Melbourne Magistrates’ Court of four charges of theft, two charges of attempted theft, one charge of failing to answer bail, two charges of committing an indictable offence whilst on bail, four charges of driving whilst disqualified and one charge of reckless conduct endangering life. You were sentenced to an aggregate term of imprisonment of six months, with 33 days pre-sentence detention reckoned as time already served under that sentence. You were also fined an aggregate of $1,200 and ordered to pay $120 statutory costs.
3 You appealed against the sentence of the Magistrates’ Court and the matter came on for hearing initially on 5 April 2018. On that occasion, you were represented by Mr Hancock, who was very familiar with your circumstances. It became apparent that you had cognitive and behavioural difficulties, as well as a longstanding substance abuse problem with both illicit drugs and alcohol.
4 As a neuropsychological report from Dr Linda Borg dated 5 August 2016 (Exhibit “2”) expressed an opinion that you presented with deficits consistent with a hypoxic brain injury, secondary to complications associated with bacterial meningitis as an infant and had an Acquired Brain Injury (ABI), the matter was adjourned to 6 June 2018 so that you could be assessed for suitability for a Justice Plan/Community Corrections Order.
5 Unhappily, it became apparent by 6 June 2018 that you did not come within the definition of intellectual disability, according to a letter from the Department of Health and Human Services dated 24 April 2018, with an attached assessment by Laverne Mina, Manager, Disability Client Services Western Melbourne Area, dated 19 April 2018. (Exhibit “C”)
6 As you were then living in Mildura with your parents, the matter was further adjourned to 13 June 2018, so that the availability of services to support you in Mildura might be investigated.
7 On 13 June 2018, I made an order setting aside the orders imposed at the Magistrates’ Court on 22 January 2018 and, in their stead, convicting you and sentencing you to an aggregate term of 106 days’ imprisonment (a period reckoned as already served under the sentence), together with a Community Correction Order for a period of 18 months with mandatory terms of supervision, treatment and rehabilitation for drug and alcohol abuse and mental health issues, participation in other rehabilitative programs as directed by the regional manager, a residence condition and judicial monitoring.
8 Following the making of the order, you have appeared before me for judicial monitoring on 14 September 2018, 14 November 2018, 15 February 2019, 11 April 2019, 4 July 2019, 19 July 2019, 23 August 2019, 3 October 2019, 20 November 2019 and 11 December 2019.
9 It became apparent that there were limited services to assist you in Mildura and, accordingly, on 15 February 2019, the order was varied to enable you to reside at a unit at Docklands, which had been purchased for you by your parents, and supervision of your order was transferred to Melbourne. Although, at times, there appeared to be some progress made by you under the order, your circumstances, particularly your difficulties with regulating your emotions and long-term substance abuse, presented a very significant challenge for your case manager supervising the order.
10 The various reports provided for judicial monitoring hearings have indicated a reluctance to engage in treatment-related conditions. Indeed, it was a major effort to have you ultimately attend an appointment so that you could be assessed in order to make an application for a National Disability Insurance Scheme package. Various strategies have been tried by the Office of Corrections with limited success.
11 Unfortunately, it became apparent during the order that you were again using illicit drugs in circumstances where you were already on a methadone program. On occasions, you have appeared to be affected by substances when attending for appointments with your case manager at the Office of Corrections and, indeed, appearing in court for judicial monitoring. Unhappily, there has been a lack of cooperation by your treating general practitioner with the Office of Corrections until very recently. This has made it difficult to co-ordinate treatment for your mental health, as well as treatment for your substance abuse issues.
12 A recent drug screen on 3 December 2019 detected opiates, amphetamines, Benzodiazepines and alcohol. Two days later, you were arrested by police and remanded in custody and have been charged with further offences of burglary and theft, which are listed for mention at Sunshine Magistrates’ Court on 24 January 2020. You were still in custody when you came before me for the contravention hearing on 11 December 2019.
13 It is an understatement to say that supervision of your order by the Office of Corrections has been a very labour-intensive task as, indeed, has been the judicial monitoring of the order. Throughout the whole process, you have been supported by your loving parents, who still live in Mildura, where they run their business. They are clearly devoted to you and are regularly in touch with you and do all that they can to support you. Your mother has been present via videolink from Mildura for all judicial monitoring hearings and has often been accompanied by your father. Both of your parents were present for the contravention hearing. I think your mother summed up the situation at the hearing on 11 December 2019 when she stated that she does not believe that you are completely able to look after yourself in the sense that, when you have free time on your hands, you get involved with other people of an antisocial inclination and make poor decisions which get you into trouble. She firmly expressed the view that you really need to live in a community-style house with others, where you are not on your own and have company and support around you. She stated that you are, by nature, a kind, good person, but your brain injury causes you to behave impulsively and make bad decisions.
14 It is very distressing to see your history. For many years it seems that you had been incorrectly diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) and a personality disorder. Dr Borg’s report makes it plain that this is an inaccurate depiction of your deficits. She states that your cognitive deficits and associated psychiatric symptoms, which include low grade psychotic features, namely paranoia, are a direct consequence of your brain injury which has permanently altered the course of your neural development. It seems that, over the years, your parents have tried to get assistance for you, but somehow you just “fell through the cracks” as you did not meet the criteria for an intellectual disability and, as mentioned, had apparently been misdiagnosed.
15 It is plain from a neuropsychological report co-authored by Mr Joe Goulter and Dr Melissa Slayo at ARBIAS dated 11 September 2018 (Exhibit “F”), that you suffer extremely severe levels of depression, anxiety and stress. These are layered upon a range of executive function deficits, such as impulsivity and reduced performance. Such deficits are in the moderately to severely poor range for visual reasoning, handwriting, learning and recalling lengthy verbal information, recalling unstructured verbal information after delay, learning and memory of visual information and executive function, such as complex planning and organisation.
16 These deficits have made it very difficult for you to remember things and to keep appointments. It is plain that you become confused or overwhelmed when presented with difficult or complex language or too much information. You appear to have little insight into your deficits and, for this reason, it has been difficult for you to implement strategies to control your impulsivity.
17 Both Dr Borg’s report and the report from ARBIAS point out the need for simple instructions, a daily routine, the need for reminders about such things as appointments, the need for sufficient time to complete various tasks, and an understanding that you cannot be expected to make instant decisions.
18 I accept that there is a sufficient causative link between your impaired mental functioning and your offending to attract the principles in R v Verdins.[1] This means that the moral culpability for your offending is reduced and denunciation is less likely to be a relevant sentencing objective. It impacts upon the kind of sentence imposed, as well as operating to moderate the emphasis on both general and specific deterrence. I also take into account that a prison sentence would weigh more heavily upon you than on a person without your mental impairment, because your impulsivity, agitation and difficulty with emotional regulation, as well as your inability to understand communications unless they are simple, will make interaction with both prison staff and other prisoners complicated and frustrating. I also find that, given that you do suffer high levels of depression and anxiety, that there is a risk that imprisonment could have an adverse effect on your mental health.
[1](2007) 16 VR 269
19 The offences for which I must sentence you are repeated dishonesty offences, failing to answer bail, committing indictable offences whilst on bail, repeatedly driving whilst disqualified and reckless conduct endangering serious injury, involving most erratic riding of a red Vespa which necessitated a police pursuit. These offences come on top of a significant criminal record, with many prior convictions for driving whilst your licence was either suspended or disqualified, a conviction for driving at a dangerous speed, and many prior convictions for theft. Over the years since 2004, you have appeared many times in the Magistrates’ Court and been given a variety of sentencing dispositions, including two Community-Based Orders in 2008 and 2006, and several suspended sentences of imprisonment, which you breached. It appears that you did not breach two subsequent Community Based Orders made on 30 November 2006 and 23 March 2012, and there were gaps between your court appearances of some 16 months between November 2006 and March 2008, and of 2 years and 7 months between March 2012 and October 2014. It seems that the latter period of a lack of offending coincided with you being married, and the failure of that marriage hit you very hard. I was hoping that a disposition of a Community Correction Order may be rehabilitative if appropriate supports could be put in place, but it has not been successful.
20 I am conscious that your Acquired Brain Injury and consequent deficits cause you to have a frustrating, lonely and empty life. You suffer very significant anxiety and become very agitated and cause offence to others. You seek to soothe your anxiety by substance abuse. You present a sad and difficult sentencing challenge and your case cries out for alternative sentencing options which are not available. However, the community must be protected and the law must be upheld, and the material before the Court indicates that you are at high risk of re-offending.
21 Apart from your underlying brain injury, your abuse of illicit drugs and alcohol is a very significant problem. You began to use heroin either in the late 1990s or early 2000s, and have been on a methadone program for a significant period of time. You have a tendency to go off the rails and abuse alcohol and illicit drugs, and your general practitioner has expressed concern to the Office of Corrections recently that, even though she has been medicating you in an endeavour to maintain stable mental health, your mental health will deteriorate if you continue to abuse drugs and alcohol.[2] Indeed, the ARBIAS report last year indicated that, since you had last been assessed in 2008, there were two main areas of significant decline, namely learning and recalling of unstructured information and generating ideas without a structure. The authors of that report considered that your history of substance abuse was most likely responsible for such decline, and noted that, as the brain ages, it becomes more vulnerable to high levels of alcohol and drug abuse. Thus, it was highly advised that you adopt a pattern of abstinence to allow recovery and prevent further cognitive loss.[3]
[2]Exhibit “S”, Addendum Report from Melbourne Community Correctional Services, pp 3-4
[3]Exhibit “F”, p 8
22 I have determined that the only appropriate sentence is to set aside the orders that I made on 13 June 2018 and to re-sentence you to a term of imprisonment. It is depressing to have to do this after so much effort was put into trying to assist you. However, you have left me with no other option. Further, a period of enforced abstinence from illicit drugs and alcohol may well work to your rehabilitative advantage. It is my impression that, if an opportunity is not seized very soon to get you to engage with substance abuse and mental health treatment, then your cognitive and behavioural function will deteriorate and any chance of effective rehabilitation will be lost and you will go on being a menace to society and having a wasted and unhappy life.
23 There have been two positive factors that, in recent times, have emerged from all the hard work put in by the Office of Corrections to try to find supports for you. At the hearing on 11 December 2019, Ms Robina Wollenberg, from Mind Australia Ltd (“MIND”), attended to support you. MIND is a specialist mental health provider registered as a National Disability Insurance Scheme provider. Ms Wollenberg and Ms Sheree Drever, have assisted you in making application for a National Disability Insurance Scheme (“NDIS”) Plan. Your application was made on 29 October 2019 and Exhibits “T” and “U” from MIND, detail the frustrating delay in having that application processed.
24 Ms Wollenberg stated that she was hopeful that you would receive an NDIS package by January 2020, which would enable MIND to assist you in a number of ways which may include finding a place in one of two community houses (in either Albert Park or Armadale), which offer a supported independent living program with a mental health focus. She stated that you had been linked in with Ms Madlen Toumbourou at MIND’s Abbotsford Centre, with a view to providing practical and motivational support for you, but, obviously, this is not possible whilst you are in custody. She stated that you struggle with trust and need slow, steady community support from a worker who needs to build up a trustful relationship with you. She believed that MIND would be able to assist you with vocational support because your self-esteem is very low. However, at the present time, MIND, like many other community activity support groups, has lost funding under the NDIS, but is hopeful that that will be rectified.
25 Ms Wollenberg said that she and Ms Drever found that you had engaged well with them since July 2019 when they began making weekly visits to your home. She stated that she and Ms Drever are committed to continuing to work with you once you are released from custody and have your NDIS package in place.
26 Also present to support you at the hearing on 11 December 2019 was Mr Liam Furlong, community mental health worker with Co-Health Inner Space. Your case manager with the Office of Corrections had referred you to Mr Furlong, who first saw you on 15 July 2019. The report from the Office of Corrections, marked as Exhibit “R”, noted that, as at the date of the report (30 October 2019), you had attended seven appointments with Mr Furlong, who reported that he was focusing largely on progressive emotional regulation and social connectedness. The Addendum Report from the Office of Corrections (Exhibit “S”), noted that, since that time, you had continued to see Mr Furlong on a weekly basis.
27 Mr Furlong told the Court that he had established a good rapport with you. He noted that he would accommodate your deficits by calling you the day before an appointment, and would arrange to catch up the following day at a regular time and place. He stated that making scheduled plans with you is difficult and you need to be reminded, and he is conscious of this. He had arranged for you to be assessed at the Victoria Behaviour Change Centre at 2.00pm on 5 December 2019, and you had attended that appointment. Unfortunately, you were arrested by police later that night and remanded in custody.
28 He stated that you had struggled with your Community Correction Order because you felt that the Office of Corrections were focusing on negative features of your life, such as those with whom you associate and whether you are using drugs, and you felt constantly judged, and would say to him “I feel they don’t know me”. He stated that you had told him that you used drugs because you feel so anxious and they help make you feel “normal” and you go to see your general practitioner for treatment to help you manage your feelings, but you still experience a great degree of distress. He noted that your anxiety was such that he and the MIND workers had made use of a therapy dog to good effect. He stated that, upon your release from custody, he would hope to be able to continue working with you by way of recovery-based community support, which he considered to be appropriate for you.
29 I consider that all those people who have endeavoured to work with you should be congratulated on their efforts. Whilst the Community Correction Order has not been a success, it is encouraging that you have achieved some level of rapport with the workers from MIND, and also with Mr Furlong. It can only be hoped that, by the time you are released from custody, your NDIS package will be in place and that those persons with whom you have achieved a rapport will still be available to assist you in the community. It is clearly a very important priority that you focus upon not taking illicit drugs and alcohol, try to engage with services to look after your mental health and, when you are well enough, try to get help with getting a job. This is what I had hoped to achieve through the Community Correction Order, but it simply has not worked, and there is no point in extending it beyond the date of its expiry, 12 December 2019. However, in determining the sentence which I intend to impose, I have taken into account the extent to which you did comply with such an order.
30 Pursuant to s83AS(1)(c) of the Sentencing Act 1991, I cancel the order made by this Court on 13 June 2018. I propose to sentence you for the offences in respect of which that order was made as though you had just been found guilty of those offences. On Charges 1, 2, 3, 4, 5, 6, 8, 9, 11, 13, 15, 16, 17, 20, 25 and 27, you are convicted and sentenced to an aggregate term of imprisonment of 130 days. I declare a period of pre-sentence detention of 106 days (served prior to the making of that order on 13 June 2018), and a further five days (from the date upon which I remanded you in custody on these matters on 11 December 2019), making a total of 111 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
31 On Charges 6, 8, 9, 17, 20 and 25, all Victorian licences and/or permits held by you are cancelled and you are disqualified from obtaining such licence or permit for a period of 18 months. That order commences from the date upon which you were convicted of these offences on 13 June 2018.
32 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the sentence imposed would have been an aggregate sentence of 18 months imprisonment, with a non-parole period of nine months.
33 I find the charge of contravening a Community Correction Order proven, and you are convicted and discharged on that charge.
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