R v Charles
[2009] VSC 667
•13 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1446 of 2008
| THE QUEEN |
| v |
| PARRISH CHARLES |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 30 September 2009, 30 October 2009 | |
DATE OF SENTENCE: | 13 November 2009 | |
CASE MAY BE CITED AS: | R v Charles | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 667 | |
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CATCHWORDS: Guilty pleas to intentionally causing serious injury and theft – Victim was stabbed by passenger in his taxi – Random, unprovoked and frenzied attack – Prisoner stole taxi after attack – Long and complex medical history but no link to offending conduct – Principles of R v Verdins and R v Tsiaras not applicable – No prior convictions – TES: 9 and a half years imprisonment with a non-parole period of 6 and a half years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Borg | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Melasecca, Kelly & Zayler Barristers & Solicitors |
HER HONOUR:
Parrish Charles, you have pleaded guilty to one count of intentionally causing serious injury and one count of theft. No prior convictions are alleged against you.
At about 2.40am on Tuesday 29 April 2008, you hailed a taxi outside the Alfred Hospital in Commercial Road, Prahran. You directed the driver, Jalvinder Singh, to an address in Wellington Street, Clifton Hill, where you had previously lived. Once there, Mr Singh stopped the taxi and, as he was waiting for you to pay, you leant over and stabbed him in the stomach, having produced a knife from your trousers. You then grabbed Mr Singh around the neck with your right hand and, in that way holding him back into his seat, you then stabbed Mr Singh a further four times. Mr Singh undid his seatbelt and managed to break free from your hold. He got out of the taxi and tried to ring “000” but then collapsed after walking a short distance.
You got into the driver’s seat of the taxi and drove off east along Hodgkinson Street. You attempted to turn into Gold Street, and drove off onto the footpath and collided with a brick fence. You then ran from the taxi, dropping your jacket as you went, and discarding the knife in the front yard of one house and your cap on the wheelie bin in the front yard of another. In the meantime, the taxi had rolled along the footpath in Gold Street and came to rest against a light pole.
At 5.40am, Mr Singh was found by the driver of a waste disposal truck as he drove down Hodgkinson Street. Mr Singh was laying face down, straddling the gutter, and he appeared to be drenched in blood and groaning. The driver called the police and ambulance, both of whom attended. The police found the taxi abandoned 35 metres east of Wellington Street.
Mr Singh was taken by ambulance to the Royal Melbourne Hospital. He had suffered five stab wounds; one, a penetrating wound to the centre of his chest, three penetrating wounds to the left side of his upper back and one penetrating wound to the right lower back. The injuries were considered to be life-threatening critical wounds which were severe and which required operative intervention to stabilise. Mr Singh also suffered a cardiac arrest and required a massive blood transfusion. Mr Singh was placed in an induced coma and spent seven days in intensive care and a total of 13 days in hospital. It was reported by Dr Daniel Wong, the trauma and surgical registrar at the Royal Melbourne Hospital, that Mr Singh was gravely unwell and had made a “miraculous recovery”.
You were arrested at 7.25pm that night. You were subsequently interviewed by the police. You told them that you could recall very little of the previous evening, although you acknowledged that your image appeared on the closed circuit footage and you identified the jacket, baseball cap and the hunting knife as belonging to you. You also recalled being at the Alfred Hospital, but you did not recall driving the taxi or how you got home. You told the police that when you woke up on the morning of 29 April, you were concerned that something was seriously wrong and that you remembered waking up with cuts on your hands, but otherwise your recollection of 28 April was patchy. You also told the police that you had been suffering blackouts and that there are patches of days which you cannot remember. You told the police that your medical condition had been going downhill for the last few months, that you had numerous blackouts over that period and that you had reported these events to the medical staff involved in the management of your health care.
You have maintained, since 29 April 2008, that you have extremely limited recall about the events the subject of these offences and there is no suggestion that your amnesia is not genuine.
In 1985 you were diagnosed as having HIV, and these offences are to be placed in the context of your ongoing dissatisfaction with the treatment you have received as a patient at the Alfred Hospital and in your conduct in the days and hours before these offences. You attended the Alfred Hospital three times in the week prior to these offences; twice by ambulance and once being driven there by your partner. You were disgruntled with the treatment you had received and, indeed, on Sunday 27 April you left the emergency department after a dispute with staff. On the following day, the Monday, you wrote an email to the Alfred Hospital which was copied to Government Ministers and media outlets, expressing your dissatisfaction with the hospital and their treatment of you.
Later that evening, you asked a visitor to your home to drop you off in Richmond on his way home. You then hailed a taxi in Bridge Road and asked that taxi driver to take you to the Thomastown Railway Station, which he did, but, once, there, you asked to be taken home. You had insufficient funds for the fare and that taxi driver, being concerned as to whether he would be paid, hailed a policeman to whom you provided your name and address. It was agreed that the taxi driver would take you home, which he did, and you paid him using your partner’s bankcard. You then went inside your house, got the car keys, apparently intending to drive to the home of your visitor in St Kilda, as it appears that you considered that he was liable for that taxi fare. Instead, you drove your partner’s car to the Alfred Hospital. You did not, however, go inside the hospital, and from there, the events the subject of these two offences unfolded.
Your medical records held at the Alfred Hospital were reviewed by Dr Odell, forensic physician with the Victorian Institute of Forensic Medicine. Dr Odell reported that you have a long and complex medical history at the Alfred Hospital, mostly related to chronic HIV infection, with many physical and psychiatric problems over the years. Your HIV infection had been well controlled on medication for many years, and you had also had conflicts with the hospital over treatment arrangements. Dr Odell then summarised, in chronological order, your attendances at the hospital in the months prior to this incident.
It was noted on 16 March 2007 that you presented with self-diagnosed psychiatric conditions, the diagnostic impression was borderline traits with general anxiety, there were no features of psychosis or mania. On 16 May 2007, you reported with a history of chronic anxiety, panic and agoraphobia. An assessment was made of a long history of anxiety, depression and suicidal ideation, complicated by past substance abuse and interpersonal conflicts.
On 9 January 2008, you reported a sudden onset of depressive episodes which occurred weekly. There were no psychotic or manic symptoms and the diagnostic impression was that the mood swings were not due to major depressive illness or bipolar disorder. The doctor on that occasion did not believe any psychotropic medication was required, although inpatient psychological assessment was arranged, and it appears from the records that that took place on 28 February 2008 and which was noted to be unremarkable. Also on 28 February 2008, you were noted to be normal with some anxiety, and it was said that you had decided to take a break from your medication to see whether that was causing mood swings. A month later, you were given an appointment for counselling, relaxation therapy and a small dose of Valium. Your attendance on 26 April 2008, when you were brought to the emergency department by ambulance complaining of pain and headache and appearing agitated and stressed, you told the doctor that you had ceased your anti-HIV medication two weeks previously and you described two episodes of confusion preceding blackouts lasting about an hour occurring in the previous month, but no medical treatment had been sought on those occasions. It appears that a disagreement that you had with a nurse on that occasion culminated in you discharging yourself from hospital, but there were no abnormal findings on physical examination and no investigations performed or ordered. There was no objective record of any recent physical medical condition which could have caused a blackout.
There is nothing in your medical records as reviewed by Dr Odell which suggests that you were suffering from a psychosis or psychiatric condition in the days leading up to these offences and nothing in the reports of Mr Newton, clinical forensic psychologist, or Dr Lester Walton, consultant psychiatrist, which suggests that to be the case or in any way explains your conduct.
Your antecedents and personal circumstances were described in the report of Dr Lester Walton, which was tendered in evidence as Exhibit B. Dr Walton saw you on a regular basis in his role as treating psychiatrist at Port Phillip Prison while you were on remand. He described you as exhibiting clinically significant anxiety and depressed mood which was occurring as a reaction to multiple medical and other difficulties, although in his opinion you were then benefiting from tranquilising medication. Dr Walton describes you as rather distrustful of medical authorities, but that you do not exhibit clinically significant paranoia. In Dr Walton’s opinion, there was no other evidence of psychosis. He was of the opinion that there was nothing to suggest that you were in the grip of a major psychiatric disorder around the time of your offending despite your amnesia.
The report of Mr Patrick Newton was tendered in evidence on your behalf as Exhibit 1. You gave Mr Newton a history of mental disturbance dating back ten years. At the time you saw him, you were prescribed anti-depressants and anti-psychotic medication. You reported to him a history of depression, anxiety and psychosis and being under the care of psychiatrists.
Mr Newton reported that you suffer anxiety as a result of these proceeding and arising from concerns about your physical wellbeing. You reported to him what he described as “an attenuated version of typical emotional and behavioural symptoms”, which he said could represent the residual impact of chronic depressive mood disturbance which you have suffered for ten years. You are, in his opinion, at risk of more serious depressive episodes developing at times of personal crises and that you would benefit from ongoing medical and/or psychological treatment. However, Mr Newton concluded that while you reported a history of psychosis, there was no evidence of active psychotic symptoms and that your reality testing and moral reasoning were both intact. You do, however, ruminate obsessively about your physical health and you experience pessimism and hopelessness about the future and have become quite isolated socially. Mr Newton opined that for these reasons you may find prison more onerous and that you would experience considerable distress over and above that experienced by the normal prison population.
It is apparent from the reports of Dr Walton, Mr Newton and Dr Stephen Rowles, your general practitioner, tendered in evidence as Exhibit 4, that you experienced such difficulties while on remand. I note in this regard that Dr Walton describes you as a challenging candidate to assist medically in the prison environment and that, ideally, you should be treated by a specialist facility.
On 30 September 2009, when you were to be sentenced in respect of these offences, your counsel sought and obtained a further adjournment to enable further medical reports to be placed before the Court.
Subsequently, on 30 October 2009, reports of Dr Mark Jeans, consultant psychiatrist at the Alfred Hospital, Exhibit 5, Dr Vicki Shepherd, consultant psychiatrist at St Vincent’s Mental Health, Exhibit 6, and Mr John Singleton, counsellor with Positive Living, Exhibit 7, were tendered in evidence. Those reports confirmed and detailed your history of depression and anxiety.
The report of Dr Jeans extensively reviews your clinical file held at the Alfred Hospital since October 2002. It notes that in 2003, you reported blackouts which were not associated with substance use and a neurological review established cognitive function within average range. In November 2006, you were diagnosed with generalised anxiety disorder and, in Dr Jeans’ opinion, as the presentation of your mental state varied considerably between reviews, he could not say how it would have impacted upon your behaviour on the night of the offences, but Dr Jeans anticipated that you will continue to experience difficulties with fluctuating mood and become stressed about your own health and that you would benefit from ongoing psychiatric review so that such fluctuations in your mood could be reviewed.
Dr Vicki Shepherd treated you between March and September 2009 for depressive symptoms and placed you on antipsychotic medication to ensure stability of your mental state and functioning in the context of your current stressors, but in her opinion it would be now reasonable to taper you off psychotic medication but to continue with your antidepressants, as this medication effectively addresses your anxiety and depression.
Mr Singleton, in his report, stated that you were receiving supportive counselling pertaining to persistent problems with anxiety management on 14 sessions over a 13 month period, although he described your attendance as intermittent and inconsistent. He opined that the management and care of your HIV and physical health has been an ongoing source of anxiety and agitation, and that when he last saw you in January 2008, you were highly agitated and anxious about your frustrations with ongoing issues with the Ministry of Housing and the Alfred Hospital.
You were 45 years old when you committed these offences. You are now aged 46. You have no prior convictions. You are presently in receipt of a disability pension, and you were recently studying for a Bachelor of Social Work Degree. Your last significant employment was with a software company, but that ended in 2004. It is apparent from the numerous testimonials tendered on your behalf as Exhibit 2 that you have spent considerable time and energy promoting and advocating issues and causes within the HIV/AIDS community.
The various testimonials tendered on your behalf speak of your enthusiasm, energy, your personality and character. Ms Eleanor Brash gave evidence on your behalf. She has known you for 30 years and has never known you to be violent. She spoke of a change in your demeanour around 2003 when you became more preoccupied with medical issues and became more depressed. Ms Annie Boulton, a nurse with the Royal District Nursing Service, has known you as a patient of that Service since 2007. She saw you on the weekend preceding these offences and concluded that you were physically unwell and, in her opinion, needed to go to hospital, which, of course, you did. Ms Boulton also said that your treatment is now managed by St Vincent’s Hospital and you appear to be in a good therapeutic relationship with that Hospital. Your HIV status is well managed within the prison environment and Mr Lavery has submitted that, as you are now being treated by St Vincent’s Hospital and presumably will continue to be so while in custody, the source of your angst at the time of your offending has been eliminated.
I turn now to the nature and gravity of the offences here committed. Intentionally causing serious injury carries a maximum penalty of 20 years’ imprisonment, and the crime of theft carries a maximum penalty of ten years’ imprisonment. Thus, Parliament regards them both as serious offences and here, in particular, your conduct in respect of the offence of intentionally causing serious injury is a serious example of that offence.
This was a very serious assault, random in the sense that your victim was unknown to you and, according to Mr Singh, the attack was totally unprovoked and unexpected. However, the presence of the knife concealed in your trousers is indicative of a degree of premeditation and of your intention to seriously injure someone. Although you stole the taxi, you did not take any money or any items of value from it or from Mr Singh. In these circumstances I am satisfied that robbery was not the motive for your attack upon Mr Singh, although there is no explanation for your conduct and none is forthcoming. Your counsel, Mr Lavery, has submitted that your conduct on the night was irrational; that may well be so, it was certainly erratic and, to a degree, in the hours leading up to the offences, purposeless. Such conduct in a 45 year old man with no prior convictions, who is not suffering from any psychiatric or psychological impediment, may well be said to be inexplicable, but I do not consider the fact that you cannot recall the offences or provide a reason for them bespeaks the irrationality of your conduct.
Your counsel has submitted that I should infer that there is a nexus between your mental state and your offending conduct. That is, that I should infer there is a link between your physical and psychological condition and the commission of these offences because you were depressed, anxious, seeking treatment in the days beforehand and your behaviour appears to be irrational and inexplicable. At its highest, your mental state at the time may be said to be one of chronic depression and anxiety, but none of the medical evidence suggests there is any link between that condition and your offending. Dr Odell reported that you specifically mentioned blackouts only once at the Alfred Hospital, and that was during your attendance at the emergency department on 26 April. On that occasion, there was no abnormal finding on examination and no investigations were performed or ordered. Prior to that, Dr Odell noted that it had been mentioned that you suffered from chronic anxiety and panic attacks on many occasions, and these may have corresponded to the blackouts you had previously mentioned. There was, in Dr Odell’s reading of your history, no objective evidence of any physical medical condition which could have caused a blackout, and it stated previously neither Mr Newton nor Dr Walton say you were suffering from any psychosis or any psychological impediment then or now, other than that you were suffering chronic depression and anxiety, as it appears you had been for the past ten years. Dr Walton, in his report, commented that despite your amnesia, some evidence of such psychiatric disturbance ought to have been discernible prior to or after the event, and there is no such evidence. Further, in his experience, persons in highly aroused states of agitation and anger, as commonly accompanies fairly extreme violence, often suffer from memory loss.
I am not prepared to infer that your mental condition related to your offending conduct. The evidence of the psychiatrists, Dr Mark Jeans, Dr Vicki Shepherd and Dr Walton, and the evidence of the psychologist, Mr Patrick Newton, and Dr Odell does not suggest that there is any physical, psychiatric or psychological connection beyond your chronic depression or anxiety to your offending conduct. The fact that you have little or no recollection and that your conduct may be said to be erratic does not of itself mean that you were acting irrationally, nor does it necessarily mean your conduct is inexplicable, although presently by reason of your amnesia, it is unexplained.
In these circumstances, where there is no evidence that there is a relevant causal link between your mental state, which was one of chronic depression and anxiety, and your offending conduct so as to reduce your moral culpability, I do not propose to apply the principles of Verdins and Tsiaris so as to moderate considerations of general and specific deterrence. I do, however, take into account and give due weight to the fact that you do suffer from chronic depression and anxiety and that your physical health is compromised by reason of your diagnosis of HIV.
In sentencing you I take into account and give you a discount for your pleas of guilty. I take into account also that by reason of your pleas you have saved the community the cost of a trial and, in particular, Mr Singh the ordeal of one. I take into account also that in the record of interview you acknowledged your responsibility for the offence and expressed your remorse for your conduct and empathy for your victim, although you tended to blame the Alfred Hospital for your predicament and, consequently, that of Mr Singh. (See question 186 of the record of interview).
I take into account also that you are a person of good character, that you have no prior convictions and that, at the age of 46, you will be serving a sentence of imprisonment for the first time and that it will be a substantial one. I take into account also that you have been diagnosed as suffering chronic depression and anxiety, the genesis of which is, in part, your HIV status. I take into account also that you have been diagnosed with HIV and that, combined with your depression and anxiety, may render the prison environment more onerous for you than would otherwise be the case.
I take into account also your prospects of rehabilitation. You have the support of your partner of five years’ standing. You are assessed by Dr Walton to be of normal intelligence. It appears that you are articulate, you are an able advocate on your own behalf and on behalf of others, and you have the capacity to pursue tertiary studies. In these circumstances, where you have not come before the Courts previously and where you have no matters outstanding, your offending may be said to be out of character and your prospects for rehabilitation good.
Against these matters stand the nature and gravity of the offences and your role in them. Any sentence I impose must serve to punish you and act in denunciation of your conduct. Your victim was a young man, working as a taxi driver in the early hours of the morning. A taxi driver is in a particularly vulnerable position; he/she works alone and, in a confined space, is exposed to the risk that passengers unknown to him or her may pose. Your attack upon Mr Singh was random, unprovoked and frenzied. You stabbed Mr Singh five times with a knife from behind when he was restrained, initially by the seatbelt. He escaped your hold and then you stole his taxi, which removed from him one of the opportunities he would have had to have raised the alarm or to have alerted others to his whereabouts and injured state.
A Victim Impact Statement made by Mr Singh was tendered in evidence as Exhibit E. Mr Singh is now aged 24. He came to Australia in June 2007 to study hospitality. To support himself while studying, he commenced work as a taxi driver on 3 March 2008. Hence, he had been working as a taxi driver just short of eight weeks. No doubt, this was a terrifying experience for Mr Singh. He said he thought he was going to die. As a result of your attack upon him, his life has dramatically changed. He continues to suffer pain which is constant and has prevented him from playing cricket, a sport which he previously enjoyed. He has sustained extensive and prominent scarring, his memory and concentration have been affected, with the consequence of difficulties in pursuing his studies. He is now withdrawn, distrustful of people and scared and nervous when he is out at night. He continues to consult a psychologist and his general practitioner and, despite their advices, he attempted to return to work as a taxi driver but is extremely nervous in that occupation. He has been diagnosed as suffering post-traumatic stress disorder and depression, and has required a neuropsychological assessment. Clearly, these offences have had a very significant impact upon him. It follows that these offences, by reason of their nature, the manner of their commission and the consequences to the victim, are to be regarded as very serious.
Your counsel has submitted that in the circumstances before the Court, it would be appropriate to partially suspend any sentence of imprisonment. In my view, such a submission overvalues the matters put in mitigation and undervalues the nature and gravity of the offences here committed, in particular that of intentionally causing serious injury, particularly when one has regard to the degree of serious injury occasioned. In my view, a significant sentence of imprisonment actually to be served is here warranted.
Any sentence I impose must also give effect to general deterrence so that like-minded members of the community will know that if they commit such serious assaults, particularly on persons in vulnerable occupations, such as taxi drivers, they can expect salutary punishment. Any sentence I impose must also give due weight to specific deterrence. Although it is not known what instigated your offending conduct, your remorse, your victim empathy, your previous good character and your prospects for rehabilitation suggest that specific deterrence may be given less weight than would otherwise be the case.
Accordingly, I propose to convict and sentence you as follows. Count 1, intentionally causing serious injury, 9 years’ imprisonment. Count 2, theft, 12 months’ imprisonment.
Although the offences occurred as part of the one episode, they nonetheless are two discrete offences and, accordingly, I propose to order that six months of the sentence on Count 2 be served cumulatively with the sentence imposed in respect of Count 1, that is, 9½ years’ imprisonment. Your counsel has submitted that the circumstances of the offences and your personal circumstances are such that a longer than normal period on parole is here appropriate. I propose to accede to that submission, given your prior good character, your prospects for rehabilitation and the burdensome nature of imprisonment upon you which would be more onerous than that endured by other members of the prison population by reason of your depression, anxiety and HIV status. Accordingly, I propose to order that you serve a non-parole period of 6½ years. I declare that you have already served by way of pre-sentence detention a period of 277 days and I declare that pursuant to s 6AAA had you not pleaded guilty, that being only one of the factors to be taken into account, I would have sentenced you to 11½ years’ imprisonment with a non-parole period in the vicinity of 8½ years.
Pursuant to s 28(1)(B) of the Road Safety Act, I propose to cancel your licence and disqualify you from obtaining a licence for five years from today’s date.
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