R v Costa
[2017] VSC 208
•21 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0106
| THE QUEEN | |
| v | |
| TULLY COSTA | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 27 February, 11 April 2017 |
DATE OF SENTENCE: | 21 April 2017 |
CASE MAY BE CITED AS: | R v Costa |
MEDIUM NEUTRAL CITATION: | [2017] VSC 208 |
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CRIMINAL LAW – Sentence – Plea of guilty – Intentionally cause serious injury – Mental illness – Verdins principles, whether applicable – Voluntary cessation of medication – Schizophrenia – Offender under the influence of alcohol, methamphetamine at the time of the index offence – Whether moral culpability reduced – Previous example of offending whilst abstaining from medication and consuming drugs and alcohol – Significant criminal history - Prospects of rehabilitation limited – Remorse – Section 6AAA Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | The Office of Public Prosecutions |
| For the Accused | Mr P. Kilduff | Chris McLennan & Co |
HIS HONOUR:
Tully Costa, on 2 February 2017 in this Court you pleaded guilty to one charge of intentionally causing serious injury. That charge concerns your actions in stabbing Cassia Stephens multiple times at your South Yarra flat on 20 January 2016.
The maximum penalty for intentionally causing serious injury is 20 years imprisonment. It is now my responsibility to sentence you for this offence.
On 20 January 2016, you were living in Unit No 185/1 Surrey Road, South Yarra, which is a high rise Housing Commission complex. Your unit was on the 8th floor. At the time of this offence you were 40 years of age, unemployed and suffering from the mental illness of schizophrenia. You first presented to psychiatric services with psychotic symptoms in 1996 at the age of 22. Since then, you have been admitted as a psychiatric inpatient on many occasions to various psychiatric services, including to the Alfred Hospital.
At the time of committing this offence Cassia Stephens was aged 37, was unemployed and also homeless. She also suffered from schizophrenia and had also been treated for that illness at the Alfred Hospital.
On the day of the offence you were observed by other residents on the 8th floor of the apartment block to be acting erratically. At about 5.30pm on that day, you knocked on the door of Amie Slavin at Unit 88 and, when she opened the door, asked her if she had any drugs. She closed the door and, as she locked it, she heard you say ‘I need a good fucking’.
Next, you were heard knocking on the door of Caine Peterson at Unit No. 86 and, when he opened his door, you yelled at him that you were going to get him. At that stage Peterson saw a red knife in your hand and told you to go away and get some medical attention. You threatened to burn him out and tried to light a cardboard box, which was near the front door, with a cigarette lighter but Mr Peterson shut the door.
You were then heard by other residents on the 8th floor of the building walking around the corridor and elevator areas with a knife which had been attached to a length of wood. You were yelling abuse, directed mainly at Caine Peterson, and causing a general disturbance.
At 6.20pm, someone on the 8th floor called 000 in relation to your conduct.
The victim of your attack in this incident, Cassie Stephens, heard the commotion and approached you to ask you why you were angry with Caine Peterson. You offered her cigarettes and whiskey and you both went inside your apartment. Your consumption of whiskey becomes significant in relation to your mental state.
Presumably in response to the 000 call police arrived at about 6.30pm and a Sergeant Seeley went to the front door of Unit 85, your unit. When he did so he could hear Cassia Stephens saying ‘Please help, please help I’m hurt’. He then requested the assistance of the Critical Incident Response Team, and that group arrived at about 7.00pm.
Senior Constable Jacques from the Critical Incident Response Team went to your front door and tried to open the security door but it was locked. The door behind the screen door was also locked. He knocked on the screen door and as he did so heard Cassia Stephens yell out ‘Help me, get me out of here, please get me out of here’. The front door opened slightly and Jacques asked Stephens to open the door wider and unlock the screen door but the door was then closed.
Jacques told you that he was from the police and needed to speak to you and requested you come to the door and that you not hurt Stephens. You told him to “fuck off’ and then said ‘If you come in, I’ll kill her’. You were agitated and continued to abuse Senior Constable Jacques, who asked you why you were upset and if the female was okay. You then said ‘I’ve killed her, she’s dead, so you can’t talk to her’. Jacques could hear Stephens groaning and he knew therefore, she was still alive.
You then told Jacques that Caine Peterson had made threats against your daughter and suggested that Cassia Stephens was with him when those threats were made. You said therefore she was going to die. You again threatened to kill her.
A minute or two later, Jacques heard Cassia Stephens yell ‘Help me, help me, get me out of here’. She tried to open the door and Jacques could see her blood-soaked fingers at the edge of the door. Jacques then ordered the police to breach the door, which had been blocked by you with a couch and a table. Police climbed over those items to enter the unit and found you standing in a bedroom at the end of the hallway. You were arrested and an orange knife was found on the floor near where you were standing. Cassia Stephens was also in the hallway. She had a severe laceration to her right neck, other lacerations to her neck and mouth and was covered in blood. Police did what they could for the injuries and led her to an ambulance. Later, after being taken to the Alfred Hospital, she was treated, placed in a medically-induced coma, and spent some time in the intensive care unit. Her wounds included a 10-12cm laceration to her right neck, further lacerations to her neck and face and a large laceration to her lower right lip. She also had deep lacerations to her palm and the back of her hands and fingers.
Following your arrest, you were taken outside the building where this incident occurred. You were assessed by paramedics and then taken to the Prahran Police Station. At the police station a forensic medical officer examined you and concluded that you were fit to be interviewed. However, that interview required the presence of an independent third person and given that such a person could not be located no interview was conducted with you.
Your conduct was threatening, violent and very serious. There are explanations for your conduct which are associated with your history of mental illness, your non-compliance with medication and your use of drugs and alcohol. Be that as it may, the consequences for your unfortunate victim are obviously significant. Your offending was violent and obviously very serious.
Victim impact statement
Cassia Stephens has filed a Victim Impact Statement dated 21 February 2017 which refers to the effects of your very serious conduct on her. She said she has permanent tendon damage to the left hand making it difficult to grip things and heavy scarring to the neck and scarring to her chest. She suffered financially because of the need for treatment. Emotionally, she describes being fearful of returning to the same apartment block to visit a friend and, in general terms, describes a significant change in her life as a result of your actions. The physical and emotional effects of your conduct will remain with her for a long time. I take her statement into account in deciding the sentence I should impose on you.
Prior criminal history
You have a significant prior criminal history which began in 1999 with offences of theft, assault and burglary. Those offences were dealt with in the Magistrates’ Court. Thereafter you committed further offences, including offences of violence, for which you were dealt with in the Magistrates’ Court in April 2000. Those offences included assault police, resist police and other related offences. In 2001, you were again dealt with in the Melbourne Magistrates’ Court for theft, assault and theft of a motor vehicle as well as going equipped to steal and various other related offences. At that stage you were sentenced to imprisonment for three months, which was suspended for six months under s 27 of the Sentencing Act 1991 (Vic).
On 21 November 2001 you were sentenced in the County Court to 15 months imprisonment with a non-parole period of eight months for armed robbery and being a prohibited person carrying a firearm. In sentencing you the judge noted that you were released from psychiatric care only a few days earlier but at the time of the offence appeared to be affected by drugs and alcohol.
In August 2002, you were sentenced in the Magistrates’ Court for theft and failing to answer bail. In February 2003, you were dealt with in the Melbourne Magistrates’ Court for assaulting police. You were subsequently convicted of offences including breaching a suspended sentence and breaching an intervention order. You were convicted further of offences in the Melbourne Magistrates’ Court in 2003, including theft and attempted robbery as well as assault police and, likewise, in August 2003 you were again convicted of assault police and possessing a controlled weapon without notice.
By September 2005 your offending had become more serious and, on 22 September 2005, you were dealt with in the Melbourne County Court for armed robbery and common law assault, for which you were sentenced to a period of 2½ years with a non-parole period of 12 months. In sentencing you, the judge noted again that you had a serious drug problem.
Subsequently, you were further dealt with in the Magistrates’ Court for theft and again sentenced to imprisonment. In the Melbourne County Court on 27 August 2008, you were sentenced for aggravated burglary, intentionally cause serious injury, making a threat to kill and intentionally threaten serious injury and sentenced to a total effective period of 2 years and 10 months with a non-parole period of 18 months. In sentencing you in that matter, the judge referred to a report from a psychologist referring to your abuse of alcohol and illicit drugs. The judge urged you to stay off alcohol and drugs and you responded by telling him you had been clean for the 12 months you had been in custody.
More recently you have been dealt with in the Moorabbin Magistrates’ Court for unlawful assault in September 2010 and in May 2011 for breaching a suspended sentence.
It is significant that your criminal history contains several community based or community corrections orders directing you to submit to testing for alcohol and drug use as well as psychiatric assessments. Such orders began in 1999. In 1999, and again in 2000, conditions were also imposed that you undertake an anger management course. As I have mentioned, in May 2011 at the Moorabbin Magistrates’ Court you were charged with breaching a suspended sentence imposed on you the year before for unlawful assault. The suspended sentence was maintained on the basis that there were exceptional circumstances being that you were diagnosed with schizophrenia and opioid dependence. It was also noted that you had chronic back pain and congenital hypothyroidism.
Thus, the interaction between your offending, your mental state and your substance use disorder has a significant history. Your history makes it clear that you realise that to avoid committing offences you have to take your medication and stay away from drugs and alcohol.
Mental state
Against that important background I turn to your mental state. You are now 41 years old. At 22 years of age you were diagnosed with schizophrenia. All of your prior offending followed that diagnosis. Also from around that time you began engaging in drinking alcohol to a problematic extent and sought occasional assistance from Alcoholics Anonymous. Also as a teenager you used amphetamines and a year prior to this offence you used methylamphetamine.
Your psychiatric condition was explained in a report prepared by Dr John Reid, dated 17 February 2017, and which was produced on your behalf during the course of the plea. Dr Reid also gave sworn evidence during the plea hearing.
Dr Reid’s report was apparently requested for the specific purpose of providing information relating to the applicability of the principles arising from R v. Verdins.[1] to your case. Indeed these principles and the extent to which they applied were largely the focus of submissions on your behalf during the plea.
[1](2007) 16 VR at [32].
I note that the application of principles 5 and 6 are not in contention. There can be little question that given your mental state, the sentence I will shortly impose on you will weigh more heavily on you than a person in normal health and your imprisonment is likely to have a significant adverse effect on your condition. However the application of the earlier principles is more problematic, particularly principle 1 .
Dr Reid’s first contact with you appears to have been in September 2016, and he has interviewed you on four occasions at the Thomas Embling Hospital where you have been since you were arrested for these matters. He has provided a number of reports that document previous assessments.
Dr Reid described you as a 41-year-old man with schizophrenia, intellectual impairment and substance use disorder.
He said that you received the diagnosis of schizophrenia during an admission to the Alfred Hospital when you were 22 years of age and had your first contact with a psychiatrist at that stage. Dr Reid thought that you had been admitted to that hospital on four or five occasions. Your mother indicated that your first admission to hospital was in about 1997, but you have had many relapses of psychosis and hospital admissions since then. Your admission to the Alfred Hospital in 2007 was for a period of three months. It would seem from your description of your history that although you were taking medication, you were not doing so ‘all the time’.[2] Although being diagnosed with schizophrenia, you apparently do not hallucinate but rather experience intermittent episodes of paranoia.
[2]Dr Reid report at para [13].
In your interview with Dr Reid on 1 September 2016, you had some memory of the events surrounding the attack on Cassia Stephens, though by 17 February 2017 you claimed to have no memory at all.
According to the earlier interview, you informed Dr Reid that you had ceased to take your medication about a week before the offence, although continued to take some of it. The medication you ceased to take was Olanzapine, though you continued to take a drug called Suboxone. You could not say why you had ceased to take your medication. You also informed Dr Reid that you had been drinking heavily during that week and then using cannabis and started getting sick. He described you as being frightened and paranoid and thought people were out to kill you.
You apparently told Dr Reid that you developed a belief that your neighbours were intending to kill you and that you had ‘tried to attack them’ using knives from the kitchen. That description varied later in the conversation. You said you had an incomplete recollection of the evening and said that you had never met Cassia Stephens and could not recall her appearance. You claimed to have no understanding of why you had done what you had done.
During your interview with Dr Reid on 1 September 2016 you expressed a level of regret or remorse for what you had done describing how you had ‘cried your eyes out about [the attack]’ and expressed concern over Cassia Stephens well-being and recovery. However you seemed not to take individual responsibility for the offending rather blaming it on your condition and your excessive consumption of alcohol and marijuana at the time.
Dr Reid’s opinion was that you are properly diagnosed with schizophrenia and that you have an intellectual impairment which is likely to be connected with a history of hypothyroidism. You also have, in his opinion, a history of substance use disorder in relation to alcohol, cannabis, methylamphetamine and opiates.
In Dr Reid’s opinion, at the time of committing this offence you were experiencing a relapse of your psychotic disorder, which promoted persecutory ideation and impaired your ability to moderate your behaviour and engage in a process of appropriate judgment of your actions. Dr Reid noted that these functions are likely to have been further impaired by the effects of alcohol and methylamphetamine. As to that, he said ‘It is not possible to quantify the relative contributions of psychosis and exogenous substances to these impairments’. He added:
The precipitation of Mr Costa’s relapse of psychosis is likely to have been promoted by non-compliance with antipsychotic treatment in the context of substance abuse.
He further added:
It is also of note that his intellectual impairment, stemming from his early developmental problems, limits his ability to engage in complex reasoning and good judgment. He is therefore more sensitive to the effects of psychosis and substance use than those without such cognitive limitations.
Mr Kilduff, of counsel, on your behalf, submitted that all Verdins principles were applicable as relevant sentencing considerations in your case.
The Crown Prosecutor’s position on that issue was, essentially, that all principles applied but, in respect of the first, third and fourth the extent of applicability was limited. He based this submission on psychiatric evidence suggesting a significant cause of your offending was your voluntary cessation of your olanzapine medication, coupled with your consumption of alcohol, cannabis and methamphetamine on the night of the offence.
On analysis, it became obvious that the application of these principles was contentious and had not been adequately addressed during the plea on 27 February 2017. As a result, on 11 April 2017, I heard further submissions to deal with the issue of whether the realistic cause of your offending was your serious mental state or whether, for the purpose of the application of these principles, it was caused by your consumption of drugs, alcohol and your non-compliance with your anti-psychotic medication which resulted in your psychotic state. I have reached the conclusion it was the latter.
In DPP(Cth) v Boyles,[3] Maxwell P and Osborn JA stated that:
Where Verdins 1 is relied on in mitigation the offender must establish that his mental functioning was impaired involuntarily. That is, his ability to reason or make decisions was adversely affected by a mental condition beyond his control, such that he should be regarded as less morally culpable for the offending than someone who has not been affected.
[3][2016] VSCA 267
In that case the accused, who suffered from bipolar disorder, had ceased taking his medication knowing doing so may adversely affect him and may well lead to criminal activity. He said as much when called to give evidence at his plea hearing. Consequently there was no reduction in moral culpability.
In Jesse Wright v The Queen[4] the sentencing judge concluded, as did the Court of Appeal, that the accused was not entitled to a sentencing discount under the first limb of Verdins because the evidence failed to establish any causative link between the offending and his schizophrenia. Rather, the accused’s voluntarily cessation of medication and consumption of methamphetamine was ‘very much the root cause’ of his offending. In that case, Maxwell P, Redlich and Osborn JJA concluded that:
But for the switch to methamphetamine and the abandonment of medication on which [the accused] knew his mental health depended, he would almost certainly have not committed theses offences.
[4][2015] VSCA 333.
In describing your drug use to Dr Reid, you told him you had begun using amphetamines when you were 16 and methylamphetamine for about one year prior to this offence. You were, as the prosecutor argued, undermining your treatment by doing so.
Your recollection of these events as given to Dr Reid included recalling that you had ceased to take olanzapine about a week prior to the offence. You continued the Suboxone, which is an opiate substitute. During that same week you were drinking heavily and using cannabis. You then recalled starting to get sick, as you put it, which involved getting scared and paranoid and thinking people were out to kill you. You also told Dr Reid that a few days prior to the offence you used methylamphetamine.[5] Later in his report[6] Dr Reid offered the opinion that at the time of the offence you were experiencing a relapse of your psychotic disorder. Your ability to moderate your behaviour and engage in appropriate judgments about your conduct were impaired and that impairment was caused in part by your consumption of alcohol and methyamphetamine. The relative contributions of those substances is not able to be quantified but the relapse of your psychosis ‘is likely to have been promoted by non-compliance with antipsychotic medication in the context of substance abuse’.
[5]Dr Reid report para [21]
[6]Dr Reid report para [34]
In his evidence, Dr Reid said:[7]
It’s very highly likely that that combination of circumstances promoted the psychotic episode. It's of note, in addition, that it seems likely that Mr Costa was taking substances for an extended period prior to the index offence but from his account it appears that he ceased taking his antipsychotic medication Olanzapine shortly before the index offence and that perhaps highlights the importance of that failure in leading to the index offence.
[7]Transcript at page 14
Later, Dr Reid agreed that is was ‘far less likely’ that your relapse would have occurred if you had continued your medication. Whether you understood the consequences of not taking your medication and consuming cannabis and methylamphetamine was not clear to Dr Reid.
The evidence thus is that for a long time you had suffered from schizophrenia. You also have an intellectual impairment exacerbated by a thyroid condition in childhood. You also have a substance use disorder. That relates to alcohol, cannabis, methylamphetamine and opiates. But for your ceasing to take your antipsychotic medication and your consumption of cannabis, alcohol and methylamphetamine, in all likelihood this offence would not have occurred. In my view you realised that it was likely you would relapse in those circumstances. You made a conscious choice to stop taking your medication, to consume alcohol and drugs following which you committed this offence. Though associated with your mental state, that is the cause of your offending. Dr Reid makes it clear that the main cause of any relapse in the future will be your non-compliance with treatment.
So, the question had been whether your unstable mental condition should have the effect of reducing your moral culpability for this offence. Your psychiatric condition is amenable to being managed with treatment and medication and the avoidance of drugs and alcohol. In my opinion, given your history and the circumstances of this offence, I would not conclude that your moral culpability was reduced.
In addition, the factors of general deterrence and specific deterrence achieve significance because you made a decision, as you have in the past, in relation to your medication and substances which in all likelihood led to this offence. It needs to be understood by the community and by you that when that occurs the punishment for the consequent offending will be significant.
Personal history
You were born in Victoria and your parents separated when you were two. Your mother gave evidence in relation to your background. At the age of two it was discovered that you did not have a developed thyroid gland and you receiving thyroxine since that time. You have four step-brothers, three of whom had the same paternity as you. You were brought up by your mother and your step-father. Your recollection was that you performed poorly at school but nonetheless attended mainstream schools and did not have a special aide. At Year 7, you entered a technical school but left at Year 9. You recall that in your early secondary schooling you were expelled from St Michael’s Grammar after using cannabis. Likewise, at the age of 22, you were expelled from your mother’s house after she found syringes relating to your drug use.
You have had a variety of employment including working in a hotel kitchen, landscape gardening and working as a builder’s labourer. You had commenced an apprenticeship as a landscaper but suffered a back injury in the course of that employment. You also have commenced a lawn mowing business and commenced a pre-apprenticeship as a carpenter.
Rehabilitation prospects and protection of the community
According to Dr Reid, you expressed the hope that you will work as a carpenter in the future. You also informed him that you had plans to again attend Alcoholics Anonymous and receive treatment from a mental health service in the community.
You have also indicated a wish to continue with your medication and avoid substance abuse. Should you default on either, a psychotic relapse and further offending is likely. The result of that is that I must pay careful attention to the need to protect the community in fixing the sentence I should impose on you. Furthermore, the sentence I impose should act to deter you specifically from engaging in behaviour that, time and time again, has precipitated your offending.
Dr Reid described a significant settling of your persecutory ideas and behaviour disturbances since your admission to Thomas Embling during which you have received considerable treatment including being placed on three types of antipsychotic medication and receiving a course of electro convulsive therapy.
Dr Reid also described how you have, since the settling of your psychotic symptoms, gained insight into the nature of your illness and the factors that could lead to further relapse. While hesitant, when pressed by Mr Kilduff to describe your recovery as ‘remarkable’, Dr Reid acknowledged your progress as being of the kind that treatments of psychotic illnesses aims to achieve.
You will eventually be released back into the community the protection of which is one of the purposes of this sentence under s 5(1)(e) of the Sentencing Act1991 (Vic). Obviously your reintroduction into the community will entail considerable risk. However, Dr Reid believes those risks can be ameliorated provided you continue to make progress between now and then and are given stable support and monitored intensively upon your return to the community.
In my opinion, at your age and with your history, the prospects of your rehabilitation are somewhat limited, dependent as they are on the treatment you need and your motivation or willingness to comply with it and to avoid alcohol and drugs. Your history does not suggest that is very likely.
Conclusion
Your offending is a serious example of this offence. Your attack on the victim was prolonged as a result of which she suffered serious injuries occasioned by a knife applied to particularly vulnerable areas of her body, including her neck.
I accept that you are somewhat remorseful for what you have done as illustrated by your conversation with Dr Reid on 1 September 2016 at a time when you had some memory of the event. I also accept that your course of electro convulsive therapy may explain why you no longer recall the events of that evening. Also, in that context, you pleaded guilty to this offence having originally been charged with attempted murder. Your intention to contest that charge was appropriate as was the decision of the Director not to proceed with it. There is a significant utilitarian value to your plea to this charge as well as being an indicator of some remorse on your part.
As part of your overall personal situation, I take into account the fact that you have had a troubled life dominated by your mental illness and the difficulties that you had as a result of it including difficulties in compliance with your medication. I have already indicated that I accept the adverse effect of that mental illness on your time in custody. That is a significant consideration.
Taking all of the matters into account, the sentence I impose on you for the offence of intentionally causing serious injury is seven years’ imprisonment. I fix a period of four years to be served before you are eligible to make an application for release on parole.
I declare that your pre-sentence detention is a period 457 days not including today and I direct that that be entered in the records of the Court and reckoned as time already served.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that if you had not pleaded guilty to this offence the sentence I would have imposed on you would have been a period of nine years imprisonment with a minimum period of six years’ imprisonment before you would become eligible to apply for release on parole.
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