R v D'Zilva
[2012] VSC 383
•31 August 2012
| Z | ||
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0169 of 2011
| THE QUEEN |
| v |
| JAMES D'ZILVA |
---
JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4-8, 12-13 & 20 June 2012 | |
DATE OF SENTENCE: | 31 August 2012 | |
CASE MAY BE CITED AS: | R v D’Zilva | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 383 | |
---
CRIMINAL LAW – Intentionally cause injury – Theft – Circumstances of Offending – Effects of schizophrenia capable of reducing moral culpability – Lack of suitability for a restricted involuntary treatment order.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC with Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Mr S. Bayles with Mr S. Norton | Robert Stary Lawyers |
HIS HONOUR:
James Brendan D'Zilva, on 14 June 2012 you were convicted of intentionally causing injury to Leading Senior Constable Christopher John Bullen and theft of an unknown item belonging to Samantha Jane Ivan. That item was probably a packet of potato chips.
You were convicted of the offence of intentionally causing injury as an alternative to that of intentionally causing serious injury. I am satisfied that the injuries suffered by Senior Constable Bullen would ordinarily be described as serious. I do not quibble with the jury’s conclusion that you did not intend to cause more than injury to Senior Constable Bullen.
The events that lead to your conviction are somewhat protracted.
In November 2010 you had been living with your aunt in the Belgrave area and she reported you as a missing person on 28 November 2010. Attempts to locate and “apprehend” you were unsuccessful.
In the early afternoon of 3 December 2010 you went to the Shell Coles Express Service Station in Healesville. You purchased some items at the store. At about 7.00pm that day, you were seen by the police in Healesville. At that time there was a report that you had startled two school girls near the Healesville High School the previous day. That report had lead to a suggestion that you had molested the girls in some way. That was not true and I do not believe that it was the view of the local police, although they did want to speak to you about the matter. Your dress and appearance was somewhat different from others and that may have “fuelled” the local view of you. You did not want to be involved with the police and you ran off.
At that stage the major consequences of running off for you was that you lost a number of your belongings in the process. In particular you lost your debit card, which meant you did not have access to your bank account and therefore money. You were living, to use the slang expression, “rough”, and yours was a day to day existence.
At shortly before 11.00pm, you returned to the Shell Coles Express store and there you can be observed on the CCTV footage moving around the store and bending down as if to pick up an item. You then left the store. There was evidence that you removed a packet of chips without paying for it, but whether it was a packet of chips or some other item does not matter. Those were the circumstances of the count of theft and I proceed on the basis that you stole in order to have something to eat.
You were seen in the vicinity of Healesville over the next few days and quite a significant attempt was made to find you on 7 December 2010.
At about 10.14pm on that day, you again attended the Coles Express store. You remained in the store for some time. Senior Constable Bullen came to the store after hearing a report that you were in the area, approached you, and you attempted to escape. He grabbed you with the intention of arresting you. There was a struggle between the two of you. In that struggle, which was relatively brief, you inflicted a number of injuries to Senior Constable Bullen with a sharp implement which has never been found. It cannot have been very large because it cannot be seen on the CCTV footage, but it was certainly sharp enough to inflict the injuries suffered by Senior Constable Bullen. You then ran away.
The injuries sustained by Senior Constable Bullen were a laceration to the right forehead, a laceration to the left forearm, three left-sided abdominal stab wounds and two chest stab wounds with a small pneumothorax in the chest cavity.
There was an issue in the trial as to the actual cause of the pneumothorax and the severity of it but nothing much turns on that now.
I am satisfied that your motive was to get away from the police and, to a large degree, the reason for you wishing to escape in the way that you did was related to your mental illness.
You remained at large until you were approached by the police in Richmond on 5 January 2011 and subsequently arrested. You have been in custody since. When you were at large, you supported yourself as best you could. That led to you being charged with a number of offences which have not been persisted with by the Director of Public Prosecutions and, apart from their inclusion in this narrative, they form no part of the material for which I am about to sentence you.
There are two principle victims of your crimes, Senior Constable Bullen and Nicole Leigh Whitbourn. Ms Whitbourn was the console operator at the Shell Coles Express Store on the night of 7 December 2010. She observed the attack and saw some of the results of the injuries to Senior Constable Bullen.
Both Senior Constable Bullen and Ms Whitbourn have provided victim impact statements. Senior Constable Bullen, apart from suffering from his physical injuries which were not insignificant - he has fortunately made a good recovery - has found his return to work more difficult because of both the direct and indirect impact on him and his family, including his young children. This incident has affected his confidence to do his duty and he has decided not to return to work on a full time basis. So for him these events have become life changing.
It should go without saying that police officers should be able to go about their duties without being subject to attacks of this kind. It is of little consequence to Senior Constable Bullen that you suffer from a mental illness which reduces your moral culpability, although he does have an appreciation of it. The management of the mentally ill in the community is a particular challenge for all of us, but the task of ordinary police officers going about their everyday duties has become increasingly difficult because of it.
Ms Whitbourn suffers from Post Traumatic Stress Disorder and the immediate effects on her have been very substantial but she is young and making every attempt to overcome the experience. We should not forget how people going about their ordinary work, as she was on this night, are very seriously affected by events of this kind.
You are now 34 years of age. You have a number of prior court appearances between 2000 and 2009 for theft, possess and use cannabis and your most serious conviction is for arson. You have served a number of prior sentences, the longest of which was 130 days. The others were each six days. I suspect you served all of the sentences on remand and, in relation to the longer sentence of 130 days, you served that at the Thomas Embling Hospital. Much of your offending has been related either directly or indirectly to your mental illness.
The maximum penalty for the offence of intentionally cause injury is ten years imprisonment. The maximum penalty for theft is ten years. You have now been in custody for 604 days.
You lived with your father up and until the age of 16 or 17 and you have continued to have the support of your aunt, who reported you missing in 2010, over the years. You have lived in Queensland over various periods between 2001 and 2008, but you had been back in Melbourne for about two years prior to December 2010.
You are schizophrenic. At the time of this offending, you were probably psychotic and you were not on any medication. The law requires me to take that into account in a number of ways, but for present purposes it is most important to have regard to the fact that the law recognises that people suffering from mental illness quite often, and in your case it is so, are less morally culpable for your conduct because of your mental illness.
You have no insight into your offending and you continue to deny that you were the person who committed the offences. Anybody who has seen the material in this case would not entertain the slightest doubt that you are the offender, let alone have a reasonable doubt about the matter.
The prosecution have accepted that you should not be incarcerated for any further period. It was however submitted that a further period of supervision would be appropriate in your case. Because of those submissions and the submissions made on your behalf, I ordered that you be assessed for your suitability for a community corrections order or for a restricted involuntary treatment order.
I received a report in relation to the community corrections order which was favourable. I received a report in relation to the restricted involuntary treatment order which was not. The community corrections order report was dated 11 July 2012, but the report received from Associate Professor Paul Katz in relation to the restricted involuntary treatment order was not received until 21 August 2012. That has been the major reason for the delay in sentencing you.
Because of the view formed by Associate Professor Katz as to your unsuitability for being released on a restricted involuntary treatment order, it seems to me that close to the same but not identical risks exist in relation to the imposition of a community corrections order. It is not my intention to involve you in a disposition which would doom you to failure and I will not do so.
I considered the suitability of imposing a sentence and a period of parole, but in view of the most recent material that I have read into the court record this morning as to the part that the mental heath system will now play in your future supervision, I have come to the conclusion that that is the most appropriate way to dispose of the case against you.
In relation to the crime of intentionally causing injury to Senior Constable Bullen, you are sentenced to be imprisoned for 604 days. In relation to the count of theft, you are sentenced to be imprisoned for seven days, that sentence to be served concurrently with the sentence on Charge 2. That is a total effective sentence of 604 days.
I declare that you have served 604 days pre-sentence detention in relation to these matters and I direct that that declaration and its details be entered into the records of the Court.
0
0
0