R v Hunn
[2012] VCC 2189
•2 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01562
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE JOHN HUNN |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2012 | |
DATE OF SENTENCE: | 2 March 2012 | |
CASE MAY BE CITED AS: | R v. Hunn | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2189 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Aggravated burglary – Summary offence assault with weapon – Diagnosed psychiatric illness – History of poly-substance abuse – Anti-social personality
Legislation:Crimes Act 1958; Drugs Poisons and Controlled Substances Act 1981; Mental Health Act 1986
Cases:R v Sebborn [2008] VSCA 200; Baensch v R [2010] VSCA 191; Verdins, Vo, Buckley v R 2007 16 VR 269
Sentence:Total Effective Sentence of 19 months’ imprisonment with a non-parole period of 10 and half months’ imprisonment – 277 days pre-sentence detention declared as being served – s.6AAA Sentencing Act 1991 declaration
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr N. Batten | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Smallwood | VLA |
HER HONOUR:
1 Luke John Hunn, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment, and through your counsel, Mr Smallwood, you have pleaded guilty to four summary charges of assault with a weapon, which has a maximum penalty of 2 years imprisonment.
2 The matters were opened by the Crown as follows. You had been subject to a community treatment order which as at Monday 30 May 2011 had been cancelled. This resulted in you being an involuntary patient at the Acacia psychiatric ward of the Dandenong Hospital on this date.
3 I was told that the direct victims in this incident were all employed at the hospital and working in that unit. They are Dr Elana Slova Ionchev, a psychiatrist of some 20 years experience, Cheryl Phillips, an associate nurse unit manager, Dr Veronica Pokieter, a psychiatric hospital medical officer who had worked in mental health since 2006, and Charles Katford, a psychiatric nurse for the past 3 years.
4 At about 11:15 a.m. on 30 May 2011 you approached staff asking for day leave approval. This request was refused. You then left the hospital escaping over a back wall. Shortly before midday on that same day you returned to the hospital armed with a sharp knife. A photograph of the knife was tendered on the plea. You returned to the hospital through the main door. You went straight to the nurses station where five members of staff were present, including Ms Phillips and Dr Pokieter.
5 You entered the nurses station area and at that time Ms Phillips saw the knife in your hand. She asked you, "What's going on?" You replied, "Where's that fucking doctor, that fucking bitch?", apparently referring to Dr Slova Ionchev. You then held the knife above your shoulder and came to Ms Phillips' face. You pointed the knife at her face and asked her where the doctor was again and said that you were going to cut the doctor's throat. This gives rise to charge five, assault with a weapon.
6 Ms Phillips then hit the duress button. You then approached Dr Pokieter. You appeared to be very angry and stood over her as she was sitting down at the time. You pointed the knife in her direction and were about one to two metres away from her. You then smiled at Dr Pokieter and said, "Oh, you are the nice doctor" and then turned to walk away. This gives rise to charge six, assault with a weapon.
7 Mr Katford could hear loud banging coming from the nurses station. He went to the nurses station and saw you and he saw the knife. You turned towards Mr Katford and came at him with the knife. Mr Katford ran from the vicinity in fear. You pursued him and were not far behind. Mr Katford ran behind a sofa in the main ward area to create a physical barrier between you and himself. Initially you were about one metre away from Mr Katford and were pointing the knife out towards his chest area making stabbing motions with it. This gives rise to charge 7.
8 At this point unit nurse manager Kerry La Roche came out of her office, having heard the yelling and the duress alarm. She saw you and heard you screaming, "Where is that doctor?" You then approached La Roche as she came down the corridor. She asked you why you were yelling. You repeatedly said that you wanted to go on leave but you wanted to go now and were waving your arms around shouting and angry and in a distressed state. Ms La Roche saw the knife in your hand. She was standing about a metre to one and a half metres away from you. She told you to stop what you were doing and tried to calm you down. She asked you to put the knife down and you said that you were not going to hurt her but that you wanted your day leave. You said you would kill someone if you did not get what you wanted.
9 You then went to the treatment room and kicked the door two to three times. Ms La Roche grabbed a cushion to use as a physical barrier between herself and you. She yelled at you to stop and tried to re‑engage with you. She yelled at you to put the knife down. You were still waving the knife around and Ms La Roche said, "Please don't hurt me". You replied, "I'm not going to hurt you, you're OK. Take me to gaol. Someone is going to die. Where is that doctor? I'm going to stab her. Where is she?" You also said, "You are stopping me from seeing my son, you can't do this". Ms La Roche again tried to persuade you to drop the knife but your behaviour escalated once more and you threw over a table tennis table.
10 You then headed to the treatment room. Inside the treatment room were four people, namely, Dr Slova Ionchev, a nurse, a psychiatric Registrar and a patient. There is a rule that patients are not permitted to enter any secure locations or offices on the ward without permission of the staff. You kicked the treatment room door very hard shouting, "Where is she?" You kicked the door about four to five times and broke the door open. You held the knife above your head with the blade pointing at Dr Slova Ionchev's neck. You walked towards her shouting, "Why are you not giving me leave?"; and the going into that area kicking the door down amounts to aggravated burglary and then your action towards that particular doctor amounts to ‑ I am sorry, I will leave that for a moment. It's the aggravated burglary that I am dealing with there.
11 Damage to the door and surrounds were caused on entry which was evident from the photographs tendered. Dr Slova Ionchev moved away as far as she could back against a cupboard. The nurse tried to protect her by placing herself almost in between you and Dr Slova Ionchev.
12 I pause here to remark that the actions of this nurse were most heroic and deserving of more recognition than I can give by making such an observation.
13 Dr Slova Ionchev was terrified and said that you were holding the knife about 40 centimetres from her head. You were extremely angry and repeatedly said that you would cut her throat. This gives rise to Charge 4, assault with a weapon.
14 Dr Slova Ionchev said, "OK, I'll give you leave". You then stormed out of the room and went to a courtyard area and staff locked you out. By now the entire unit was in full lock down as per a Code Black. You left the hospital, presumably by again jumping a wall.
15 At about 1 p.m. that same day, to your credit, you handed yourself in at the Dandenong Police Station and were placed under arrest. You said to the police, "Yeah, I knew you were looking for me, that's why I handed myself in". A forensic medical officer examined you and declared you fit for interview in the presence of an independent third person. You were interviewed in the presence of that independent third person and said, "I can't see how it can be an aggravated burglary when they let me in", and you also said, "Because I knew you guys would be looking for me so I just thought I would come in and do the right thing and get it all over and done with". You also told police that you did not want to go back to the psyche ward and wanted to go to gaol. Otherwise you made a largely "no comment" record of interview. However, the record of interview was short because it was suspended for you to contact a lawyer and not recommenced because, having had legal advice, you decided not to take any further part in the record of interview, which is your right.
16 During one period of suspension of the record of interview you went back to the hospital with police and you showed them where you had discarded the knife which was seized.
17 Five victim impact statements were tendered on the plea, four of which were prepared by the nominated victims in this matter. There is a further victim impact statement from a Mr Yap who was present in the room at the time of the aggravated burglary. And I will come to each of the victim impact statements in a moment.
18 Mr Hunn, I am sure that you appreciate that what you did on that day was very serious and would have been terrifying to the victims. It is very important that you appreciate how serious your behaviour was. The people whom you terrorized were all trying to help you and to help other people with mental health difficulties. They should be able to work in an environment which is safe and in which they feel safe. You have said through your counsel that you are now very sorry for what you have done and for the suffering you have caused the victims. This is not reflected in the Forensicare report but I understand that your mental illness can lead to fluctuations on how you feel about things from time to time.
19 To your credit, although you threatened to, you did not physically harm anyone and you helped the police by turning yourself in very soon after the incident which saved the police a good deal of time and trouble. You also assisted police by helping to find the knife which they had been unable to find. I take these matters into account in your favour.
20 I must say, in the circumstances, the aggravated burglary to which you have pleaded guilty is somewhat technical in that you were an inpatient at the hospital at the time and entered a room where it was against the rules to do so although you did so in a most dramatic fashion. One would have thought that more appropriate charges would have fitted the bill. On the other hand, assault with a weapon, being a summary offence, tends to underrate the seriousness of your offending, in my view.
21 In any event, I will sentence you on the basis of the matters to which you have pleaded guilty but in relation to the aggravated burglary I will factor in that the offence is made out in a rather technical sense, in my view.
22 Mr Hunn, it is very important that you appreciate the suffering that you have caused to the people who were affected by your actions on this day, as I say, who were only doing their jobs and trying to help you and others.
23 I will now turn to the victim impact statements and it's important that you hear what these people have to say.
24 Dr Slova Ionchev says that this was the first time she had been personally threatened in all her years of practice. She was frightened for her life. Further, as a result of this experience, the trainee whom she had been supervising and mentoring left the profession. She also has faced challenges working on the ward after the incident because of the significant impact that your conduct had on staff morale and patients' wellbeing.
25 Ms Phillips says that she has suffered ongoing distress from what you have done and has found it very difficult to sleep and also to continue to come to work. She has been so affected by your actions that she has moved from her position as a charge nurse to the community which has resulted in a significant loss of income, such has been her anxiety and fear that she may not be so lucky to escape with her life if attacked by a patient again.
26 Dr Pokieter says that she now has an increased awareness of probable assault, that is, hyper-vigilant due to your conduct.
27 Mr Katford indicates that he is anxious about the thought of going back to work and at times is anxious whilst he is at work. He has lost his passion and enthusiasm for working in the acute psychiatric ward. He has become hesitant when managing a hostile situation and has noticed that he's more easily stressed at work.
28 Mr Yap says that he was initially very troubled by the event and had to take about two weeks off work. He has had to access the services of a psychiatrist and psychologist in order to help him deal with the distress of the event. He has had to re‑evaluate and reconsider his role as a doctor in psychiatry and after much deliberation he has decided to discontinue working and training in this field. He resigned from his post and no longer works at the Dandenong Hospital. It would appear that Mr Yap is the trainee that Dr Slova Ionchev was speaking of.
29 Mr Hunn, these are the very real and profound consequences that your conduct has had upon these people. In one case someone who had decided to help people in your situation has since decided not to pursue this because of the trauma that you have caused him.
30 At the time of this offending you were struggling with mental health issues which have plagued you since you were 18 years old. Provisional diagnoses referred to in the Thomas Embling discharge summary referring to your discharge on 28 September 2011 lists the following final diagnoses. Firstly, chronic paranoid schizophrenia; secondly, poly‑substance dependence (they are referring to cannabis, heroin, amphetamines and alcohol); thirdly, anti‑social personality disorder. Features of a third condition include poorly controlled anger, volatile relationships, emotional lability, fear of being abandoned or rejected, social isolation and limited social skills.
31 Since your diagnosis with schizophrenia at the age of 18 years you have frequently been admitted to Area Mental Health Services and largely been maintained on community treatment orders. Unfortunately you have a history of poor medication compliance and substance abuse. The condition of schizophrenia from which you suffer is characterised by disordered thoughts and behaviour, auditory hallucinations and illusions, poor sleep, increasingly demanding behaviour, agitation, irritability and fatuousness.
32 Previous psychological testing has shown that your intellectual functioning is within the borderline range.
33 In terms of poly‑substance abuse, the discharge summary records that you began using drugs when a teenager. Your substance history includes alcohol, cannabis, amphetamine, heroin and inhaling aerosols. You appear to have limited insight into the effects of the substances on your mental state and you were reluctant to discuss your substance abuse whilst at Thomas Embling Hospital before your discharge on 28 September 2011.
34 When you were discharged from Thomas Embling on this occasion you were co‑operative and did not exhibit any formal thought disorder and denied any delusions or hallucinations. You said that you would take your medications but appeared to have limited insight into your illness.
35 Before discharge on 28 September 2011 there were three incidents which were noted at Thomas Embling. These involved arguments between you and either a co‑patient or staff. On the last of the noted occasions, despite provocation from a co‑patient who threw coffee in your face, you restrained yourself from retaliating, which is to your credit. This shows that you can behave in a responsible adult fashion.
36 Unfortunately you have a significant criminal history. In more recent times you have committed offences of violence. On 21 May 2009 you were convicted of two unlawful assaults, one of which concerned you approaching and punching a psychiatric nurse on the chin. This took place on 24 August 2007. The other unlawful assault concerned you having an argument with a nurse in respect of taking medication. Again you punched the victim. This took place on 30 January 2007. On 8 February 2007, amongst other offences, you were dealt with for recklessly causing injury at the Dandenong Magistrates' Court. This concerned an incident in December 2004 when you were alleged to have struck your father in the course of a physical confrontation with him. You obtained the benefit of a wholly suspended sentence for this offence, as well as other offences, but you breached the order by reoffending. However, no order was made in respect of the suspended sentence, that is, the breach, as exceptional circumstances were established.
37 It may well be the case that the exceptional circumstances related to your psychiatric condition but this is not clear.
38 Most of your offending relates to the use of drugs or dishonesty matters. You have committed offences since 6 August 1998; that is the date of your first appearance at the Dandenong Magistrates' Court.
39 You are 30 years old and have been on remand for matters before me either at Melbourne Assessment Prison or Thomas Embling.
40 By way of background, Mr Smallwood told me that you grew up in the Yarraman area which is a suburb near Noble Park and Dandenong. You are the youngest of three children. Unfortunately your upbringing included hardship and abuse. When you were 9 years old you were sexually assaulted by a stranger at the Dandenong Show Grounds. When 18 years old, whilst in detention at a Youth Justice Centre, you were also sexually abused. I was told that you have not engaged in much counselling in respect of the impact of these offences upon you.
41 Mr Hunn, these are most traumatic events for you to have been through and it would be very good for you to engage in some counselling about them and feel that you could talk about them to someone who is professionally trained in the area.
42 When you were in the early stage of teenage years your parents separated. You had encountered a difficult relationship with your father who is an alcoholic and physically abusive. You left school after Year 7, obtaining work in the boning room at an abattoir. You continued to live with your mother until she moved away when you were 16 years old. You and your siblings were left to fend for yourselves and you were evicted from the property because you were unable to pay the rent. I do note that in the discharge report there is a reference to you being evicted because of damage to the property but in any event you were in a most difficult and sad position to be homeless at the age of 17 years without the support of your mother.
43 You lived on the streets and it was there that you were introduced to heroin. You were diagnosed with schizophrenia at the age of 18 years, as I previously said. You took it upon yourself to attend the Dandenong Hospital to get some help after a friend encouraged you to do so. Since then you have largely been treated in the community, on community treatment orders, although you have been admitted to Mental Health Services from time to time. When in the community you are required to attend a chemist every two weeks and engage with a doctor or psychiatrist every couple of months. I was told that this was the extent of the treatment that you received.
44 In relation to the matters before me, you were remanded on 30 May 2011 and placed in the acute treatment unit at the Melbourne Assessment Prison. On 9 June 2011, because of deterioration of your condition, you attended Thomas Embling. You were then returned to the Melbourne Assessment Prison on 28 September 2011 but again through deterioration of your condition you went back to Thomas Embling on 26 October 2011, and as at the time of the plea this is where you had been spending time on remand. Your condition deteriorated each time you returned to the Melbourne Assessment Prison because you stopped taking appropriate medication. I will return to this matter in a moment.
45 Mr Smallwood said that you had a long engagement with psychiatric services and State Trustees, who have been conducting your financial affairs since you were 18 years old. He said that since this time you had felt disempowered and had been told to live in accommodation which was most unsuitable for you. You had been required to live in places described by you as old people's homes.
46 Before admission to Dandenong Hospital on the occasion of your offending you were engaging with a mobile support team. A case manager from the team referred you for admission to Dandenong Hospital under a revoked community treatment order. This was due to the fact that you had deteriorated in terms of your mental health and had shown poor compliance with treatment. As Mr Smallwood submitted, and as is often the case, this is an unfortunate incident of mental illness itself.
47 I was told that six months before your admission to Dandenong Hospital you had been complying well with medication and had presented in a stable state. Three months later, that is, three months before admission to Dandenong Hospital, your position had changed and you had become agitated, increasingly demanding and aggressive towards staff. By the time of your admission to Dandenong Hospital you were described as being fatuous, irritable and agitated. Mr Smallwood said that you had become increasingly frustrated with the medication Clozapine and the effects that it was having upon you. Despite trying to speak to doctors about this, you said you felt that you were not being listened to. Clozapine is an antipsychotic medication used to treat schizophrenia. You had spoken with doctors for some time to have this medication changed as you felt it was making you feel depressed and sleepy. You instructed Mr Smallwood that you felt like you were going to die as you were falling asleep all the time to the point where you felt that this endangered your safety. You were falling asleep on roads and footpaths, you told him. You said in one instance, when on a road, you had felt so sleep affected that your friends had to carry you home to avoid being run over. Mr Smallwood said that you had reflected upon your offending and believed that what you really wanted to do on that day was to have the doctors understand how the medication was affecting you. Your counsel said that you behaved in the way that you did because you wanted to get away from the facility because of the way you were feeling towards the doctors who to your mind were not understanding how the medication was affecting you.
48 As was mentioned in the Forensicare report, your actions lacked logic in that you had already left the facility but you determined to return yourself and confronted a number of staff members, apparently angered by the fact that you had not been given a day pass in the first place.
49 At one stage in your interview with Dr McInerney you said that your offences were motivated by both a concern in respect of Clozapine and by the refusal to grant you day leave. I do understand that you may well have had these dual motivations but I am quite concerned that your reactions had a disturbing edge of retribution or protest about them. Through Mr Smallwood you made it very clear that you were very sorry to the victims and you did not really want to scare anyone. Your medication has now changed or had now changed as at the date of the plea and you are no longer taking Clozapine.
50 An email was tendered on your behalf from a consultant psychiatrist dated 25 November 2011. It appears that you had been on Clozapine for almost two to three years when under the care of Dandenong Psychiatric Services. After being charged with the offences now before me, you were transferred to Thomas Embling Hospital and continued on Clozapine and Fluphenazine Depot. However, as soon as you were discharged back to MAP on 28 September 2011 you ceased taking these medications. You were then commenced on Risperidone, an antipsychotic, at MAP and with your agreement. However, you started to deteriorate in terms of your mental health and were transferred to the Argyle Unit of Thomas Embling for further management.
51 Since your re‑admission to Thomas Embling on 26 October 2011 you remained on Risperidone anti-psychotic for further observation initially. However, due to poor response to this a change over of your medications to Olanzapine and Sodium Valproate commenced on 22 November 2011.
52 As at 25 November 2011 you were taking 10 milligrams of Olanzapine twice daily, 200 milligrams Sodium Valproate twice daily and 3 milligrams Risperidone each night. It was anticipated at that time that the dosage of these medications would be varied further over the ensuing weeks. As at that time you were not mentally stable and your response to the change in medication was to be the subject of observation and noting.
53 The consultant psychiatrist Dr Ranja further noted in the event that you were to be released at that time on the basis of time served being an adequate sentence that you would have to return to Thomas Embling Hospital pursuant to s.9 of the Mental Health Act and that arrangements would be made for you to be transferred to an Area Mental Health Service for inpatient care. Since changing medication you have reported feeling much better and more in control. Mr Smallwood acknowledged that supervision and further treatment was warranted in this regard in order to achieve stability in terms of your mental health.
54 As at the time of the original plea hearing you were in telephone contact with your mother and you were speaking with her once a week. You had not spoken with your father for about 5 years which is about the time that you assaulted him, giving rise to the prior conviction that I referred to.
55 You have never married but you have been in a relationship with a woman by the name of Melissa Curry. You have a 9 year old son Lincoln from that relationship. You have not enjoyed much contact with Lincoln until six or seven months before you were remanded for these matters. You had re‑established contact with him. As I understand it you were wanting to maintain contact with him.
56 You have been on a disability support pension since you were 18 years old. You attained a two bedroom unit through the Department of Housing and were living in Dandenong before the community treatment order was revoked. I was told that your housing may be at risk if you remain in custody for longer than six months.
57 In your favour I take into account your early plea of guilty which was entered at the earliest opportunity. You are entitled to a substantial discount in the sentence that you would otherwise receive because you have taken this course. By doing so you have saved the witnesses, especially the victims, the time and trauma of giving evidence and you have also saved the community the time and expense of contested proceedings involved. Moreover, in your case you facilitated justice in a most significant fashion by turning yourself into police at an early point in time which saved the police the time, trouble and expense of having to find you and conduct a detailed investigation. You also helped them by finding the knife. In this regard I note that the police had tried to find the knife without success and it was you who pointed to its location when you re‑attended the hospital with them.
58 Mr Hunn, I don't have that long to go. I just want to tell you I am not going to be speaking forever but I will probably be speaking for another 10 minutes. All right?
59 PRISONER: OK, Your Honour.
60 HER HONOUR: In terms of your prior offences for violence, I am mindful of the fact that the commission date in relation to one matter is in 2004 while the commission dates for the other two unlawful assaults are in 2007. Therefore the most recent episode of violent offending before the one for which I now sentence you occurred about four years ago. Your counsel said that as you had limited priors for violent offending it could not be said that there was a pattern which was manifesting itself in this regard.
61 The learned prosecutor submitted that such a pattern was emerging in light of the nature of your past offending and the offences for which I now sentence you.
62 I must say that in light of the nature of your prior offences and the nature of your conduct on this occasion I am concerned that you are developing a pattern of violent behaviour and that your conduct is escalating. In light of your criminal history in general and in particular your offences for violence, together with the nature of the offences on this occasion for which I now sentence you, and also in light of the fact that there is significant difficulty with maintaining the stability of your mental health, I have to be concerned about protecting the community in sentencing you.
63 Mr Smallwood acknowledged this but submitted that community protection would be best achieved by requiring you to comply with the treatment regime rather than imposing a further gaol term upon you. He pointed to the limited periods of time you had spent in custody in the past, the last of which was in 2003. It was submitted that on the basis of the material provided concerning your mental health there was a link between your offending and symptoms that you were displaying at that time.
64 I note that at the time you committed the offences for which I now sentence you your condition was sufficiently severe that your community treatment order had been revoked and you needed to attend the Dandenong Psychiatric Hospital as an inpatient. However, the extent to which the symptoms of your mental illness were operating upon you at the time of your offending was not clear to me at the time of the original plea.
65 Because it was very important that I sentence you on the basis of the degree to which you can be held responsible for your actions, I ordered a Forensicare report to be provided with a view to establishing the extent of your moral culpability when you committed these offences. I have little difficulty in accepting that your mental functioning was impaired at the time you committed the offences but I needed clarification as to the extent to which it was impaired and what symptoms were operating so as to link to your offending.
66 The learned prosecutor submitted that it was not clear that there was such a link and in the absence of clear evidence full weight should attach to specific and general deterrence.
67 However, Mr Smallwood argued that significant reduction in moral culpability was warranted and that the weight which I should attach to general deterrence should be significantly moderated as you were not an appropriate vehicle for it.
68 In terms of specific deterrence, Mr Smallwood submitted that either no or minimal weight should attach because of the difficulties that you have due to mental health issues. Further, Mr Smallwood submitted that the best way to achieve rehabilitation was for you to engage in treatment, that the Mental Health Services were best placed to address such matters. He submitted that your poor mental health was also relevant to the manner in which a sentence ought be served, in that imprisonment for someone with your difficulties would be far harsher than for someone not suffering with these. He submitted that your impaired mental state was relevant to the manner in which a sentence ought be served.
69 Again I have no difficulty with these propositions as such. But I sought some guidance from Forensicare to determine the extent to which I should take these matters into account.
70 Mr Smallwood submitted that the time that you had served in custody, which as at the time of the further plea was 270 days, was enough time to reflect sentencing principles which applied in your case. He further submitted in line with the email tendered on your plea from Dr Ranja that if sentenced to time served you would then remain at Thomas Embling Hospital pursuant to s.9 of the Mental Health Act 1986 and your treating psychiatrist would arrange for you to be transferred to a suburban health service where you would be an inpatient for an appropriate period. He acknowledged that as at the time of the original plea at least, you were not stable enough to be at large in the community even on a community treatment order.
71 Ms Sedgwick for the Crown submitted that the material tendered in respect of your moral culpability was somewhat lacking, as I have said before, and this is why a Forensicare report was ordered, which is now to hand.
72 Upon the original hearing of your plea Ms Sedgwick for the Crown did not submit an actual range in terms of sentence but upon being invited to do so she submitted that in your case a sentence of 24 months imprisonment with 12 months non‑parole period was in the realms of a sentence for this sort of offending. She confirmed that this was a sentence which was provided to her by a Crown prosecutor on the basis that. Verdins did not apply. I expressed my surprise at this given that offending of this nature without Verdins considerations would appear to me to attract a far higher sentence than that proffered by the Crown. However, Ms Sedgwick submitted that the sentence indication was given on the basis that psychiatric material tendered, and of which the Crown had a copy, was accepted by the Crown in a general sense as being relevant to the sentencing task.
73 Following receipt of the Forensicare report dated 22 February 2012 the Crown submitted that they had, to quote written submissions, revised but not altered any range submission. As I understand their position, the sentence which they previously submitted would be appropriate was, although not a range, still deemed to be appropriate notwithstanding that the Crown conceded the application of Verdins. As I understand the Crown's position, matters contained in the Forensicare report give cause for concern in terms of your capacity for rehabilitation and I must say that I share this concern.
74 On the hearing of the original plea Ms Sedgwick submitted that I ought be concerned as to your willingness to discuss substance abuse, which was referred to in the discharge summary tendered on the plea. She submitted that such reluctance, and the prospect of substance abuse aggravating your mental health symptoms, was a matter that I ought be concerned about in terms of your prospects of rehabilitation. She took me to specific matters referred to in the Thomas Embling discharge summary which showed a history of poor medication compliance and substance abuse and the symptoms of your impaired mental functioning. She also took me to paragraph 13 of that report where you had acknowledged recent intention to harm others and had limited insight into your illness. She observed that you have altercations with others, which is referred to in the document which I have previously referred to in the course of my sentencing remarks.
75 She pointed out that you had not stabilised during the past six months whilst in custody and the opinion proffered at paragraph 15 of the discharge report was that you were said to continue to pose a significant risk to others. She submitted that such matters were relevant to the weight I placed upon the need to protect the community and pointed out that you had shown poor compliance with court orders in the past, having breached two community‑based orders and three suspended sentences. She further pointed to the significant impact you had on victims and she said that your conduct on the occasion of this offending was deliberate and even involved vengeful thinking on your part because you had not had your way in your demand for day leave.
76 Mr Smallwood pointed out that at the time of all the incidents involving violence you had been on Clozapine or were under its influence. He pointed out that this was no longer the case.
77 I now have the Forensicare report which assists me in exploring some of the issues to which I have referred. Further, I wanted to explore how it was your mental illness had developed, if possible. Specifically I wanted to ascertain whether the issues which you have had with your mental health arose because of drug abuse from an early age.
78 The report dated 10 January 2012 is authored by Dr McInerney. Unfortunately you did not answer a number of questions that Dr McInerney asked in relation to your background but it is clear that you have an established history of paranoid schizophrenia which has been complicated by borderline low intellect and anti‑social traits, according to Dr McInerney, and she records that you have suffered from these difficulties since the age of 17. Your symptoms have included delusions, being fixed false beliefs, auditory hallucinations, disorganization of thoughts and behaviours, irritability and impaired judgment. You have some significant difficulties in terms of your cognitive skills including a limited capacity to learn from experience.
79 It is also clear that your illness was not caused by, but is complicated by significant poly‑substance abuse, poor insight, very poor engagement with mental health services, repeated non‑compliance with medication and frequent relapses of psychosis.
80 Unfortunately your illness is treatment resistant and this is why you were placed on Clozapine. I know that you don't like this medication, Mr Hunn, and you feel vulnerable when you are on it, but, Mr Hunn, if this is what the experts say is best for you, then it is very important that you take their advice about this. It's very important you trust this fact, if you are being advised to take this by a psychiatrists and psychiatric nurses. The medical records show that your mental state has improved with the use of this drug, according to Dr McInerney, and this is to your benefit and to the community's benefit. If you refuse to take the medication that is deemed to be best for you, you will be at significant risk of committing further offences or harming yourself. If you commit further offences you will be at significant risk of spending more and more time in gaol, even allowing for your illness, and no‑one wants you to harm yourself or anyone else.
81 In respect of the part that your mental illness played in your offending, shortly after you committed the offences you were experiencing symptoms of irritability, some disorganization of your behaviour and poor insight into your illness or the risk that you posed. There is nothing to suggest, according to Dr McInerney, that you were suffering from any delusions, hallucinations or formal thought disorder as at the time you were incarcerated shortly after the offences were committed. Dr McInerney concludes that, to quote her, it is likely that the events that occurred were driven by a complex combination of factors including the relevant stressor being refusal of day leave, your personality structure, your lowered IQ and your chronic psychotic illness. She went on to say that it seemed likely, to quote, “that a combination of schizophrenia and a borderline intellect impaired your ability to exercise appropriate judgment and make calm and rational choices.”
82 Dr McInerney also said that given you had spent a good deal of remand time in a psychiatric hospital, it is possible that you would find ongoing imprisonment more onerous than someone who is not mentally ill.
83 I also note that there is an addenda to Dr McInerney's report which indicates that you were re‑admitted to Thomas Embling in late January 2012 and that is where you remain.
84 I am very grateful for your counsel's submissions and have considered these very closely. I accept his submissions in relation to Verdins which is reflected in my sentencing reasons. In respect of his submission concerning protection of the community, even though your risk factors are reflective of your illness, in the circumstances where you are still to be held criminally responsible for your actions, even to a substantially reduced extent, protection of the community is still a concern. Also in such circumstances a just punishment still needs to be imposed.
85 On the basis of the Forensicare report which has been most helpful, I am prepared to fairly substantially reduce your moral culpability in respect of these offences and to a similar extent I shall reduce the weight that I would otherwise give to specific and general deterrence. I will impose a punishment that is just in all of the circumstances including my finding in respect of your moral culpability.
86 You did know on that day that what you were doing was wrong, which is seen upon your attendance at the police station afterwards and, as I said, even within the realm of some warped logic which your illness has a good deal to do with, your offending had a disturbing flavour of retribution or protest about it.
87 In all of the circumstances I am going to sentence you to a non‑parole period which is a little longer than the period you have presently served and then I will leave it to the Parole Board to decide when you ought be released on parole after that.
88 Would you please stand up, Mr Hunn. I am going to tell you what your sentence is now.
89 On the charge of aggravated burglary you are convicted and sentenced to 14 months imprisonment and this will be the base sentence. On the summary charges 5, 6 and 7, you are convicted and sentenced to 8 months imprisonment. In respect of Charge 4 you are convicted and sentenced to 10 months imprisonment.
90 I order that one month of the sentences imposed for charges 5, 6 and 7 and two months of the sentence imposed for Charge 4 be served cumulatively with each other and with the sentence for aggravated burglary.
91 This gives a total effective sentence of 19 months imprisonment and I order that you serve 10 and a half months before becoming eligible for parole.
92 If not for your pleas of guilty I would have sentenced you to a total effective sentence of three years with a non‑parole period of 18 months, again allowing for Verdins considerations.
93 I declare that you have already served 276 days pre‑sentence detention which will be reckoned as already served.
94 I make the disposal order in respect of the knife.
95 You can sit down for a moment, Mr Hunn, I just need to talk to your barrister.
96 MR SMALLWOOD: As Your Honour pleases.
97 HER HONOUR: Mr Smallwood, first of all, in relation to sentence, is there anything that you wish to add in relation to that?
98 MR SMALLWOOD: No, just in relation to the pre‑sentence detention, Your Honour.
99 HER HONOUR: Yes.
100 MR SMALLWOOD: It's 277 days.
101 HER HONOUR: I beg your pardon.
102 MR SMALLWOOD: Not including today.
103 HER HONOUR: I vacate ‑ well, just because today is the first day of sentence.
104 MR SMALLWOOD: Yes, Your Honour.
105 HER HONOUR: I am prepared to accede to 277 days.
106 MR SMALLWOOD: As Your Honour pleases. Thank you, Your Honour.
107 HER HONOUR: I will vacate my sentence in that regard and I will declare pre‑sentence detention of 277 days.
108 Now, Mr Smallwood, because Mr Hunn is on video link do you wish me to leave the Bench so you can have a talk to him?
109 MR SMALLWOOD: Your Honour, we have made arrangements to speak with Mr Hunn directly later on this morning so we don't require that at this stage, but thank you for that offer.
110 HER HONOUR: All right, thank you, Mr Smallwood. Mr Prosecutor, is there anything that you wish to say ‑
111 MR BATTEN: No, Your Honour.
112 HER HONOUR: Yes, thank you. I am just signing those orders.
113 Mr Hunn, I understand that your legal representatives will be talking to you later on about the sentence that I have just imposed so I will now have the video link switched off and you will be returned to custody at Thomas Embling for the time being.
114 PRISONER: Thank you so much, Your Honour. I will make sure I don't muck up again, thank you.
115 HER HONOUR: You do that for yourself and everyone else, all right?
116 PRISONER: OK, Your Honour, thank you.
117 HER HONOUR: Thanks Mr Hunn.
---
0
2
0