R v PSJ
[2004] VSC 502
•29 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1472 of 2004
| THE QUEEN |
| v |
| PSJ |
JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2004 | |
DATE OF SENTENCE: | 29 November 2004 | |
CASE MAY BE CITED AS: | R v PSJ | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 502 | |
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SENTENCE – Youthful Offender – Psychiatric Illness – Whether suitable for order as to detention in Youth Training Centre – Whether pre-sentence detention to be taken into account - R v Hill.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Montgomery | Bernie Balmer & Associates |
HIS HONOUR:
Ms P, you have pleaded guilty to one count that on 22 January 2004 that without lawful excuse you intentionally caused serious injury to Anne Lynette Fenton.
The circumstances of the incident can be briefly described as follows. At the time of this offence you were aged 16 years, your date of birth being 14 October 1987. You were at your home in Sunbury on that afternoon, Thursday, 22 January 2004. Ms Fenton, who shared the house with you as part of a transitional Housing Scheme programme conducted by the Hume City Council, had gone out during the afternoon to watch a film at a nearby cinema. On returning home at 7.15 p.m., she went to her bedroom and went to sleep. At about 8.30 p.m. Ms Fenton got up and went to the kitchen to wash dishes that she had left there from the previous day. She was aware that you were in your bedroom but she did not speak to you.
As she was doing the dishes, she felt sharp blows to the back of her neck and realised that she was being stabbed. She turned to see who was inflicting the blows and noticed you standing there behind her with a bloodied knife in your hand. Ms Fenton said to you, “What the hell was that for?” and you replied, “I told you to leave”. You then continued to attack Ms Fenton, stabbing her a total of 17 times, she receiving wounds to the head, neck, hands, breast and stomach.
The final stab wound executed by you was to Ms Fenton’s upper arm. This caused the blade of the knife that you were using to break, leaving the blade inside the victim’s arm. You then left the scene taking with you the knife handle. She staggered to nearby houses to seek assistance. She finally gained assistance at No. 100 Paisley Street, Sunbury and was shown to the bathroom where she waited until the ambulance arrived. At this point Ms Fenton removed the knife blade from her arm. She was conveyed to the Royal Melbourne Hospital where she received emergency surgery to life threatening injuries before being admitted to the Intensive Care Unit of the hospital.
After this incident you attended at the house of a friend, Renee Weiss, and Renee’s mother Susan, who were unaware of what had occurred. You had a shower and the following morning you washed your clothes. As news broke of the incident that had occurred, you made veiled admissions to Mrs Weiss and Renee saying that you had done something terrible. During the following morning, Miss Weiss located the handle of the knife hidden amongst clothing.
After deliberating for most of that day, you then handed yourself into police at Sunbury at about 10 p.m. on Friday evening. A tape recorded interview was conducted in relation to the events. You made no comment and gave no explanation for what had occurred.
Ms Fenton has provided a Victim Impact Statement. The stab wounds to her body required over 300 stitches. She now has no feeling in two fingers of her right hand. She has a loss of feeling in the fingers of her left hand and a loss of feeling in the left arm and down her left side. She has only limited ability to write with her right hand. The clothes that she was wearing had to be discarded. She suffers from emotional trauma as a consequence of your conduct. She is unable to trust young people. She is suspicious of workers and she has had to leave the Sunbury area because she no longer felt safe. She experiences nightmares and suffers from a loss of sleep. They are all consequences of the crime which you have committed and which I must regard as a most serious one.
On Monday 22 November 2004, Mr Montgomery, who appeared on your behalf on the plea, submitted the appropriate sentence that I should impose should be one of three years’ youth training under s.32 Sentencing Act 1991. The learned prosecutor in the course of his reply submitted that such an order would be an appropriate one in all of the circumstances.
At the conclusion of the plea I made an order pursuant to s.96 Sentencing Act 1991 for a pre-sentence report. That was provided to me on 26 November 2004. The report, Exhibit D, is an extensive one. It was prepared by Ms Vonda Coyne, the Unit Co-ordinator at the Cullity Unit at the Parkville Youth Residential Centre (hereafter PYRC) who gave evidence before me on the plea. The conclusion reached in that pre-sentence report was that you are a suitable candidate for a youth training centre order.
Despite the broad agreement between the parties as to the appropriate sentencing disposition, there is an issue between the parties which requires me to consider some of the other evidence that was tendered on the plea in a little detail.
You were born in Melbourne and you spent the first 11 years of your life residing with your parents and your brother and your sister. Your family moved to Diggers Rest and then to South Australia. Your father was apparently a heavy drinker and was violent and abusive both to your mother, yourself and other members of the family. You grew up in an extremely distressing environment. It appears that you became close to and dependent upon your maternal grandmother who lived close by and that whenever there was family conflict, you would turn to her for care and support. She eventually left the area, which caused you to feel particularly isolated and distressed.
In 2000 a notification was placed with Child Protection, the Department of Human Services, as a consequence of your behaviour and your need for support. You had by then left your family environment. You were consuming substantial amounts of alcohol and you had become increasingly unmanageable. It was no longer possible for you to live at home.
Following a home placement in St Albans, you initially became more settled, but there appeared to be conflict within the placement and eventually you returned to reside with your mother. Unfortunately, this was unsuccessful and you then became transient, moving between, and in and out of, home placements, your mother’s home, friends’ places and the streets. You did not stay long at any one of these places as you did not wish to be a burden on anyone.
In 2001 at the age of thirteen years you went to Queensland to stay with your father for two months. Unfortunately, this was unsuccessful and you recall this period as being extremely unsettling and upsetting at times. Your father had remarried and was not able to provide for either your emotional or your physical needs. You left your father’s home and became transient for approximately six months in Queensland, sleeping on the streets or in homeless shelters. During this time you had little contact with your mother.
On your fourteenth birthday you returned from Queensland and stayed with your mother for a short time until you found alternative accommodation at the Weiss’ home where you remained for six months. This arrangement broke down and at the age of fifteen you were accepted into transitional housing with the Hume City Council in Sunbury where you were residing at the time of this offence.
Before a youth training centre order can be made I am required by s.32 Sentencing Act 1991 to be satisfied that there are reasonable prospects for your rehabilitation as a young offender, or that you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. I am satisfied as to both of those requirements and consider an order for a youth training centre appropriate.
For the purpose of the plea, a number of psychiatric reports were tendered. The first of those reports was a report by your treating psychiatrist, Dr Teresa Flower. After referring to your personal history and your existing condition, Dr Flower expressed the following conclusions. She noted that you had been in contact with Psychiatric Services since you were the age of ten. You were diagnosed early on as having an adjustment disorder. By that time, you had already indicated to those in a position to assist you that you had wanted to kill yourself and your mother and that in one episode you had pointed a knife or scissors towards your mother. You were in contact with Psychiatric Services for some six months prior to the offence which now brings you before this Court. Dr Flower has considered that you may well have been developing a psychotic illness.
After her own examination and in consultation with others who had been treating you, Dr Flower has found that you disclose symptoms consistent with the diagnosis of an obsessive compulsive disorder. She stated:
“Whilst it is clear that Miss P has had a serious psychotic disorder, it is difficult to offer any diagnosis of the first episode of psychosis as symptoms have not appeared to have been of more than six months’ duration and it is not clear whether her symptoms were as a result of her extensive use of marijuana or whether they are part of an emerging illness such as schizophrenia. For a person of Ms P’s age, this will become clearer over time. However, during the period of time that Miss P was non-compliant with medication she became very irritable and suspicious of others which suggests the symptoms reappeared in the absence of medication. This may be more suggestive that her diagnosis may ultimately be that of schizophrenia.”
In her pre-sentence report, Ms Coyne makes reference to the fact that since your admission to the residential centre you have displayed inconsistencies in your behaviour. You have appeared extremely settled when taking your medication, but when you have been off your medication or withdrawing you have become erratic and at times unreasonable. There are references in the psychiatric reports that were tendered on the plea to the same effect.
Dr Flower has further observed that you have had an excellent response to medication and that you have complied with treatment in the last three months. She considered that it would be likely that you could be managed adequately in the community. She noted that it was difficult to assess your potential for relapse. She considered that if the consumption of marijuana had played a part in the initiation of your psychotic illness, that the use of marijuana in the community would be a risk factor for further episodes of illness. She noted that you had been abstaining from the use of marijuana throughout your incarceration and that you had expressed to her your determination to continue to abstain. She concluded that if your illness proves to be schizophrenia, then you are likely to be vulnerable to a further relapse in your symptoms at some point in the future. Relapse, she said, cannot be predicted with accuracy, but the continued engagement of Psychiatric Services with close monitoring of your mental state would enable prediction of a relapse to occur more steadily.
In the penultimate paragraph of the report, Dr Flower said that if you were sentenced to a further period of incarceration at the Parkville Youth Residential Centre your rehabilitation could continue with participation in your TAFE program and through treatment at the Adolescent Forensic Health Services.
Following the receipt of Dr Flower’s report, a psychiatric court report was provided by Dr Debra Wood dated 23 September 2004. Dr Wood set out in some detail your personal history, some of which I have already referred to and I think it unnecessary to examine in more detail the comprehensive history obtained by Dr Wood.
Similarly, Dr Wood examined in some detail the symptoms of your obsessive compulsive disorder, which it is also unnecessary to relate. She reported upon your anxiety and your psychotic and other symptoms and concluded:
“The issue of whether or not Miss P also suffers a psychotic disorder is in my opinion vexed. The difficulty therein is that Miss P gave, during my interview with her, a description of some experiences which seem unequivocally to be those of psychosis, but also a number of others that are less certainly so and which are perhaps explicable in terms of her previous experiences, personal vulnerabilities and co-morbid OCD. The situation is compounded by the fact that I have not been Ms P’s treating psychiatrist and am therefore reliant upon the opinion and records of others, by the efflux of time between the alleged offence and our interview, by Miss P’s conviction that she does not have a psychotic illness, by her established treatment, and by the diagnostic difficulties that may be encountered early in the course of an illness.”
Dr Wood referred to a number of your experiences that she described as “with a high degree of certainty seeming to be psychotic”. She then referred to other experiences which are of less diagnostic certainty.
Based upon that background of uncertainty, Dr Wood, with some reservations, concluded that at the time of your offence you were not suffering from a psychiatric disorder which made available to you any defence of mental impairment. It was clear, however, both having regard to Dr Wood’s opinion and those of the other psychiatrists whose reports were tendered, that you were, at the time of this offence, quite disturbed and that you were reacting to the fact that the victim had apparently refused to maintain a tidy household which had caused you, over time, a great deal of stress and which aggravated the disorder to which I have already referred.
A further report was tendered on the plea from a Dr Robert Adler dated 12 November 2004. Dr Adler had been working with you at the Melbourne Juvenile Justice Centre and had seen you on a number of occasions as the consultant psychiatrist on call. He had discussed your condition with your treating psychiatrist, Dr Flower. In Dr Adler’s conclusions he stated that at the time of your remand to the PYRC you were assessed by two experienced psychiatrists as suffering from command hallucinations and other psychotic symptoms consistent with the diagnosis of a first-episode psychosis, possibly marijuana induced. Dr Adler noted that at the time of the present assessment there was no evidence of current psychotic symptomology.
Dr Adler made the following significant observation. He noted that you had indicated that you felt happier in the PYRC than you had in any previous period in your life, and that you indicated to him that you would possibly offend again if released in order to be locked up once more. You vehemently denied any symptoms of a psychotic illness either now or at the time of committing the offence, but you recognised that what you had done was wrong. You had shown no significant remorse for your actions. He further opined that your current presentation is undoubtedly influenced by the substantial amount of psychotropic medication which you are taking, albeit reluctantly at times, and your clearly stated wish to remain in the security of the PYRC.
I propose to direct that you be detained in a Youth Training Centre for three years. You have served 312 days in detention already (inclusive of today’s date). Should however this period of detention that you have already served be reckoned as a period of the detention already served?
Section 35(1) Sentencing Act 1991 provides:
“If a young offender is sentenced to a term of detention in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence, or proceedings arising from those proceedings, must, unless the sentencing court otherwise orders, be reckoned as a period of detention already served under the sentence.”
Mr Kayser, who appeared for the Crown, drew my attention to a number of authorities that have dealt with the question whether or not it is permissible to order the maximum period of three years’ detention under s.32 whilst at the same time ordering that the period that has already been served in detention not be taken into account, so as to make the detention effectively longer than the maximum detention period.
In R v Gilbert[1] Hampel J came to the view that in addition to ordering the maximum period in detention at a youth training centre, it was open to the Court to provide that the period that had already been served prior to sentence, should not be taken into account.
[1]Unreported VSC 16 September 1994.
The Court of Appeal in R v Hill[2] gave further consideration to this question. Having referred to the decision of Hampel J in Gilbert with apparent approval, the Court said:
“There are here two considerations which appear to us to be diametrically opposed to each other. On the one hand, there is the consideration of what we have termed the ‘clear intention’ of Parliament is that the period of detention not exceed three years; on the other hand, if we take the view, (as we do), that three years’ detention is inadequate, then we would be obliged to sentence the applicant to imprisonment. Not without considerable hesitation, we have finally concluded that though ‘device’ it may be, that word ought not necessarily be given a pejorative meaning, and in the particular circumstances now before the court it is a legitimate device, and one, we might add, which counsel for the applicant urges us to adopt. Furthermore the adoption of this course will assist in the achievement of two objectives which are important in the case of a youthful offender, particularly so where the offender is a child. The first of these is that rehabilitation is usually far more important than general deterrence; the second is that such an offender is not, if it can be avoided, sent to an adult prison for a first offence: see R v Misokka, (unreported, Court of Appeal, 9 November 1995) at 6-7 and the authorities therein cited.
We think that the appropriate term of detention is four years. To achieve that end, we sentence the applicant to detention at a youth training centre for three years, and we will make an order which has the effect that one year of the period already served not be reckoned as already served. ……..it seems to us, that the result will be achieved by declaring, pursuant to s.35(1), that the period of 130 days be reckoned as already served.” [3]
[2][1996] 2 VR 496 at 505.
[3]Supra (n. 2) at 505.
The learned prosecutor submitted that I should adopt a similar course in this case. Mr Montgomery submitted on your behalf that I should make the usual order under s.35 and order that the period now in excess of 300 days which you have served in detention be taken into account.
In considering what course I should adopt, I have borne in mind that in the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public can have no greater interest than that you should become a good citizen. The difficult task for the court is to determine what treatment gives you the best chance of realising that objective. Rehabilitation is the dominant consideration.[4]
[4]C (a child)v R (1995) 83 A Crim R 561; MacKenzie & Nicholson v R (1984) 13 A Crim R 330.
In my view, to make an order for an effective term of detention of almost four years would not be an appropriate order having regard to the circumstances of the offence, your mental condition, your age, and your prospects of rehabilitation.
I order that you be detained for three years in a Youth Training Centre pursuant to s.32 Sentencing Act 1991. I direct, pursuant to s.35 of the same Act, that the period of 312 days (inclusive of today’s date) which you have already served in detention, be taken into account as a period of detention already served under the sentence and that this declaration be so noted in the court record.
It was not open to me, as the sentencing judge, to fix the period of detention at a Youth Training Centre by reference to the time at which you are likely to be released on parole,[5] but it was important that I ascertain how soon you might be given leave or unescorted leave if I made the order which Mr Montgomery sought.
[5]R v Governor of Her Majesty’s Gaol at Pentridge:Ex parte Cusmano [1966] VR 583 at 587.
If you are classified by the Youth Parole Board as a serious offender, I understand you will be required to serve one quarter of the sentence imposed before you are eligible for parole. There is no flexibility. Independent of that circumstance, the Department of Human Services begins a program of escorted leave very early on into the terms of the sentence. Initially, this usually involves a day’s escorted leave, most often with a youth worker, for the purposes of either education or pleasure. The basis of granting such leave is whether or not you are of good behaviour and whether you pose a risk of absconding. Once you have satisfied the authorities of your good behaviour on escorted leave, you may be allowed to have unescorted leave. Classification as a serious offender has no bearing upon the granting of either escorted or unescorted leave. The aim of the program is rehabilitative in order to reintegrate the person back into the community as quickly as possible.
It is clear from the medical reports to which I have referred that your diagnosis is uncertain. Whilst that uncertainty remains, it is evident that careful monitoring and precautions will need to be taken to address a possible diagnosis of schizophrenia or other serious psychotic illness.
I refer also to the passage from Dr Adler’s report in which you referred to risks that might be associated with your discharge into the community and your fear that you might possibly offend again, if for no other reason but to be returned to the youth training centre.
These are factors which will need to be very carefully borne in mind by those responsible for administering leave into the community and any other transitional provisions that may be considered.
The order of the court is that you be detained in a Youth Training Centre for a period of three years pursuant to s.32 Sentencing Act 1991. In addition to that order, I make a “disposal” order pursuant to s.78(1) Confiscation Act 1997 in relation to a knife blade and black knife handle. I also consider it appropriate that I make an order pursuant to s.464ZF(2) Crimes Act 1958 as to the taking of a forensic sample.
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