R v Rose

[2015] VSC 614

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL JURISDICTION

SCR 2014 0157

THE QUEEN

v

DAVID ROSE

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JUDGE:	BEALE, J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June and 5 November 2015
DATE OF SENTENCE:	5 November 2015
CASE MAY BE CITED AS:	R v Rose
MEDIUM NEUTRAL CITATION:	[2015] VSC 614

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CRIMINAL LAW — Sentence – Intentionally cause serious injury – Plea of guilty - Elderly offender and victim – Offender suffers from poor physical and mental health – Five year Community Corrections Order imposed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy QC	Office of Public Prosecutions
For the Defendant	Mr J Williams	Victorian Legal Aid

1David Rose, you have pleaded guilty to one charge of intentionally causing serious injury which carries a maximum penalty of 20 years' imprisonment. 

Circumstances of Offending

2In September 2013 you were a resident of the Doutta Galla aged care facility in Avondale Heights.  Your victim, Stefano Bottegaro, was also a resident there.  At the relevant time you were 68 years of age and Mr Bottegaro was 87 years of age. 

3Mr Bottegaro suffered from dementia and had a habit of wandering the corridors of the facility.  On 28 September 2013, he twice wandered into your bedroom uninvited.  The first occasion occurred very early in the morning.  CCTV cameras which monitored the corridors of the facility captured Mr Bottegaro entering your room at about 4.50 am.  In your subsequent record of interview with police you gave the following account, at Q119, of what happened once he entered your room: 

…He come into my room…  I don't know how he got into my room… because… I lock my door…  the first thing I thought off (sic), oh, it's a member of staff… And the next thing I felt on the chest was fingers and hands on my chest.  And then it comes up to my mouth and puts the fingers in my mouth… And I looked up and I said, 'Get out of here or I'll kill you. This is my room, get out of here’.  He said, 'My room, my room'.. … then he walked over to my walker and he grabbed my walker and started to walk out. And with that, I just flew out of bed, and in a rage… I grabbed him by… the back of the pyjamas … and I pulled him towards me and he must have hit my fist… So I pushed him in the wall.  He said, 'This is my room' … and I threw him against the wall - against the door…  I walked over again and grabbed him by the shirt …and I pulled him back towards me and I opened the door and then I just threw him out…  I said, 'Now, piss off out of here and keep out of my room.  You come back into my room again and I'll kill you’.[1]

[1] Prosecution Opening [7].

4The CCTV cameras captured Mr Bottegaro falling backwards into the corridor at approximately 4.55 am.[2]  He ended up on his back.  You can also be seen close to him, falling forwards, but you managed to prevent yourself from falling on top of him.  You immediately went back into your room.  Mr Bottegaro wandered off. 

[2] The Prosecution Opening, at [8], alleges that Mr Bottegaro fell backwards into the corridor as a result of you punching him in the face but that is not captured on the CCTV footage.

5The second occasion on which Mr Bottegaro entered your room occurred later that night.  He was again wandering the corridors.  CCTV cameras captured him entering your room at 9.44 pm.  You gave an account of what happened once he entered your room in your record of interview.  In answer to Q124 you said this: 

The next time, it was on Saturday night.  He come into my room...  he's looked at me…  I've looked at him and I said, 'Get out of my room you wog bastard'. And … he’s looking at me. 'This is my room'.  I said, 'I told you last night, you come back into my room I'll kill ya'.  He said, 'You crazy, you – you bastard'…  And then I stayed on the bed and he come over and he puts his hands on me and starts scratching up my face, and then he’s punching… he scratched me on my chest… he wants to pull me shirt up and get… me out of bed…  he grabbed the walker… that when I… lost it…I threw him against the wall...[3]

[3] Prosecution Opening [12].

6The CCTV cameras captured you and Mr Bottegaro moving out into the corridor at 9.45 pm.  You proceed to punch him repeatedly to the head and face as he retreated.  After a couple of minutes you returned to your room.

7Mr Bottegaro was later found by staff still wandering the corridors.  He had a cut to his forehead, a swollen jaw and was bleeding from the mouth.  He was taken by ambulance to the Sunshine Hospital Emergency Department. 

8At the hospital he was treated by Dr Khullar who observed signs of recent injury, including swelling left jaw, a laceration inside his lip, bruising under his left eye, and a haematoma and abrasion in his left frontal region forehead. 

9Dr Khullar ordered a CT scan of Mr Bottegaro's brain which found:

Acute subdural haematoma overlying right cerebral convexity associated with moderate positive mass effect of suical effacement and right ventricle temporal horn compression, acute haemorrhage laid over tentorium cerebelli, acute subdural haemorrhage in right parafalcine falx/interhemispheric fissure anteriorly. Small right supra‑orbital and left frontal scalp haematomas. 

10On the question of management of this injury, Dr Khullar observed ‘not for operative management as high intra-operative/post‑operative risk of complication and death’. 

11Mr Bottegaro was discharged back to the nursing home. 

12Dr Khullar's opinion was:

His intracranial bleeding is likely due to head injury either from a fall or by blunt trauma.  This is a serious injury with a poor prognosis and will likely result in the death of patient. 

13At approximately 7.20 am on 26 October 2013 Mr Bottegaro died at the Doutta Galla facility. 

14An autopsy of the cause of death was determined as ‘complications of head injury in setting of dementia’. 

15Dr Lee who performed the autopsy commented: 

The mechanism of death is a general decline associated with early pneumonia and poor oral intake following the head injuries.  The head injuries worsened his underlying neurological condition which was the result of a mixed vascular and Alzheimer's dementia. 

Victim Impact Statements

16At the plea hearing, victim impact statements were received from Mr Bottegaro's daughter, Ann Marie McGrath, son‑in‑law Daniel McGrath and grandson Justin McGrath.  Mr Bottegaro's wife is still alive but the family chose, understandably, not to inform her of the violence which he suffered at your hands. The burden of deciding whether Mr Bottegaro should undergo surgery fell to his daughter, Ann Marie.  You heard the victim impact statements read out in this court.  Hopefully you realise that whilst Mr Bottegaro was your immediate victim, your offence also visited great and enduring suffering on his family. 

Prior Criminal History

17You do not have an extensive criminal history but you do have a prior conviction for violence.  The offence was recklessly causing injury for which you received a fine without conviction at Broadmeadows Magistrates' Court in September 2011.  Your victim was your second wife, who left you not long after the offence, which occurred on 14 October 2010.  According to the police summary for that matter, you entered your wife's bedroom whilst she was still in bed.  You yelled at her and punched her several times to the face and upper body.  She fled the house. 

18You also have some prior convictions for dishonesty matters but I do not consider them to be relevant priors. 

Personal History

19I turn now to your personal history. 

20From your counsel's submissions and the various reports I have received I have produced the following chronology, but I should note at the outset that, in the accounts you have given others, your recollection of dates is not always consistent. 

21You are now 70 years of age.  You never met your father.  He was a member of the merchant navy and had a brief affair with your mother.  Your mother's first husband left her when you were about 12 months' old.  She married again when you were about seven.  Her second husband, Charlie Rose, was a heavy drinker.  He subjected you to verbal and physical abuse.  Your mother died from a cerebral aneurysm when you were in your late teens. 

22You grew up in the Footscray area, completing your leaving certificate at Footscray High School at 15 years of age.  You were good at sport, captaining school football and cricket teams.  In your late teens, you took up boxing. 

23Your first job was at Angliss Meat Works as a machine operator.  Later you trained as a boot maker.  You married at 19.  At 21, you purchased a tip truck from your father‑in‑law and took over his business delivering sand and screenings.  This was the beginning of a long involvement in the trucking industry. 

24When you were 22 years of age, your son Darren was born.  He gave evidence at the plea hearing and impressed me as a loving and supportive son. 

25Your first marriage lasted about 12 years.  You left your wife in your early 30s to pursue an affair with a secretary named Nancy.  She was a secretary at the trucking business for which you were then working.  Not long after, you had a big win on the soccer pools, moved with Nancy to Gladstone in Queensland, and purchased a motel and some shops.  By your late 30’s those business ventures had failed. So too had your relationship with Nancy. 

26You returned to Melbourne and resumed work in the trucking industry as a driver, eventually purchasing a large refrigerated truck for a meat delivery business.  It was around this time you met your second wife.  Your marriage to her lasted approximately 30 years. 

27In 1989, when you were in your mid‑40s, you had a serious work accident.  The injuries you suffered included broken vertebrae, broken ribs and a closed head injury.  Surgery resulted in the wrong nerves in your spine being fused.  Multiple operations over many years to try and fix the problem failed.  You suffered chronic back pain and became addicted to prescribed painkillers. 

28In your early 50s you commenced seeing a drug and alcohol specialist, Dr Monheit, who treated you up until April 2011.  From the outset, Dr Monheit prescribed methadone for pain relief.  You were on high dosages for many years and you found the side effects debilitating. 

29In 1997, you had a cerebral bleed, that is, a stroke. 

30In 1998, when you were about 53, Dr Monheit admitted you to Vaucluse Hospital for two weeks.  You were on antidepressants and analgesics. 

31Over the next 12 years, Dr Monheit continued to see you once or twice a month.  According to his report you ‘gradually deteriorated in health and ability to look after [your]self.  [You] were getting severe headaches, some blackouts and gastric pain’.[4]

[4] Report of Dr Ben Monheit, 5 June 2015, unpaginated, page 1.

32In October 2010, as I mentioned earlier, you assaulted your second wife and were charged with recklessly causing injury.  

33In November 2010, you overdosed on methadone and were admitted to the Royal Melbourne Hospital. 

34In December 2010, you were seen by a psychiatrist from the Northwestern Mental Health Service and diagnosed with delusional jealousy and cognitive deficits secondary to your cerebral bleed and previous head injury.  You reported depressive symptoms and agitation, leading to aggressive behaviours.  You had sleeping problems and mood fluctuations. 

35In early 2011, your second wife left you.  Your son found you living in squalid conditions, unable to properly care for yourself.  He eventually got you into the Doutta Galla aged care facility, where, of course, the current offence occurred on 28 September 2013. 

36Following the offence, you made a serious suicide attempt by putting a plastic bag over your head and then wrapping your head in a blanket.  You were admitted as an inpatient to the Broadmeadows Acute Aged Person Mental Health Unit from 3 October 2013 to 7 January 2014.  On your discharge from the Mental Health Unit the following diagnoses were made:[5]

·Adjustment disorder with disturbance of mood and conduct

·Somatic symptom disorder - predominantly pain

·Factitious disorder - Stooping posture

·Paranoid personality disorder - Differential diagnosis, delusional disorder, persecutory type

·Impulse control disorder

·Probable frontal temporal neurocognitive disorder. 

[5] Report of Dr Torr, 17 June 2015, unpaginated, page 4.

37Added to these conditions, and according to the psychiatrist Dr Torr, you have an acquired brain injury, which she suggests stems from your work related accident in the 90’s where you suffered a closed head injury.[6] 

[6] Ibid 6.

38Returning to the chronology, after your discharge in January 2014 from the Mental Health Unit, you took up residence at McLellan House.  According to Dr Torr:

McLellan House is a 30 bed locked low‑level care aged care facility operated by Northwest Aged Persons Mental Health Program, providing residential care to older adults with enduring mental illnesses who require a level of supervision, structure, support and mental health care that is not available in mainstream aged care facilities. Many of the residents have treatment resistant mental illnesses with associated disturbances in their behaviour including intrusive behaviour and loud repeated expressions of psychotic thoughts.[7] 

[7] Ibid 7.

Expert Reports

39Turning now to the expert reports, your counsel tendered reports from consultant psychiatrists Nicholas Owens[8] and Jennifer Torr.[9]  There was also a report from a drug and alcohol specialist, Dr Benny Monheit.[10]  I commissioned a further psychiatric report, which was provided by Dr Remy Glowinski[11] from Forensicare.

[8] Two reports from Dr Owens, dated 11 March and 15 May 2014.

[9] Report of Dr Torr 17 June 2015.

[10] Report of Dr Monheit, 5 June 2015.

[11] Forensicare Report of Dr Glowinski, 13 August 2015.

40In addition to the disorders that were diagnosed on your discharge from the Mental Health Unit in 2014, the reports I have received also refer to you having the following disorders:

·Delusional disorder - persecutory type

·Depressive disorder

·Probable frontotemporal neurocognitive disorder

·Personality disorder of paranoid type

·Differential diagnosis of obsessive personality disorder or obsessive compulsive disorder

·Acquired brain injury

41Dr Glowinski summarises and discusses the opinions of Doctors Owens and Torr regarding your mental health problems, as well as offering his own opinion. At page 9 of his report he writes: 

In recent years his independence has lessened due to medical conditions and he has spent more time in structured care environments.  In these settings it appears that interpersonal difficulties have become more apparent.  He describes himself as heavily engaged in routines, particularly those concerning cleanliness.  He describes himself as being pre‑occupied with his need for personal space.  He has been described in reports as being difficult to deal with and having a sense of entitlement without apparent capacity to balance his need with those of others.  The two psychiatrists who provided reports have mentioned diagnoses of paranoid personality disorder and a rigid and obsessive personality type.  My impression is that Mr Rose likely has a personality disorder with prominent paranoid elements. 

Obsessive compulsive disorder was also mentioned as a potential diagnosis but my impression is that his routines and rigidity more likely relate to his personality style than to this disorder.  I note that a number of other diagnoses are mentioned in Dr Torr's and Dr Owens' reports, including somatoform and chronic pain disorders.  While there appears some basis for these diagnoses, I don't feel that I am in a position to either confirm or refute these diagnoses, and in any case I don't feel that they influenced Mr Rose's index offending. 

There is a mention of possible acquired head injury involved in Mr Rose's case.  While outside the area of my expertise I only detected subtle signs of cognitive dysfunction in Mr Rose.[12] 

[12] Ibid 9.

42Having regard to the opinions of Dr Owens[13] and Dr Glowinski[14] in particular, I do not find that you were suffering from an acute mental illness at the time of the offending but I find that your various mental conditions are likely to have contributed to your offending against Mr Bottegaro.  It is a nice question whether the principles in Verdins[15] are applicable.  Ultimately, that is not an issue I have to decide. 

[13] See Report of Dr Owen, 15 May 2014, 8.

[14] See Forensicare Report of Dr Glowinski, 13 August 2015, 10.

[15]R v Verdins (2007) 16 VR 269.

Summary

43You have pleaded guilty.  Your criminal history consists of one relevant matter for which you received a fine without conviction some four years ago.  The Sentencing Act 1991 requires me to regard imprisonment as a sentence of last resort.  Were I to impose a sentence of imprisonment today, your physical and mental health problems would make you particularly vulnerable in that environment. 

44In Dr Owens' first report there appears the following passage which was highlighted by the prosecutor during the plea hearing: 

It is clear that Mr Rose's mental health needs have been quite complex over recent years and that they have interacted with ongoing difficulties with a chronic pain syndrome.  In the event that Mr Rose is sentenced to a period of imprisonment I would regard Mr Rose as a highly vulnerable individual to the hostile environment of a prison.  Not only is his age a significant factor in this regard but his personality disorder and lack of effective coping mechanisms (e.g. frequent suicidal threats in the past) would I feel place him at significant risk of adverse incidents with co‑prisoners and custodial staff.[16] 

[16] Report of Dr Owen, 11 March 2014, 7.

45In Dr Owens' second report there appears the following passage which was highlighted by Mr Gyorffy in his further written submissions: 

In my view this man would be at significant risk in a prison environment, that is risk of deterioration in his mental state, risk of self‑harm and risk of his medical conditions worsening owing to the stress of incarceration.  He would also be at risk of inviting offensive reactions from other inmates as a result of his rigid personality style.[17]

[17] Report of Dr Owen, 15 May 2014, 9.

46Dr Glowinski states in his report:

I agree with Dr Owens that Mr Rose may be potentially vulnerable in a custodial setting due to his personality style and his medical needs.[18] 

[18] Forensicare Report of Dr Glowinski, 13 August 2015, 10.

47The prosecution and the defence rely on these expert opinions for what is in effect a joint submission that a Community Corrections Order (“CCO”) is an appropriate sentence in this case. 

48It goes without saying that your offence was a serious one.  However the decision of the Court of Appeal in Boulton[19] makes it plain that a CCO can be an appropriate sentence for serious offences.  At paragraph [131] the court said: 

A CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).  The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[20] 

[19]Boulton v The Queen [2014] VSCA 342.

[20] Ibid [131].

49I had you assessed for a CCO.  The report highlighted your continuing anger management problems and lack of insight, notwithstanding your willingness to undertake a CCO and your express desire to change your behaviour.  The report is pessimistic about the utility of a CCO.  It states ‘this service has reservations that a CCO would be effective in addressing Mr Rose's offending and deterring possible re-offending.’[21]  It goes on to state that ‘Correctional Services do not have the capacity to facilitate transport for Mr Rose to attend appointments on a permanent and ongoing basis.’[22] 

[21] Pre-Sentence Report of Mr Carrick and Mr Ford, 25 September 2015, 4.

[22] Ibid.

50Fortunately you have the ongoing support of your son.  Without wishing to place undue burdens of him, I expect he will be of considerable assistance in making sure you attend the necessary appointments pursuant to your CCO.  No doubt McLellan House will also offer what assistance it can.  I was informed this morning that McLellan House is only about a kilometre from the Broadmeadows Corrections service. 

51I also expect that Correctional Services will devote appropriate resources to your case so that the Court of Appeal's remark in Boulton, that the advent of CCO’s has "changed the sentencing landscape," does not ring hollow.[23] 

[23]Boulton v The Queen [2014] VSCA 342, [113].

52As was made abundantly clear in the reports of Doctors Torr and Glowinski, you pose a risk of harm to co‑residents and staff at McLellan House where you have resided now for approximately 22 months.  As Dr Torr further notes, that risk has been ‘somewhat mitigated by the experienced nursing staff’.[24] 

[24] Report of Dr Torr, 17 June 2015, unpaginated, page 8.

53The rehabilitative and deterrent aspects of a CCO are directed at further mitigating the risks to others. 

54If you assault or threaten to assault others, indeed, if you commit any offence of a violent nature, you will breach your CCO and can be brought back to court and be resentenced for this offence, as well as being sentenced for any new offence. 

55The fact that Dr Glowinski with reference to the issue of possible acquired brain injury only detected ‘subtle signs of cognitive dysfunction’[25] is a positive factor.  It suggests to me that you have the capacity to appreciate that if you breach your CCO by further violent offending, the likely outcome will be a period of imprisonment, notwithstanding your age and health problems.  The CCO is likely in my view to discourage you from further offending. 

[25] Forensicare Report of Dr Glowinski, 13 August 2015, 9.

56Accordingly, I impose on you a CCO for five years.  The length of the order reflects the seriousness of your offence and the need to deter and rehabilitate you, not only in your interests, but in the interests of the protection of the community, in particular your immediate community at McLellan House. As for special conditions, I order that you undergo supervision by corrections, that you undergo treatment in respect of your mental health problems, and in particular anger management counselling.  There will also be judicial monitoring of your progress, with a review every twelve months. 

57You must report to Broadmeadows Justice Service Centre within two working days of the making of this order. 

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