R v Young
[2016] VSC 646
•28 October 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0058
| THE QUEEN | |
| v | |
| ANDRE WAYNE YOUNG | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 October 2016 |
DATE OF SENTENCE: | 28 October 2016 |
CASE MAY BE CITED AS: | R v Young |
MEDIUM NEUTRAL CITATION: | [2016] VSC 646 |
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CRIMINAL LAW – Sentence – Recklessly endangering life – Plea of guilty – Remorse - Mental state – Verdins principles not relied on – Prospect of deportation – Section 6AAA Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC | The Office of Public Prosecution |
| For the Accused | Ms M Tittensor | Victorian Legal Aid |
HIS HONOUR:
Andre Wayne Young, you have pleaded guilty to one count of recklessly endangering life contrary to s 22 of the Crimes Act 1958 (Vic). That offence was committed by you on 10 September 2015.
The maximum penalty for recklessly endangering life, contrary to s 22 of the Crimes Act 1958 is 10 years’ imprisonment. On 17 October 2016, I heard a prosecution opening and submissions in relation to this matter and sentencing submissions on your behalf presented by your counsel Ms Tittensor.
It is now my responsibility to sentence you for this offence.
Circumstances of offending
You and the victim of this offence, Candice Britton, had been in a de facto relationship for seven years and that relationship had produced a three year old daughter. You were a couple ordinarily living in Nathalia in northern Victoria. Candice Britton was 25 years of age at the time of your offence and suffered from a number of medical issues which required regular treatment at the Alfred Hospital in Melbourne.
Her medical conditions were serious and included cystic fibrosis, a bilateral lung transplant and bowel surgery. She also suffered from a number of secondary conditions consequential upon those previously mentioned including depression as well as conditions caused by her use of medications.
Because of those medical circumstances affecting her, you and she would regularly travel to Melbourne to attend appointments. You would stay at the Park Regis Hotel in St Kilda Road, which was close to the Alfred Hospital.
On 9 December 2015, the two of you travelled to Melbourne and checked into room 304 at the Park Regis Hotel. That room is located on the third floor of the building.
On the following day, you attended the Alfred Hospital and Ms Britton attended to various medical commitments. You later returned with her to the hotel and, in the hotel room, consumed alcohol and watched television.
At some stage you left the room to do some laundry and, upon your return, Ms Britton noticed that your mood appeared to have changed and you became abusive towards her. Without warning, you picked up a table in the room and used it to smash a window. You then grabbed Ms Britton and attempted to push her out of the broken window. The hotel manager heard the sound of smashing glass and a woman screaming and went to investigate and, at the time that he did that, you were still attempting to push your partner out of the window. At one stage she was half-out of the window and being injured by the broken glass, injuries which you had caused.
The manager arrived and told you to stop and that the police were coming, but you continued to try and push her out of the window. Somehow, she managed to get back inside the room and ran to where the hotel manager was standing. He protected her taking her outside the room and behind the locked door of the hotel room leaving you inside. Ms Britton was then taken to the foyer of the hotel and was assisted until the ambulance arrived.
The police were called and, upon their arrival, were directed to room 304. By then you had left the room. You were later located in a stairwell, apparently with a cable around your throat. You were arrested and taken to the police station. At the police station, as you were being taken to an interview room, you broke free from police and ran towards the door before being recaptured.
When you were examined by a Forensic Medical Officer some time afterwards, you were assessed as unfit for the purpose of being interviewed and you were taken to hospital for further assessment and treatment and then released back into police custody. You have been in custody since that date.
During the course of the proceedings before me, three photographs of Candice Britton were tendered as exhibit B. These photographs dramatically depict the injuries she sustained during the attack including lacerations to her right eyebrow which required stitching, as well as lacerations to her right and left knees. There was bruising and contusions all over her body. This was a frightening and violent attack that you launched against her. As will be seen, your attack appears to have been very much out of context with the way you conducted yourself during the relationship. You were consequently charged with various offences on 10 December 2015.
A committal mention was held on 3 March 2016. On 16 May 2016, there was a further committal mention where the matter proceeded without any witnesses being called. At that stage you pleaded not guilty by reason of your mental impairment to charges of attempted murder, reckless conduct endangering life and intentionally causing injury as well as escape from police. As I followed it, you had not contested any of the evidence about what took place on 10 December 2015.
After enquiries were made as to whether or not a defence of mental impairment was available to you and a response received in the negative, a plea offer was made on your behalf on 16 September 2016 to the charge to which you have now pleaded guilty, a charge of recklessly endangering life.
Unfortunately, the victim of your attack, Candice Britton, died on 23 August 2016 from her medical conditions. Her death was unrelated to your attack on her. I accept that despite your conduct, her death is a significant hardship for you.
There can be no doubt that this is very serious offending, as the prosecutor submitted during the course of the proceedings. The experience was no doubt a terrifying one for Candice Britton, and it occurred in circumstances where she had said and done nothing to provoke your attack on her. She was seriously injured and, as I understand it, you made several attempts to push her out of the third floor window.
It would seem that your actions were quite spontaneous and difficult to understand. Your counsel has told me that in the months leading up to this incident you were undergoing what she described as unusual stress in your life. There had been an allegation that your daughter had been sexually assaulted by Ms Britton’s father, who had been looking after her whilst you and Ms Britton were in Melbourne. That allegation which, as I understand, has never been taken further, caused you some distress. Also, in November 2015, your medication was increased to assist you to cope with that additional stress. There was some indications that you had taken far more of the medication than you should have. If that be the case, though the evidence is not by any means clear, it may have contributed to your offending. Mr Cadell, who is your mother’s partner, described some of your behaviour in the weeks leading up to the incident, including what appeared to be delusional behaviour. On the day before you attacked Ms Britton, you had rung police and said that there was a person who was going to kill you. A welfare check was conducted at the Park Regis hotel. All was found to be normal.
Your instructions to your counsel are that you have no memory of the incident and no memory of hurting Ms Britton.
Following your arrest for this incident, you were treated with anti-psychotic medication, risperidone. You presently take a mood stabiliser rather than the dexamphetamine you had been prescribed previously as ADHD medication.
Plea of guilty
Having been charged with attempted murder, you offered to plead guilty to this offence and the prosecution accepted your plea. Whilst it was not an early plea, the delay in entering it was reasonable given the circumstances. That delay was so that a legitimate inquiry could be made as to whether a defence of mental impairment was available to you. I am satisfied that your plea does represent your acceptance of responsibility. I am also satisfied that you are very remorseful for what you did to Ms Britton.
Prior criminal history
You do have a prior criminal history, which was described by your counsel as ‘not extensive’. Your criminal history began at the Cobram Magistrates’ Court in 2009 and, also, it would appear, a bail offence which is difficult to relate to any other particular offending. In 2011, you appeared in the Magistrates’ Court in relation to reckless conduct endangering serious injury and other driving matters. That involved the use of a motor vehicle for the purpose of showing off and what is now known as ‘hooning’, as a result of which a collision occurred between your vehicle and a police car. You also fled the scene afterwards.
The result of that offending was that you were sentenced to four months’ imprisonment and required to serve one month of that four month period, the balance being suspended.
A few months later, you again appeared in the Shepparton Magistrates’ Court in relation to another charge of recklessly causing injury, assault in company, failing to answer bail and unlicensed driving. Your explanation for that offending related to assisting a friend who had been assaulted following which you attempted to get the friend to the friend’s car to prevent a continued assault. There was also a further charge in relation to a refusal to accompany police which related to a car which you had purchased for your partner Ms Britton but which was fitted with false number plates.
The overall result of those charges was that you were placed on a community based order with 100 hours of community work. There was a breach of that order in 2012 and, on the hearing of the breach, the court reduced the number of hours work that was required to be carried out due to your commitment to Ms Britton.
Personal circumstances
You are 28 years of age and, obviously from the material before me, you have had a difficult life. As a young person, you suffered violence at the hands of your grandfather and you have a life-long learning issue as a result of a diagnosis of ADHD. That condition was apparently left untreated for a long time.
You maintained employment at an abattoir in Nathalia for many years and you maintained a long relationship with Ms Britton.
Given the history of your relationship with Ms Britton, it seems clear that this attack on her was very much out of context. The material suggests you appear to have been a committed partner and a likewise committed parent to your child.
You were born in New Zealand in Wanganui on 20 February 1988. Your mother was 19 years of age when you were born. Your relationship with your biological father was non-existent. Your mother had a further relationship with another man with whom she had two children, who are your half-brothers.
Your counsel has told me that your childhood was unstable and troubled and that you misbehaved from time to time, no doubt as a result of the emotional and other difficulties you were facing. For a time as a child you lived with your grandfather who, as it turned out, was a violent alcoholic, beating your grandmother and also you on occasions. You were then placed in a boys home in Auckland, which was some considerable distance away from where you lived. That, however, was an improvement as you escaped the neglect and abuse you had been suffering with your grandfather.
When you were about 12 years of age, your mother commenced a relationship with Phillip Cadell, who had been holidaying in New Zealand. Ultimately, your mother and you came to Australia to live with Mr Cadell on a farm in Nathalia. The years you spent with him on the farm were positive and you came to regard him as a father figure and still do. During this time, your talent for things mechanical became apparent and you were significantly engaged in the farm activities. Your mother and Mr Cadell were at court for the hearing of your plea and remain supportive of you.
Your education finished at the age of 14 and effectively you were unable to read or write. You had trouble focusing and became frustrated and angry at your shortcomings. It was from Ms Britton that you received encouragement to improve your literacy, which was at a stage where you were prohibited from having a driver’s licence because you could not interpret road signs.
After leaving school at the age of 14, you went to work at the abattoir and you maintained that employment for a number of years. The only time that was interrupted was when it was necessary for you to render assistance and support to Ms Britton. It seems that you have a good work record.
For a time you smoked cannabis. At other times, you abused prescription painkillers and also consumed more alcohol than you should have. Your counsel has told me that during your relationship with Ms Britton the amount of alcohol you consumed reduced significantly.
The relationship you had with Ms Britton, which commenced when you were 19 years of age, gave your life some direction and, as I have already said, you and she had a child born on 13 December 2012.
Following this offence occurring on 10 December 2015, you have been in custody at Port Phillip Prison. You have been treated with anti-psychotic medication and I have been provided with certificates which identify a number of useful courses you have completed whilst in custody. That time has been lonely and isolated for you and visits are minimal.
Mental state
I have received two reports from Associate Professor Andrew Carroll, who is a forensic psychiatrist. In his opinion expressed in May 2016, you were suffering from a psychotic illness and in all likelihood schizophrenia. You also suffered a major depressive episode. In his later report in September 2016, he thought that your psychosis was likely to have been substance-induced after over-using dexamphetamine. He therefore concluded that a defence of mental impairment was not open for you to rely on.
Appropriately, your counsel did not rely on your mental state for the purpose of invoking the legal principles that may reduce your moral culpability for your conduct, as distinct from your legal responsibility. Under those principles denunciation, specific deterrence and general deterrence are made less relevant considerations. However your mental state, which is of long standing and has been difficult for you, is an important part of your personal circumstances and I take it into account in that context. I am also satisfied that your condition will mean that your sentence will weigh more heavily on you than it would on a person in normal health.
Associate Professor Carroll expressed the opinion in his earlier report that your prospects for rehabilitation are good because your views are what he described as ‘prosocial’ – you have a good work record and a limited criminal history. You also have a good insight into your mental condition and recognise the value of long term treatment. Family support would assist in your further rehabilitation. Provided you are treated, Associate Professor Carroll’s opinion was that the likelihood of re-offending is low.
Deportation
In February of this year, you received a letter from the Department of Immigration notifying you of an intention to cancel your visa. Since you could not read the letter, you did not respond to it and you have now been given a formal document indicating that your visa has been cancelled. Your counsel has submitted that your deportation to New Zealand is a certainty upon your release
I am satisfied that although there may be steps you could yet take to avoid deportation the risk of it remains, and that affects your time in custody as you ponder that prospect.
Conclusion
On your behalf, your counsel urged me to sentence to you to time already served and to then place you on a community corrections order. She submitted that the consequence of this episode has been disastrous for you because you have lost the woman you cared most about as well as access to your child. If you are deported you will be permanently separated from everyone you care for.
Whilst I accept that there are a number of factors which are relevant and which mitigate the circumstances of this offence it was, nonetheless, as the prosecutor has submitted, a serious offence with significant violence and your conduct is to be condemned. General and specific deterrence remain considerations of significance in the sentence to be imposed on you. Notwithstanding the mitigating circumstances of your offending, a sentence which effectively amounted to no more than the days you have already spent in pre-sentence detention would, in my opinion, not adequately recognise the seriousness of your conduct. It must be understood that if a choice is made to take far more than an appropriate amount of a particular substance even if legally prescribed and the result is some form of psychosis which results in significant harm to another person as it appears to have happened in your case, then those circumstances may not necessarily mitigate the offence you have committed. [1]
[1]See, for example, R v Martin [2007] VSCA 291.
Taking all of the matters into account, in my opinion the appropriate sentence is that you serve a period of three years’ imprisonment for the offence of recklessly endangering life. I will fix a period of eighteen months to be served before you are eligible to make an application for release on parole.
I declare that your pre-sentence detention is 324 days and I direct that that be entered in the records of the Court and reckoned as time already served.
Section 6AAA
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate if you had not pleaded guilty to this offence the sentence that I would have imposed on you would have been a period of four years’ imprisonment with a minimum period of two years and six months’ imprisonment before being eligible to apply for release on parole.
Forensic sample orders
Pursuant to s 464ZF of the Crimes Act 1958, I have made the forensic sample order sought by the Crown and not opposed on your behalf.
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