DPP v White [2014] VCC 1919 (16 October 2014)

Last Updated: 4 December 2014

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-13-01168

DIRECTOR OF PUBLIC PROSECUTIONS
v
LEE WHITE

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2014
DATE OF SENTENCE:	16 October 2014
CASE MAY BE CITED AS:	DPP v White
MEDIUM NEUTRAL CITATION:	[2014] VCC 1919

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J. McWilliams	OPP
For the Accused	Mr. J. Loftus	VLA

HER HONOUR:

1. Lee white, you have pleaded guilty to one charge of assault. The offending the subject of this charge occurred on 22 December 2012. You were remanded in custody on that day after the assault, and you remained on remand for the next 579 days. For almost this entire time, one year and seven months, you were held on remand at the Thomas Embling Hospital as an involuntary patient.
2. Dr Kevin Ong, a Forensic Psychiatrist, provided a report dated 28 March 2013. In it, he referred to your long and well established history of mental illness, namely paranoid schizophrenia. He concluded that you were not fit to stand trial at the time of that report, and said that you would require a further 3 to 6 months of active treatment to make you fit for court. Approximately six months later, on 6 December 2013, Dr Ong provided another report, again concluding that you were unfit to stand trial at that time, but expressing the hope that if you were able to continue on your medication, that there would be ongoing improvement so that you would be fit to stand trial within six months.
3. On 20 June, 2013, that is, between the first and second reports provided by Dr Ong, there was a contested committal which was heard in the Melbourne Magistrates Court. You were committed to stand trial in this court, and on 23 January 2014, you were found by a jury to be not fit to stand trial. You still were not well enough.
4. Dr Ong has now provided a third report, dated 4 July 2014, and by that stage, he concluded that you were fit to stand trial. He also said in that report, as he had in the two previous reports that he had written, that given that you had consistently said you could not recall the incident that gives rise to the charge, and given the external evidence in relation to your impairment by alcohol and possibly prescription drugs inappropriately used at the time, that you did not have a defence of mental impairment open to you.
5. Very shortly after Dr Ong certified that you were fit to stand trial and again confirmed that you did not have a defence of mental impairment open to you, and, after consultation with your legal advisors, you offered to plead guilty to this charge of common assault. That offer was accepted by the prosecution. You were very shortly after that arraigned, and followed through that offer, entering a formal plea of guilty to the charge and this plea date was fixed.
6. Meanwhile, you were released on bail from Thomas Embling and have been held at a Community Care Unit under the control of Peninsula Mental Health Area Authority. You have continued to make progress in the treatment of your mental health and have not been seen to be a risk to yourself or others, so requiring you to be moved into a more secure facility than that Community Care Unit. So, you came before me yesterday for the plea hearing in respect of that plea for that charge of common assault in respect of the incident.
7. Let me then turn to the incident itself. At about 11 in the morning on 22 December, 2012, you got onto a tram on the corner of Toorak and Glenferrie Roads. You began asking other people on the tram – the driver, as well as other passengers – for a cigarette and a cigarette lighter. Passengers were refusing to give you a cigarette or a lighter. You became very verbally aggressive and abusive and the tram driver asked you to get off the tram, and in fact, escorted you off the tram.
8. You wandered across the road in a manner that indicated you were not really aware of the traffic around you, and approached an elderly woman, an 86 year old woman, who was waiting at the tram stop on the other side of the road. You asked her too for a cigarette and a lighter and when she told you that she did not smoke and had no cigarettes, you became very angry and aggressive, and pushed her on her side. She fell over and while she was on the ground you punched her a number of times to the upper body.
9. The fall was a serious one for her. She sustained a shattered hip. There were several breaks to the upper left thigh bone right up at the area of the hip, and she received bruises and abrasions to her legs from the fall and to her upper body from where you were punching her. This was, clearly, a totally unprovoked attack on a randomly chosen victim, and a vulnerable one by reason of her age. You simply left her on the ground after you had finished punching, and walked away. Police arrived soon afterwards, and you were arrested. You, at that stage, were interviewed and denied the offending and were remanded in custody, but very soon after that remand, the extent of your mental illness and its untreated nature became apparent, and you were transferred to Thomas Embling.
10. Your victim, Norma Bladen, was taken to hospital. She required surgery to fix the broken bones, spent one week in hospital for the surgery, some time in a rehabilitation centre after that, followed by a period in respite care. She was then able to return to her home. She, at 86, was living alone and independently. She was obviously proud of her independence and was in a good condition mentally and physically. In fact, at the time that you assaulted her, she was waiting to catch the tram to come into the city to play bridge at the RACV Club, something she did regularly. That shows how mentally fit she had remained and how physically fit she was.
11. Her victim impact statement was read aloud in court yesterday, and I watched you listen to it. It is clear that it had a significant effect on her, not only the physical consequences of the fall, the needing surgery, the not being able to go home for some time. By the time she wrote the victim impact statement she was still not able to walk without support. She used a walking frame and was hoping that she might be able to progress to the use of a walking stick, but she had clearly lost confidence in her balance and mobility. All sorts of standing and sitting and leaning aids had to be fitted into her home as a result, so she needed hand rails and bars to help her get around. She was unsteady and afraid that she would fall over again, and unable to do the things that she had been able to do on her own, and which she obviously had taken pride in still, at her age, being able to do; making her bed, cleaning her unit, looking after herself, going shopping.
12. In addition to that, she felt unsafe. She felt unsafe in hospital and frightened. She felt unsafe at home. She felt unsafe in the street. Her sense of independence and safety was severely impacted by your behaviour, and no doubt, all the more so because she understood that she was simply a random victim of an unprovoked act of violence from somebody who was mentally unwell.
13. The sentencing considerations that apply to you therefore, are complex. Normally, an assault of this nature on a victim of his nature would call for a term of imprisonment, and a substantial term of imprisonment, but because of the long-standing history of schizophrenia and the fact that you were untreated and had been un-medicated for some time before the offending, your circumstances are very different. You were only 19 when you were first diagnosed with schizophrenia and between then and the time of this offending, you have had 20 separate periods of involuntary inpatient care. You have been on a number of Community Treatment Orders over the years. You had responded well to your medication during periods of involuntary treatment, and have for periods after your discharge from involuntary treatment, when you have been seen to have stabilised, also managed quite well in the community, but one of the sad features of an illness such as yours, is that whilst you are well, you think you do not need the medication and like many people, you do not like the sedating effects that the medication has on you. So, like many people in your circumstances, without adequate supervision, you will stop taking your medication and that had happened to you on many occasion. When you stop taking your medication, you become rapidly unwell, and as you become unwell, you lose the insight into your mental illness and the understanding of the fact that you are not well, and that creates a worse and worse cycle. That is indeed what happened on this occasion. It is compounded for you by the fact that one of the ways you treat your mental illness is to abuse alcohol and other drugs and you appeared to be substance impaired at that time. When you are well, you understand that alcohol and drugs are not good for you and make your mental condition worse, but when you are not well, you tend to turn to them as means of helping you cope with your mental illness and to quell the distress that you feel from suffering from it.
14. Although you do not have a defence of mental impairment open to you, it is clear that the sentencing factors that normally would carry weight in an offence such as this, must be significantly moderated. Whilst there must be some weight given to your moral culpability, the weight to be given to it must be significantly reduced. The weight to be given to deterrence both general and specific, must be significantly reduced, because of your mental illness, the effect of it on you, and the unfairness of making you an example to other people because of the connection between your mental illness, your history of offending and this particular offence. I accept also, the evidence that imprisonment would be much harder for you than for somebody without your mental illness, and the fact that you have spent your whole time in custody in Thomas Embling, indicates that very powerfully.
15. Balanced against those matters that significantly reduce the sentence that would otherwise be appropriate, is the fact that because you do have a long-standing history of mental illness; one that, whilst you are treated, you can manage, but one which, when it is not treated, as it often is not, makes you a danger to yourself and others. That means that I must also give weight to protection of the community, so whilst the punitive part of the sentence is reduced, I must also ensure that the sentence properly balances the need to protect the community.
16. You are currently on a Community Treatment Order under the Mental Health Act, and of course under that, the mental health authorities, the psychiatrists in charge of your care, need to consider whether you are at risk of harm to yourself or others, but there is a need in this sentencing order, to ensure that the sentencing needs of protection of the community are also properly addressed, and that is why I have decided that the appropriate sentence is a combination of a term of imprisonment, but taken up by some of the time you have already spent in Thomas Embling, and by a Community Corrections Order which carries with it, only these components, a condition that you undergo assessment and treatment for drug abuse or dependency, a condition that you undergo assessment and treatment for alcohol abuse or dependency, and a condition that you undergo a mental health assessment and treatment as directed by the Regional Manager of the Community Corrections.
17. It is my expectation that these conditions are much the same as the conditions that already apply to you under the Community Treatment Order and therefore, that I am not duplicating any obligations or requirements on you. But it is the sentencing part, the reflecting of the criminal nature of the activity, rather than the mental health parts, reflecting the broader obligation to make sure you are not at risk of harm to yourself or others.
18. It also means that in the event that the psychiatrist in charge of your care considers that you are well enough to be discharged from your Community Treatment Order, that there is still a means of protection of the community available, under the Community Correction Order that I am about to make, so that if you do become unwell, there is a means of getting you back into the mental health system quickly, before you do anything that is going to be a risk of harming yourself or others. So, that is what I am going to do, and the reasons for it. Can you now please stand, while I formally pass sentence on you.
19. Lee White, on the charge of common law assault to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of 12 months and, then to serve a Community Correction Order for a period of two years. I declare that the time that you have spent in custody, namely 579 days, be reckoned as a period of imprisonment already served under this sentence, and which is to be deducted administratively. So far as the Community Correction Order is concerned, that is for a period of two years and it commences upon completion of your term of imprisonment, which means it commences today.
20. There are mandatory terms that apply to all Community Correction Orders, and they are these:

First, that you must not commit another offence for which you could be imprisoned during the time that this order is in force. Now, that is anything from shoplifting through to threatening people or assaulting people.

Second, you must comply with any obligation or requirement proscribed by Regulation 17 of the Sentencing Regulations. That means that if and when you are required to visit the Frankston Community Corrections Office, that you must not be impaired by illicit drugs or alcohol, and you must submit to testing for drugs or alcohol if they ask you to do so.

Third, you must report to, and receive visits from the Secretary or the Delegate.

Next, you must report to the Community Correction Centre at Frankston. That is at Ground Floor, 431 Nepean Highway, within two clear working days after the commencement of this order. Today is Wednesday, that means you must report there by Friday of this week, and I hope that arrangements can be made for you to go there and report on your way home today, so that that is done, out of the way and then you can go back to the CCU and continue your life there.

21. You must let a Community Corrections officer know within two clear working days if you change your address, so if you move to a different CCU or a different place, you must let Community Corrections know, or if you get a job, or if you get a job and then change your job you must let them know. You are probably not well enough to work at the moment, but I know that at CCU's they do try and get people into some sort of work if they are well enough, and so that is something that you need to let Corrections know when it happens.
22. You must not leave Victoria without first getting permission to do so from the Secretary or Delegate. Again, my understanding is while you are under the CTO, you would have to get permission from the psychiatrist in charge of your care to leave the State, so it will just be another administrative step as part of that.
23. You must obey all lawful instructions from, and the directions of the Secretary or Delegate.
24. They are the mandatory terms that apply to all Community Correction Orders. In addition to that, I am making these special conditions:

That you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.

You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the Regional Manager.

You must undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuro-psychological and psychiatric, in a hospital or residential facility as directed by the Regional Manager.

25. As I have said, all of those are designed to run in parallel with things that are already happening under your CTO, so I expect that there will be communication between the people responsible for you at the CCU, to show them what has already been done in relation to the dual diagnosis or those who you are working with in relation to drugs and alcohol, and also that the information about your mental health assessment and treatment will be provided to Corrections, so that you will not have to undergo any additional assessments, and I see that the nurse is with you here and taking notes of this, and nodding about and no doubt, has already had experience of working with Corrections in respect of that.
26. So, I need you, Mr White, to acknowledge that you understand the effect and the conditions of this order.
27. OFFENDER: Yes, I do, Your Honour.
28. HER HONOUR: Good, and I cannot make it unless you consent to it being made. Do you consent?
29. OFFENDER: What was that?
30. HER HONOUR: I cannot make it unless you agree to my making it. Do you agree to me making this order.
31. OFFENDER: Yes.,
32. HER HONOUR: All right. I have a copy of the order here and I will ask Mr Loftus to take it down to you, and for you to sign it, once he has checked it to make sure it reflects what I have just said.
33. I must also make a declaration pursuant to s.6AAA of the Sentencing Act and that is in respect of a sentence that I would have imposed if you had pleaded not guilty and been found guilty by a jury. If that had happened, I would have sentenced you to a term of imprisonment of two years, and I would have placed you on a Community Corrections Order at the end of that, for four years, but I understand that this sentence is 12 months imprisonment, already served, and a two year Community Correction Order with those conditions. Do you follow all of that.
34. OFFENDER: Yes.
35. HER HONOUR: All right. Once a copy of the Community Corrections Order has been made and provided to you, you will be free to leave. I hope that you continue improving in your mental health. I am pleased to see the progress that you have made to date, and I hope that the combination of the CTO and the Community Correction Order will assist you to get you into a more stable way of living, so that you will be able to move back into more independent and safe living in the community, and that you can put this sorry episode behind you, and look forward to a better and more cared-for future. So do look after yourself. We do not want to see you back before the court.
36. OFFENDER: Thank you very much.
37. HER HONOUR: Thank you. You can take a seat there. Thank you Mr Loftus and thank you Mr McWilliams, and I must say, Mr McWilliams it has been a pleasure having you here this time. I hope it has been a less scary experience for you.
38. MR McWILLIAMS: Well, yes. I still get PSD flashbacks. I'm sorry, PTSD.
39. HER HONOUR: Yes, indeed. Well, it is good to see that you have made a recovery.
40. MR McWILLIAMS: If I hear certain names around the place, I break out in a cold sweat.
41. HER HONOUR: I hope my name is no longer included in them.
42. MR McWILLIAMS: No, no, no. Certainly not. It was a particular image.
43. HER HONOUR: We have all got to learn to manage ourselves and I think we have all learnt from it. All right. Thank you.
44. MR McWILLIAMS: Yes. Thank Your Honour.

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