IN THE COUNTY COURT OF VICTORIA (Un) Revised (Not) Restricted (Not) Suitable for Publication AT MELBOURNE CRIMINAL JURISDICTION

CR 14-00262

DIRECTOR OF PUBLIC PROSECUTIONS v

DAMIEN POWER

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JUDGE: HIS HONOUR JUDGE MULLALY WHERE HELD: Melbourne DATE OF HEARING: DATE OF SENTENCE: 19 June 2014 CASE MAY BE CITED AS: DPP v Power MEDIUM NEUTRAL CITATION: [2014] VCC

REASONS FOR SENTENCE --- Subject: Catchwords: Legislation Cited: Cases Cited: Sentence: ---

APPEARANCES: Counsel Solicitors

For the Director of Public Mr R. Gibson Prosecutions

For the Offender Mr D. Wraith

VICTORIAN GOVERNMENT REPORTING SERVICE 565 Lonsdale Street, Melbourne - Telephone 9603 2401 HIS HONOUR:

1 Damien Power, on 18 August 2013 you went to work at one of your part-time jobs as a kitchen-hand at 63 Degrees Café in West Geelong. You were a 23 year old young man from a hardworking supportive family. You were without any prior criminal convictions. You had completed Year 12. You were employed and undergoing some part-time study. You were in a stable, caring relationship. Your friends and those that saw you grow up considered you were a quiet and gentle young man with a lot of potential. In so many ways you were a typical young man, maturing into an adult capable of contributing to your community.

2 The one unstable and illegal aspect of your life was your use of drugs. Like far too many in our community, you took up smoking cannabis as a teenager. While you had given that drug away by your twenties, you did not remain drug-free. You used ecstasy and magic mushrooms. However, what turned your otherwise unremarkable life into a disaster was your use of that scourge of a drug, methamphetamines, or as it is more widely known, ice,

3 And so it was after using ice sometime before 18 August 2013 you had a dramatic reaction. Your rationality and your grip on reality fell away. You became quite disturbed. While your disastrous reaction to ice has seen you imprisoned and your life turned on its head, it is Senior Sergeant David Reither who has suffered most acutely.

4 To fully understand the gravity of your offending on 18 August, and especially on 21 August 2013, I must return to the events that unfolded after you arrived at work at the café on the morning of 18 August 2013.

5 Shortly after arriving at work, you were seen with a large hunting knife, not a knife from the café, one, it seems, you had brought with you. You held the knife and ordered your work colleagues to get out of the kitchen. Your colleagues could not reason with you and, in fear, they went outside, ensuring

.TC:GD 2 SENTENCE DPP v Power customers were also out of the way. The police were called.

6 Two fine police officers, Constables Wilde and Duckworth, attended. Their efforts in containing the situation are deserving of commendation. You held a pocket knife towards them. They remained calm and professional. You were irrational, telling the police officers that you wanted them to shoot you, a scene that no doubt every police officer dreads. The police controlled the situation and were able to disarm you and restrain you until an ambulance arrived. You were taken immediately to the psychiatric ward of the Geelong Hospital. You were plainly in the grip of an acute mental illness. You were admitted as an in-patient in the Swanston Centre, where you remained under treatment for the next three days.

7 You were picked up from the hospital on the morning of 21 August 2013 by your girlfriend. Later in the afternoon the hospital staff rang you to check on you. You told them you were fine. You had in fact already told your girlfriend that you were feeling scared for no reason. These were early signs of what was to follow.

8 Arrangements had been made for you and your girlfriend to visit your mother in Batesford in the evening. Your girlfriend drove with you in the front passenger seat. As she drove along the Midland Highway, you pulled the handbrake on, causing the car to spin 180 degrees or thereabouts. It was only by a bare margin that there was no collision with the car behind. You believed some creature was in the car or you had to pull the brake on to somehow escape or deal with what was a frank psychotic imagination. You got out of the car, as did your girlfriend, but she could not reason with you. Passers-by stopped to render assistance. One of the passers-by was Senior Sergeant David Reither, who was in uniform and driving a marked police car. He was alone. He activated the police car's flashing lights and approached you and your girlfriend in order to sort the situation out. Your girlfriend explained that you had pulled on the handbrake. She also explained that you

.TC:GD 3 SENTENCE DPP v Power had just that day been released from the Swanston Centre. Again, showing calm professionalism, Senior Sergeant Reither assured you that he would get you the appropriate help. You were unresponsive. He asked your girlfriend to move her car from the roadway and he went to his car to call Tripe-O from his mobile phone to get appropriate assistance. As he was in the midst of this call, you approached him, and for no rational reason, you attacked him. He felt punches to his left rib and left torso area. However, these were not just punches, you had armed yourself with yet another knife and you stabbed Senior Sergeant Reither four times. When he realised that he was badly bleeding, he desperately sought immediate help. The call to Triple-O became chilling.

9 You remained in your drug-induced psychotic state, raised the knife to Senior Sergeant Reither, before then wandering off into the paddocks. Fortunately, a local doctor was passing and he, Dr John Dunning, gave important immediate emergency treatment to Senior Sergeant Reither.

10 Ultimately Senior Sergeant Reither was airlifted to Melbourne to undergo emergency surgery. The four stab wounds caused an undisplaced fracture to the rib in the area of the heart, but more seriously, there was a cut to the diaphragm and spleen area, causing arterial and thus massive internal bleeding. This bleeding was not easy to detect and it was in hospital that Senior Sergeant Reither's condition deteriorated. The amount of blood in his chest cavity caused his left lung to collapse. The initial treatment did not stabilise things, and Senior Sergeant Reither's significant internal bleeding required lengthy surgery. Senior Sergeant Reither's health was perilous, but thankfully, after a period in the intensive care unit and in the medical wards as an in-patient, he was released from hospital on 28 August 2013. He has slowly recovered physically. The psychological trauma has been much slower in abating.

11 While Senior Sergeant Reither was being airlifted to Melbourne, you were

.TC:GD 4 SENTENCE DPP v Power found in the paddocks and arrest. You were not fit for interview. Ultimately you were remanded in custody, where you have remained to date.

12 The Sentencing Act of this State requires, in effect, that I assess the seriousness or gravity of your offending and also assess your moral culpability.

13 As to your moral culpability, that is quite a complex matter given the undisputed fact that at the time of committing these crimes you were in the midst of a frank but drug-induced psychosis.

14 As to the gravity of what you did, I will remain focused on the charge of intentionally causing serious injury.

15 Stabbing a police officer who was simply doing his duty of sorting out the problems you had caused on the Midland Highway only has to be said for its seriousness to be easily appreciated. Police officers do a hard and often dangerous job. It is because they take on difficult situations that the community is protected, crimes are solved, violent individuals brought to justice. I could go on listing all the hard and important aspects of police work, but the ultimate point is easily understood. The law will vigilantly respect and protect the safety of vulnerable police officers who daily face risky circumstances. If they are set upon and injured, the response of the courts will ordinarily be very stern.

16 On any measure, your stabbing of Senior Sergeant Reither was a grave example of the crime of intentionally causing serious injury.

17 While the cause of that crime, and indeed, the earlier incident at the café and the endangerment of your girlfriend, was the significant but temporary collapse into serious mental illness. I need, though, to make clear this is not just another of the all too sad examples of a person with serious mental illness acting in a disturbed way. To look only at that would fail to address the

.TC:GD 5 SENTENCE DPP v Power dreadful impact of ice on our community. This case is yet another example in the growing array of cases coming before the courts where an otherwise law- abiding young person displays violence so out of proportion and so out of character as to truly shock those that know the offender and, indeed, to shock the offender once they come to their senses. This is an extreme example of that phenomena given your limited use of ice. However, the message must be understood that using ice in any measure is extremely dangerous. The message, in particular from the courts, must be that those that act violently under the influence of ice must expect serious consequences, usually involving long sentences of imprisonment.

18 An aspect of the assessment of the gravity of the offence is the impact on the victim of your crimes. The Sentencing Act also requires that I consider the impact on the victim, Senior Sergeant Reither.

19 Senior Sergeant Reither eloquently set out the difficulties he has faced. I commence with what he says about his feelings at the scene.

"Whilst awaiting medical treatment at the scene, I rang my wife. I did this because I knew the serious nature of my injuries. I wanted to let her know of the incident from me instead of second-hand and to talk to her for reassurance and support. I guess at this stage I did not know whether I'd make it home. This phone call is every police member and partner's nightmare."

20 He goes on to describe:

"As police, we go to work every day to help the public. Members' partners obviously worry about the nature of the duties performed and hope their loved ones stay safe. I am glad I made the phone call and got to speak with her."

21 He goes on to say that he was concerned that the injuries could easily have ended his life, widowed his wife and orphaned his son. It makes me very sad that this could have been the case in this matter.

22 He describes the pain and anxiety he felt in the hospital, which was a growing matter. The initial treatment, where he had the support of his family, took

.TC:GD 6 SENTENCE DPP v Power some time before they left and then things deteriorated and he went into emergency surgery because of the internal bleeding that he had. He suffered significant pain as a consequence, and there is ongoing nerve and scar tissue problems that he has had to endure for some time. His prognosis is that he will not physically be recovered for between one and two years, and it affects his general wellbeing. He wants to be symptom free. He says:

"Emotionally the biggest impact were the days in hospital just after the incident and the feelings of mortality for months after."

23 He describes the injuries and how he became so unwell. The feelings of vulnerability continued for many months afterwards. He goes on to indicate that physically he has recovered. The time away from his chosen sports and hobbies has been a concern to him, but he is now able to return to his cycling.

24 He has, of course, now returned to work. His work prospects he describes as good, but knife crime, as he said, is particularly prevalent, both in his working life and what he sees in the media, and he finds himself much more vigilant and anxious than he would be otherwise, both in his professional and private life.

25 Senior Sergeant Reither has served our community for 26 years as a police officer. Having been stabbed and suffered, as I have outlined, he is now back on duty again serving the people of this State. He is plainly a brave man and a dedicated police officer. He is to be commended.

26 While it is appropriate that I emphasise the seriousness of your stabbing of Senior Sergeant Reither, I do not overlook that pulling the handbrake on a car being driven at speed down a major highway just outside Geelong is an extremely dangerous thing to do. Your girlfriend was put at risk of serious injury, which fortunately was avoided.

27 Your assault of the police officers by the frightening display of the knife at the café, while urging them to shoot you, is also a serious crime, though it is noted

.TC:GD 7 SENTENCE DPP v Power that the police controlled the incident.

28 I have deferred the requirement that I assess your moral culpability to this point. As mentioned, this is all the more complex because your significant impaired mental functioning at the time was a drug-induced psychosis. At the end of the day the prosecution and the defence are in agreement that your moral culpability for the crimes is to be seen as lower because of your drug- induced psychosis. It is not a matter, as it is in some cases, of struggling to find some causal connection between an impaired mental functioning and crimes. This is a plainly a case where your impaired mental functioning is the sole reason for your crimes.

29 While ordinarily the moral culpability in the circumstances of how you offended would be very high and thus the weight to be given to denunciation and punishment would be significant, here, because you were in a psychotic state but not in circumstances to allow a legal defence to you, but nonetheless your moral culpability must be seen as significantly lower. Thus I have in the synthesis significantly moderated the weight to be given to denunciation. I have taken into account in the other direction that you have had a problem with drugs in the past and aspects of mental frailty as a consequence, but nonetheless you chose to try ice with the dire circumstances that followed.

30 Ordinarily, in a case such as this, a prominent matter would be deterrence to others. However, given that you were significantly impaired, I consider that you are not precisely the right one to use as an example to others. I will moderate the impact of general deterrence, but given its importance, it nonetheless remains a matter of some consequence in the overall synthesis.

31 Deterrence to you is not such an important factor in this case given your past unblemished history and your return to mental stability now you are drug-free.

32 Given you are now mentally stable, the impact of your impaired mental functioning on any further time that you spend in prison is not a factor of

.TC:GD 8 SENTENCE DPP v Power importance. Indeed, you have, to your credit, done all you could in prison to commence rehabilitating.

33 I consider that given your limited use of ice and your understanding now of its dreadful effect, there is no added need to emphasise protection of the community from you by reason of your impaired mental functioning. It is unlikely that your impaired mental functioning that you suffered at the time will be enduring.

34 The mitigatory aspects of your impaired mental functioning are not the only matters raised in mitigation. You pleaded guilty, and did so after proper investigation into whether you had a viable defence of mental impairment. At no point did you avoid responsibility for causing the serious injury to Senior Sergeant Reither or any of the other crimes. It was rather whether you were guilty of the crimes or not guilty by reason of mental impairment. Thus, your plea is a valuable one. It relieved all witnesses, but especially Senior Sergeant Reither, from the trauma of reliving these events in giving evidence in a trial.

35 The plea is evidence of remorse but is not the only evidence of remorse. You have expressed profound remorse to your family, to the expert, Dr Walton, who assessed you. Importantly, you have expressed remorse in genuine letters of apology to Senior Sergeant Reither and the police officers, Constables Wilde and Duckworth.

36 Your reaction to what you had done once you had recovered your mental health is in line with the characteristics seen by those friends, work colleagues, family friends and your family over the years that you grew up and matured. I have read all the letters tendered and taken them and the oral evidence in the plea of your mother into account. Likewise, I have considered all the matters in Dr Walton's helpful report as well as the report of the mental health assessor at the Geelong court.

.TC:GD 9 SENTENCE DPP v Power 37 Your unblemished good character up until these crimes entitles you to ask for a merciful sentence. It also allows me to have confidence that you can completely reform.

38 Given you are a young offender and a first time offender, I must give prominent consideration to facilitating your rehabilitation. However, because of the gravity of what you did on 21 August 2013, the other matters already mentioned of denunciation and deterrence do not become completely subservient to the need to promote your rehabilitation, but in your case complete rehabilitation of you remains an important goal.

39 Given your ongoing family support, and I include in that the important support of your girlfriend, and given that absent drug use you are likely to remain mentally stable and crime-free, I consider that your prospects of rehabilitation are strong.

40 But, Mr Power, me saying that now will mean nothing if you do not hold to your expressed resolve not to use drugs again. If that is your way in the future, it is my view that you are unlikely to be back before the courts. If you resume drug-taking, you will, I am sure, find yourself in trouble.

41 A sentence of imprisonment is always a grave thing, especially where the offender is young. However, in all the circumstances, gaol is the only penalty that is just and appropriate to all the circumstances of these offences.

42 To properly reflect the gravity of your offending, especially the stabbing of a police officer, ordinarily a very lengthy term of imprisonment would be imposed, but there are aspects of this case that make it out-of-the-ordinary.

43 On any view, there are a substantial catalogue of mitigatory matters. As was said by Justice Ashley of our Court of Appeal in respect of another type of serious offence, the mitigatory matters cannot be given mere lip service because the crime is so serious. Put another way, I must ensure the

.TC:GD 10 SENTENCE DPP v Power mitigatory matters have the consequence of a more lenient sentence than would be the case if the mitigatory factors were not present or as weighty as they are here. Importantly, I cannot just state but not give practical effect to the fact that these crimes were committed while you were psychotic and thus very unwell, and now you are mentally well and likely to stay that way if you avoid drug use.

44 I have reflected and given anxious consideration to whether, in all the circumstances of your case, there is good reason to establish at least a potential for a significant period of conditional release on parole. I think you will need to be carefully monitored on your release. Most, if not all, who spend time in prison are never quite the same afterwards. You have good supports, but I think to ensure there is no relapse into drug use, you and the community would be best served if you are assisted by the professional parole officers on your release. Of course, whether you are granted parole and, if so, when is for others, not me.

45 Your offending was in two bursts, but it was as a consequence of your singular drug-induced mental collapse. So while I need to reflect the gravity and impact of each of your crimes, I have kept in mind that your sentence should meet the totality of what you did, no more and no less.

46 Will you please stand, Mr Power.

47 Doing the best I can, I make the following orders, which involve sentences of imprisonment:

48 On Charges 1 and 2, I impose an aggregate term of imprisonment of two months.

49 On Charge 3, the reckless conduct endangering person, I sentence you to one year imprisonment.

50 On Charge 4, intentionally causing serious injury, I sentence you to four years

.TC:GD 11 SENTENCE DPP v Power and three months' imprisonment.

51 One month of the sentence on the aggregate term for Charges 1 and 2 and four months on Charge 3 are to be cumulative upon each other and upon Charge 4. That gives a total sentence of four years and eight months, and I order that you serve a minimum of two years before being eligible for parole.

52 You already have been in gaol for 301 days. I declare that period of time of 301 days is to be reckoned as part of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 301 days of the sentence that I have imposed.

53 Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of six years with a minimum term of four years.

54 Are there other consequential orders that I need to deal with, Mr Gibson?

55 MR GIBSON: The disposal and a 464, Your Honour.

56 HIS HONOUR: Thank you. There are orders sought by the prosecution relating to the disposal of knives, and I intend to make that order.

57 There is a further order that you undergo a forensic sample, a scraping of your mouth, so that DNA ultimately, your DNA can be extracted and put on a database. I intend to grant that application, and the reasons for doing that are the seriousness of the crime and the granting of the order is in the public interest.

58 You need to understand, Mr Power, at the time that the authorities come to get the sample from you, if you do not co-operate, then they are authorised to use reasonable force to enable the procedure to extract the DNA. The way through it, of course, is just to simply co-operate.

.TC:GD 12 SENTENCE DPP v Power 59 Is there anything further required?

60 MR GIBSON: No, Your Honour.

61 MR WRAITH: As Your Honour pleases.

62 HIS HONOUR: Do the cumulation matters add up, Mr Wraith?

63 MR GIBSON: Yes, they do, Your Honour.

64 HIS HONOUR: Thank you. You may be seated, Mr Power.

65 OFFENDER: Thank you, Your Honour.

66 HIS HONOUR: Those orders are signed.

67 MR GIBSON: If Your Honour pleases.

68 HIS HONOUR: Mr Power, the court is not set up or the place for you to now engage or spend any time with those that might be here for you. I cannot allow that to happen, for obvious reasons relating to perhaps others, not you, that there might be trouble, so you must go with the prison guard now and I will move to other matters.

69 OFFENDER: Thank you, Your Honour.

70 HIS HONOUR: For anyone who might be interested, I will endeavour to ensure that the reasons for sentence are available as soon as possible, hopefully at some point today.

71 MR GIBSON: If Your Honour pleases.

72 HIS HONOUR: But they are not available in any typed form or any legible form at this point.

73 MR GIBSON: Yes, Your Honour.

74 HIS HONOUR: I intend to remain on the Bench to discuss the matters with

.TC:GD 13 SENTENCE DPP v Power other lawyers involved in other cases, so feel free to leave the Bar table. I thank counsel for their considerable assistance in this matter.

75 MR WRAITH: As Your Honour pleases.

.TC:GD 14 SENTENCE DPP v Power