This story has received much news coverage. I won’t reference every news story, and many of them repeat the same text, so this one can be relied on as an example of the sort of coverage involved: Jacqueline Le, Vic ambo appalled as attackers spared jail, The Courier (Online) 15 May 21.
The gist of the story is that on 31 March 2016 two women, Amanda Warren and Caris Underwood assaulted Victorian paramedic Paul Judd. As a result of his injuries Mr Judd needed surgery and has been unable to return to work. The defendants entered pleas of guilty and were sentenced by a magistrate to 6 months and 4 months gaol, respectively. On 15May 2018, 2 years after the offence, Her Honour Judge Cotterell in the Victorian County Court upheld appeals and substituted sentences of community corrections orders, that is restrictions on their liberty but not the equivalent of a full time period of incarceration.
The paramedic and broader community were outraged by the result. Mr Judd’s feelings may represent the community view. He is quoted as saying ‘”I just feel that justice hasn’t been done.” One reason people may feel that justice wasn’t done is that paramedics had been promised that there was a mandatory gaol term for people convicted of this sort of offence. As one correspondent asked ‘How does a judge over turn what I understand to be a “mandatory sentence”?’ The answer is that there was no mandatory sentence.
The offence and the sentencing options
The relevant offence is provided for in section 18 of the Crimes Act 1958 (Vic). That section says
A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.
Section 10AA(4) of the Sentencing Act 1991 (Vic) says (emphasis added):
In sentencing an offender (whether on appeal or otherwise) for an offence against section 18 of the Crimes Act 1958 committed against an emergency worker on duty, … a court must impose a term of imprisonment of not less than 6 months unless the court finds under section 10A that a special reason exists.
That a sentence of 6 months is mandatory is only a half-truth; it’s not true if the court finds ‘under section 10A that a special reason exists’. Section 10A says:
Special reasons relevant to imposing minimum non-parole periods
(1) In this section—
“impaired mental functioning” means—
(a) a mental illness within the meaning of the Mental Health Act 1986 ; or
(b) an intellectual disability within the meaning of the Disability Act 2006; or
(c) an acquired brain injury; or
(d) an autism spectrum disorder; or
(e) a neurological impairment, including but not limited to dementia.
(2) For the purposes of section … 10AA … a court may make a finding that a special reason exists if—
(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
(b) the offender—
(i) is of or over the age of 18 years but under 21 years at the time of the commission of the offence; and
(ii) proves on the balance of probabilities that he or she has a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age; or
(c) the offender proves on the balance of probabilities that—
(i) at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or
(ii) he or she has impaired mental functioning that would result in the offender being subject to significantly more than the ordinary burden or risks of imprisonment; or
(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or
(e) there are substantial and compelling circumstances that justify doing so.
(2A) Without limiting subsection (2), in the case of an offence against section 18 of the Crimes Act 1958 committed by a young offender against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, a court may make a finding that a special reason exists if-
(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
(3) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to— …
(ab) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10AA(4); and…
(c) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.
(4) If a court makes a finding under subsection (2), it must—
(a) state in writing the special reason; and
(b) cause that reason to be entered in the records of the court.
(5) The failure of a court to comply with subsection (4) does not invalidate any order made by it.
Where s 10A applies, the mandatory minimum does not apply, and the judge has full sentencing discretion. For a judge there are many options beside full time custody. Upon finding an offence proved, a judge may (Sentencing Act 1991 (Vic) s 7):
(a) record a conviction and order that the offender serve a term of imprisonment; or
(aab) subject to Part 5, record a conviction and order that the offender be detained and treated in a designated mental health service as a security patient (Court Secure Treatment Order); or
(ac) record a conviction and make a drug treatment order in respect of the offender; or
(c) in the case of a young offender, record a conviction and order that the young offender be detained in a youth justice centre; or
(da) in the case of a young offender, record a conviction and order that the young offender be detained in a youth residential centre; or
(e) with or without recording a conviction, make a community correction order in respect of the offender; or
(f) with or without recording a conviction, order the offender to pay a fine; or
(g) record a conviction and order the release of the offender on the adjournment of the hearing on conditions; or
(h) record a conviction and order the discharge of the offender; or
(i) without recording a conviction, order the release of the offender on the adjournment of the hearing on conditions; or
(j) without recording a conviction, order the dismissal of the charge for the offence; or
(k) impose any other sentence or make any order that is authorised by this or any other Act.
DPP v Warren and Underwood [2018] VCC 689
The reasons for Her Honour’s decision are reported as DPP v Warren and Underwood [2018] VCC 689.
With respect to the defendant Warren, the judge (at [5]) had before her:
… a plethora of material relating to the difficulties she has faced in her life… In brief, she was brought up in a dysfunctional family, which included sexual abuse and violence. She was a ward of the State from the age of 14 and was, during the time that she was living in the care of the Department, raped by two other inmates at the age of 15.
Her Honour traced other aspects of Ms Warren’s life before concluding that special reasons as defined in s 10A did exist. The special reasons were ([31]-[33]):
- Her impaired mental functioning, which is causally linked to the commission of the offence, substantially reduces her culpability (s 10A(2)(c)(1));
- That her impaired mental functioning would result in [her] being subject to significantly more of a burden in undergoing a term of imprisonment than would people not suffering from the same burdens (s 10A(2)(c)(2)); and
- That there were substantial and compelling reasons relating to her family situation and her appalling experiences during childhood and adolescence (s 10A(e)).
With respect to Ms Underwood there were also special circumstances ([19]-[23]):
- At the time of the offending Ms Underwood was aged over 18 but under 21 and ‘based on the evidence [it was established] …on the balance of probabilities that she has a particular psychosocial immaturity, which has resulted in substantially diminished ability to regulate her behaviour in comparison with the norm for persons of her age’ (s 10A(2)(b)).
- She is a young offender with reasonable prospects of rehabilitation (s 10A(2A)(a):
- She is particularly impressionable, immature, unlikely to be subjected to undesirable influences in an adult prison (s 10A(2A)(b);
- And ‘there are substantial compelling circumstances that justify not imposing the mandatory gaol term, and they are the ones that I led out in relation to her life, from her childhood to the present day’ (s 10A(e)).
Finding that special circumstances, as defined in s 10A did apply, it followed that the minimum mandatory term of 6 months did not apply, and Her Honour was able to exercise the entire range of sentencing options.
Ms Warren
The offence occurred on 31 March 2016. On 1 April Ms Warren attended the police station where she was charged and refused bail. On 4 April her four children were removed into the care of the State and whilst she was allowed some contact, she was not allowed physical access to her children. She was released on bail on 14 April under a Court Integrated Services Program (CISP). Whilst on bail (at [8]) ‘she had extensive drug and alcohol treatment, psychiatric counselling, grief counselling and other courses, including anger management. Following her CISP involvement, she continued treatment and was recommended supports’. Her children were returned to her care on 1 August, subject to conditions Further (at [9]-[12]):
… Ms Warren referred herself to North Eastern Recovery, she was then under the Family Drug Treatment Court Program and she has continued the urine screens twice a week and attending progress hearings in court.
On 18 May 2018, Ms Warren, I understand, will commence a day rehabilitation program through the … and she is heavily supervised. The children were returned to their mother under a family preservation order and she has been subject to the conditions of that order, including she must not drink alcohol, or use drugs.
It is clear that Ms Warren has made an enormous effort to control her mental disorder and to be a good parent to her children.
She has taken very big steps to rehabilitate herself, despite the terrible start she has had in life, and as now with some difficulty has her drinking and drug use under control, and she has the children with her, heavily supervised under court orders.
Ms Underwood
Her Honour took into account ([25]-[30]) that:
- … at the time of committing this offence, Ms Underwood as on the verge of recovering custody of her first child from the Department, and on being charged with this offending, she lost the opportunity to regain custody of that child.
- … there has been no further offending since this offence.
- … she has not used ice for over three years, and none of the people working with her have any concerns about her drug or alcohol consumption at this time.
- she’s also undergoing involvement with the Department in relation to domestic violence, and the Department report that as a mother she cannot be faulted.
- she does not consume alcohol or drugs at all.
- She has revealed remorse and shame for her behaviour, and perhaps for the first time has a positive prosocial environment.
Both defendants entered a plea of guilty at the first opportunity. There were procedural issues between the Crown and the defence that may have delayed proceedings, but the accused had never tried to deny their guilt.
The offence
Her honour acknowledged the seriousness of the offence and the impact upon the victim. She said (at [38]):
I take all of those matters into account but, as I have indicated, the actual sentencing, what I have to have regard to in sentencing in relation to these two appellants are matters which go beyond the effects on the victims of the assault.
She also said ([39]-[40]:
In sentencing, I am required to take into account specific deterrence and I find that in relation to these two appellants, specific deterrence has probably already been effected, given that they both spent a period of time imprisoned, lost their children and have taken extraordinary efforts to rehabilitate themselves.
In relation to general deterrence, I find that in the circumstances of these two appellants, in relation to each of them, they are not suitable vehicles for general deterrence. General deterrence relates to the hope that people in the community are deterred by the sentence which is imposed from committing offences and that is indeed what Parliament has sought to do by imposing higher sentences. But I find that they are not suitable vehicles for general deterrence.
The sentence
Judge Cotterell upheld the appeals and substituted the following sentences:
Ms Warren was sentenced to 14 days imprisonment (which had already been served when bail was refused), and release on a community corrections order for three years. She was also ordered to complete 150 hours of community work. As part of that order Ms Warren is required to ‘undergo assessment and treatment, including for drug abuse and dependency as directed’. She is required to ‘undergo assessment and treatment, including testing in relation to alcohol abuse or dependency as directed by the regional manager’. She must ‘undergo any mental health assessment, that may include psychological and neuropsychological treatment as directed by the regional manager, and [she] must participate in programs and/or courses that address factors relating directly to the offending, as directed by the regional manager’ ([60]-[61]). The court is also going to monitor her progress and she is required to come back for ‘judicial monitoring’ so that she has to appear before the Court and the judge will receive ‘a report about what you all are doing on the order’ ([62]).
Ms Underwood was sentenced to a 2 year community corrections order with 50 hours of community service. She too (at [89]) ‘must undergo the assessment and treatment in relation to drugs, in relation to alcohol use or dependency. You must undergo any mental health assessment and treatment that may include psychological and neuro-psychological or psychiatric treatment as directed by the – that regional manager. You must participate in programs and/or courses that address factors relating to the offending as directed the regional manager’.
Both defendants were required to provide a forensic sample, so their DNA could be recorded on the police database ([80] and [99]). There was also an order made for compensation to be paid [77] for damage done to the ambulance ([127]). It’s not stated what the value of that compensation order was.
Discussion
In sentencing the judge said ‘what I have to have regard to in sentencing in relation to these two appellants are matters which go beyond the effects on the victims of the assault’. That is always the case. That the court has to take into account more than the effect on the victim is also reasonable. Sometimes the ‘effect’ is just down to luck. A person who tries to kill someone is subject to the same punishment as if they did kill them – they don’t get a discount because of their incompetence or the skills of the paramedics that save the victim. And a person who accidentally kills someone does not get punished as if they were a murderer even though the consequences are the same. If that were not the case, RFS Volunteer Mr Wells would be in gaol but I expect many readers of this blog are happy that his circumstances, including his volunteering, were taking into account on sentence – see RFS firefighter sentenced over fatal collision (December 5, 2016).
With respect to finding special circumstances, the judge did not pull these considerations from thin air. She considered those matters that the legislature directed her to turn her mind to, and the evidence that was before the court. The judge, in considering s 10A, was not ignoring the prima facie rule of 6 months imprisonment, she was instead applying the law as it was written by parliament.
With respect to the offenders’ backgrounds and the history of sexual abuse. Many people will say that should not be considered. One of the reasons that sexual assault of children is seen as one of the worst crimes possible (if not the worst) is because of the devastating and long-term impact it has on the victims of those offences. If we believe that then we have to consider what impact being subject to sexual abuse by family members and raped before the age of 15 has on anyone. We can’t ask everyone to respond to these events (or developing PTSD from their service in the armed or emergency services) in an ‘acceptable’ way. The consequence of being damaged may be that a person can’t behave as we hope they will. These are relevant considerations in sentencing.
On a Facebook page I saw reference to the case where former Prime Minister and current MP Tony Abbot was assaulted. The defendant there was sentenced to two months imprisonment. The comment was words to the effect ‘we should become politicians, they are better protected’. I disagree; the protection is equal. It is a crime to assault an MP, it is a crime to assault a paramedic and it is a crime to assault anyone. Everyone is protected to the same extent. But both Mr Abott and Mr Judd were assaulted.
In Kable v DPP (1995) 36 NSWLR 374, Mahoney JA sitting in the Court of Appeal said (at p. 376):
One of the essential purposes of the criminal law, if not its fundamental purpose, is to protect men and women against violence. There is, it has been suggested, a gap in the protection which traditionally the criminal law affords. The gap lies in the prevention of violence, as distinct from the punishment of violence after it has been committed. If it be clear to demonstration that A proposes tomorrow to murder B, the law does not authorise the arrest or detention of A to prevent him doing so.
The aim of sentencing is not to vindicate the victim or find the ‘price’ that when paid by the defendant makes the victim whole again. The criminal law cannot undue the harm done, any victim would rather not be a victim regardless of the punishment imposed. The criminal law aims to deter future offending by way of specific or general deterrence. Specific deterrence is directed to the offenders. Most offenders are not however ‘someone who has a goal and seeks to achieve it through some desperate way outside the law’. Rather they are ‘simpleminded incompetents, most of them, and they [do] unbelievably stupid, vile things’ (Tom Wolfe, The Bonfire of the Vanities (Vintage books, London, 2010, p. 111). Crime or deterrence is not a simple cost/benefit equation. The potential punishment is unlikely to influence most people and certainly not those with special circumstances (as defined by s 10A). I would suspect that many people who assault paramedics would be able to point to special circumstances listed in s 10A.
Criminal law serves as the safety net to collect people for whom the education, mental health and other social support services fail. If however contact with the criminal law brings people into services that they need, and gives them the push to take advantage of them, it can serve its purpose of preventing future offending. If it’s true that these offenders had made enormous efforts to deal with their mental health and drug taking issues, sending them to gaol is likely only to set them back and increase the risk of future offending.
General deterrence is the idea that the penalty will send a message to others to think twice about their actions, but that is of limited value as people don’t really determine whether or not they’ll commit a crime on a cost/benefit analysis.
It is a standard principle of sentencing that offenders get ‘credit’ for an early plea as it shows relevant remorse and acknowledgment of their wrong doing and saves witnesses and the State the time cost and trauma of a trial. Without that sort of benefit, particularly with mandatory sentencing, a defendant may as well plead ‘Not Guilty’ and hope the Crown can’t prove the case. That serves no-one’s interests. Taking the early pleas of guilty into account was a standard part of the sentencing process.
As a result of this decision, Victorian paramedics took action to write on ambulances that it is not OK to bash paramedics. In upholding the appeals, Her Honour did not say that bashing paramedics was OK. It’s not OK it’s illegal and carries with it criminal penalties, but criminal penalties are not limited to gaol alone. It’s not true that for these two there were no repercussions. Both served 14 days in custody; both lost the custody of their children even if only for a short time, both have spent the last two years living their lives under the supervision of the State. That has had positive outcomes for them but is I suggest a deprivation of liberty. No-one wants to have to report regularly to government officials or have twice a week drug tests. This supervision will go one for the next 2 and 3 years respectively (longer than proposed in the Magistrate’s original sentence). If they fail to meet the requirements they can be subject to further sentence. There DNA is not stored on the police database and Ms Warren has been ordered to pay compensation. These are indeed repercussions that most people would want to avoid. But if they help the offenders move away from the circumstances that led to their offending that has to be better than gaol.
The question is what do we want the justice system to achieve? Is it mere vengeance or to try to prevent future offending (given that past harms cannot be undone)? And either way, why is ‘gaol’ the only option? Not sending people to gaol does not mean that their actions are condoned or that there were no repercussions. Because gaol is generally ineffective it is usually considered a last resort, rather than a first resort (see for example Crimes (Sentencing Procedure) Act 1999 (NSW) s 5). Judges are given different sentencing options, ranging from finding an offence proved but dismissing the matter without conviction to gaol, in order to try and find a sentence that may most assist the community. Gaol is expensive, does little to rehabilitate and exposes people to other offenders. There are some people for whom gaol is the only place where they can go in order to keep the public, or them safe. I’m grateful that we have gaols, and men and women willing to work in them, to keep the likes of Ivan Milat or Carl Williams (even though it didn’t keep him safe) off the street. But gaol is not the best punishment is reflected in the options set out in the Sentencing Act 1991 (Vic) s 7 listed above.
The next step
I note that the Victorian Government has now announced that it ‘seeks to tighten laws after pair avoids prison over paramedic assault’ (ABC News (Online) 18 May 2018). In that article the Health Minister Jill Hennessy is quoted as saying “The special reasons exemption that exists in the legislation has not produced the outcome that our Government wants.” It does make one wonder who they thought the provisions would apply to, and what effect they would have. They specifically, apply to people who assault paramedics and would otherwise be sentenced under s 10AA(4). I’m not sure who she thinks would be the deserving recipients of the benefits of s 10A.
That article also quotes Ambulances Employees Association assistant secretary Danny Hill as saying
“It is just raw emotion that is being expressed at the moment,” Mr Hill said.
“It’s just a shame that the underlying legislation didn’t protect Paul and Chenaye.”
As argued above, whether there was a mandatory sentence of 6 months, or 6 years, that wasn’t going to protect the paramedics. Punishing people after the event is not protecting them before the event.
For my thoughts on mandatory sentencing see:
- Responding to calls for mandatory sentencing (April 3, 2016); see also
- Responding to violence against paramedics (February 11, 2015).
I also note that in many cases patients who attack paramedics may not be guilty of anything if, because of their illness or injuries, they did not appreciate what they were doing or were not acting deliberately or consciously. See:
- Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 4 (October 16, 2015).
Conclusion
Whether this was the right, or wrong, result in this case I can’t say; we employ judges to make those decisions according to law, not according to the desires of the media, the public or even the government. That is what keeps us all safe from government and public outrage. It is fundamental to the concept of the rule of law; and Judge Cotterell did not ignore the law. She applied the law, all of the law including s 10A of the Sentencing Act 1991 (Vic).
My conclusion may outrage some or even most of the readers of this blog, but I am not outraged by her honour’s decision. Sentencing is an incredibly complex task designed to balance a myriad of factors, of which the impact upon the victim is just one of those factors. Her Honour applied the law as set out in the Sentencing Act. She did not ignore or overturn a mandatory sentence provision because that provision did not apply here. Sending people to gaol is largely an exercise in expensive futility and that is why judges have sentencing options such as community corrections orders and community service. Performing 50 or 150 hours of community work may be more beneficial for everyone than committing someone to spend hours in a cell. Equally close supervision is a deprivation of liberty, but it may reduce the chance of future offending in a way gaol will not.
I note her honour’s words to Mr Judd (at [125]-[127]):
Mr Judd, I want to say to you that I wish there were more that I could do for you. I understand that you are suffering and you feel there has been a great injustice done. I can see that from the look on your face.
But I have to deal with what I have to deal with and the situation is that there were a lot of things I had to take into account in sentencing people from very difficult backgrounds two years down the track, and in particular these two young women who have made an enormous effort and it’s probably no comfort to you but hopefully they will become useful members of the community.
But I can’t – I’m really sorry that I can see that you are very badly affected and I hope that you can get some help to help recover and to be able to go back to work eventually. Thank you.
Had Judge Cotterell sent these women to goal, Mr Judd (and other paramedics) may have felt vindicated, but it is unlikely that it would have made the street a safer place to be a paramedic.
POSTSCRIPT
For a commentary on Victoria’s prisons and why sending people to gaol is not the best solution to crime and not the best way to make communities safe see By Sarah Farnsworth, ‘Victoria’s ‘madhouse’ prisons are expensive, but are they making the state more dangerous?’ ABC News (Online) 5 November 2018.
Victoria spends $131,400 per prisoner each year.
That is well above Australia’s national average of $109,821. In fact, if Victoria were its own country, it would have the fourth-most expensive prison system in the OECD, based on the most recent analysis by the Institute for Public Affairs (IPA)…
But one in two Victorian prisoners return to jail within two years of their release.
“I don’t think anyone could claim we are getting great value for it,” Victorian Victims of Crime Commissioner Greg Davies said.
And
We are not really getting bang for our buck,” researcher Andrew Bushnell said.
“No-one is saying that prison isn’t important. One of the vital things that prison does is keep our community safe by taking the most dangerous people off the streets.
“The question is, are we making that class of people too big?
“If we are putting people into prison who can safely be punished outside of prison, then obviously we are taking on a much greater cost than we need to.”…
Victorian Ombudsman Deborah Glass said building more prisons was not making Victoria safer.
“It is easy to say, ‘Let’s build more prisons’. It looks tough to do that,” Ms Glass said.
“What we are losing sight of is that over 99 per cent of prisoners are going to get out one day.
“One in every two prisoners are leaving prison, then committing crime and going back there. The question we need to ask is: what are we doing to make sure people get out of prison and don’t go back?”
The answer, according to Craig Camblin, is nothing.
“All jail is doing now is creating more and more problems,” the former inmate said.
“They aren’t helping people deal with the reasons why they were doing what they’re doing. They are just going to punish them until they let them out again. Then they’ll just go back into the same old habits and do the same old thing.”
The story reports on a young drug addict and drug dealer who was kept out of gaol by the intervention of his lawyer, Tania Wolff:
She convinced Mr Wood to hand himself into police, and pulled strings to get him into detox and rehab.
By the time Mr Wood’s case got to court, he was clean. Instead of jail, he was given an 18-month community corrections order and 200 hours of community work…
Ms Wolff said keeping people like Mr Wood out of jail was better for the community.
“It might not satisfy that primal urge for revenge or retribution, but it’s smart,” she said.
“That person will end up being your neighbour, living around the corner from you, integrating with you in your daily life, driving on the same road as you.
“If you don’t deal with that person, and what they need to fix the behaviour that is underneath it, then you will have a repeat cycle.”
Mr Camblin agrees jail isn’t the place for the likes of Mr Wood.
“It makes you cold, hard, it makes you hate authority, distrustful,” he said.
“What the prisons are doing is putting a bandaid over a problem. They’re just covering it up, so society doesn’t see it.”
Locking up people like Ms Warren and Ms Underwood in Victoria’s gaol system will not make the world any safer for paramedics or for the defendants. Like Mr Wood, if criminal proceedings introduced them to services that can help them change their behaviours that has to be the outcome that will have the most beneficial impact for everyone.
Australian Emergency Law 
For me, this is an example of retributive vs restorative justice.
My initial reaction was outrage as I am a student Paramedic in Victoria. But after reading this I believe the judge interpreted the law correctly. This is after all the fundamental expectation we as a society expect out legal system to do.
Taking anti-social people like these two offenders out of society for 6 months, in an environment like jail, which is full of other anti-socials, is definitely not going to stimulate pro-social thought and behaviour. It will undoubtedly do the opposite.
A nice overview and a well balanced discussion Michael.
As disheartening as it is to myself and other emergency services workers in Victoria, I concede that there has probably not been an error by the courts in this case. That fact does not appease the community expectations that are being expressed widely about the desire for such offenders to receive punitive sentences in such matters.
Would it not make some measure of sense for the offender being intoxicated to be considered an aggravating factor rather than a defense as appears to be the case with drink driving legislation? People choose to become intoxicated and then commit criminal acts which are then sentenced more lightly on the mitigating factor of not being wholly in control of themselves due to intoxication. It appears reasonable at first blush that choosing to become intoxicated increases the risk you pose to society, and is done voluntarily, and as such should not then excuse your behaviour.
NSW has moved somewhat in that direction. The traditional notion is that a criminal offence, at least a serious one, requires the physical act and the relevant mental state or ‘mens rea’. Sometimes being intoxicated means you didn’t form the mens rea, you didn’t realise or foresee the relevant consequences. In that case it’s actually a defence ie you may be ‘not guilty’. If that defence is removed then being intoxicated means that all criminal offences are what we call strict liability offences. Proof of consequences is enough. On the other hand intoxication is a disinhibitor so many people do things drunk they would never do when sober, that isn’t a defence and can see people convicted for offences they would otherwise not dream of committing.
NSW has provisions that talk about the impact of ‘voluntary intoxication’ but whether it’s good law or not is a different matter.
That’s a very sober and well-balanced piece, Michael. Like most, I’m outraged by the decision but I recognize that outrage is a poor motivating factor for justice. Having an independent judiciary is an important protection against mob rule. We must be careful that, in our anger, we also do not ourselves become those that Wolfe described as: ‘simpleminded incompetents, most of them, and they [do] unbelievably stupid, vile things’. Thanks for having the integrity to express a calm voice of reason.
Wrong – this outcome has negatively effected the safety of paramedics. The public has broadcasted evidence that they can get away with assaulting paramedics and are voicing and demonstrating that sentiment since . It has been the opposite of a deterrent, as such laws should be. And yes- this is first hand information, not disbursed from the safety of a legal office. Bottom line – defending the decision based on law is missing the point. It has not served as a deterrent, it has not made the community safer or reflected majority views, genes the outrage, so the law needs to change
The difficulty as I see it is whether the offenders are actually effected by their circumstances, as they purport, or whether this is simply a convenient excuse. Without evidence of further offending, I guess we will never know.
I understand the role of the judge in this case, but the photographs of the two offenders “flipping the bird” to cameras strongly suggests the latter.
So if applying the mandatory sentencing as described will not act as a deterrent to others in assaulting Paramedics, how do we achieve this goal…?
I think looking to the criminal law as the solution is looking in the wrong place. The quote from Kable was trying to make the point that the criminal law is not effective at preventing crime. It only works after the crime has occurred. I’m not a criminologist or sociologist but I suggest that governments actually need to do much more expensive, time consuming and hard work of adequately resourcing education, mental health and community services. That’s not electorally popular but it may be more effective.
Michael, I agree that it’s the behaviour that needs to be addressed through education, community services etc … but what do we do in the meantime? Would it be reasonable for paramedics to be armed with capsicum spray for instance?
What would be the legal position if paramedics refuse to treat aggressive patients (I know this would be a difficult decision for many), or administer sedation in order to prevent an attack such as the two assaults we heard of immediately post the appeal decision.
Does the legislation allow for the type of community service to be dictated by the judge e.g. assisting emergency services in some way that will, perhaps, give the offenders a new perspective.
Kate, paramedics like anyone may use reasonable force to defend themselves. The classic common law (not modified by statute) test is from the High Court in Zecevic v DPP (1987) 162 CLR 645 “The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.” Whether it would be reasonable to issue capsicum spray to paramedics would require a risk assessment by their employer but it may well be a reasonable response to the risk (there would then need to be training and relevant authorisation) but in simple terms, it may be.
Refusing to treat aggressive patients and the issue of sedation (if the patient is not competent) may well be justified too. If the patient is competent one might imply that aggression is refusing treatment; if they are not the necessity justifies treatment that is necessary and in their best interests. As for refusing to treat, the rules of first aid have always been DRABC (now DRS ABCD) but the first D has always stood for ‘Danger’ – look out for danger to yourself, bystanders and the patient in that order. NSW has endorsed the right of paramedics to “keep safe and make the decision to not enter a dangerous situation” (see https://www.smh.com.au/national/nsw/nsw-paramedics-to-place-own-safety-first-and-avoid-unsafe-situations-20180216-p4z0m0.html).
As for community service, that would be a matter for the corrective services department (or whatever name they have in Victoria). It is interesting that in this case the judge did order continued court supervision and requires the defendants to return to court and for the judge to receive reports on their progress.
Hi Michael,
As a Victorian paramedic from the same team as the victims, I have to acknowledge the bias I surely have. And because of this, I am doing my best to work through this matter as rationally as possible. I feel – even after reading your post and agreeing with you that the law has not been breached – that there is still something wrong with this outcome, and I would like to drill down and find out if there is something of value to be discovered.
I want to start with the ‘special reasons’. They seem to exist to allow for those who, due to a psychiatric condition, are unable to regulate their own behaviour. The conditions listed seem consistent with this idea – dementia, ABI’s, intellectual disability – serious stuff. Does Ms Warren really fit in this category?
And to clarify, what actually is Ms Warren’s formal diagnosis?
And what evidence has been presented that this condition was so severe on this occasion that she was not able to prevent herself from approaching two paramedics and begin a violent and sustained assault?
(If this information is available I genuinely would like to know – I am just asking the questions.)
Another concern of mine is that if we are satisfied that a severe impairment does exist excusing a person of this action, how can we then also accept that they have rehabilitated themselves of such an impairment in just two years? If we really believe that then surely we must then admit that we have overestimated the scale of the illness (and re-introducing culpability) in the first instance.
The methods by which she has demonstrated her efforts to rehabilitate herself also appear quite flimsy. Attending the gym and yoga classes? Complying with drug screening? Does this really constitute an “enourmous effort” as Judge Cotterell asserts? What am I missing here?
And regardless of the severity of mental illness, how can we say that a person who has demonstrated their susceptibility for this kind of unprovoked violence is suitable to remain in contact with the community? Either they are very unwell and require secure psychiatric rehabilitation or they have acted of their own accord which is even more disturbing. Either way we have no assurance that the risk to the public (and the emergency services) is sufficiently low. Would you feel safe attending Ms Warren’s address at 3:00 am for alcohol and/or drug intoxication without police knowing what she has done? Would Her Honour?
This crime was not a fearful and defensive lashing out from a confused and agitated psychiatric patient for which I feel the special reasons are designed to capture and protect – it was an intentional, aggressive and sustained assault that in my view must require a proportionately convincing amount of evidence in order to prove a lack of culpability.
I’m just not seeing it.
N.B. Please if you can let me know where in these thought processes I might be missing some key information. I would like to understand this matter better and welcome your expertise. I have intentionally avoided discussion about Ms Underwood as this has already become too long, but many of my arguments here are generic to both attackers.
Joel
Note that impaired mental function is referred to as a ‘special circumstance’ in s 10A(2)(c) only, not in the other paragraphs of s 10A(2).
Whether Ms Warren ‘really fit[s] this category’ I can’t say. I haven’t seen the evidence that the judge has seen and it’s not my call. It was the judge’s call.
“And to clarify, what actually is Ms Warren’s formal diagnosis?” I don’t know.
“And what evidence has been presented that this condition was so severe on this occasion that she was not able to prevent herself from approaching two paramedics and begin a violent and sustained assault?” … Another concern of mine is that if we are satisfied that a severe impairment does exist excusing a person of this action, how can we then also accept that they have rehabilitated themselves of such an impairment in just two years? If we really believe that then surely we must then admit that we have overestimated the scale of the illness (and re-introducing culpability) in the first instance.”
If the impairment was so severe that she could not control herself, she would have been ‘not guilty’. Section 10A does not excuse the defendant, the defendant is still guilty of the crime, it just means that the mandatory sentence doesn’t apply. Note too s 10A(e) provides for special circumstances if there are ‘substantial and compelling circumstances’. You may have been told there was a mandatory sentence, but it’s only mandatory unless the judge thinks it shouldn’t be. The claim that there was or is a mandatory sentence is and has always been at best a half-truth, at worst a lie.
The court did not “accept that they have rehabilitated themselves of such an impairment in just two years”. They will be under ongoing supervision for the next 2 and 3 years respectively.
“The methods by which she has demonstrated her efforts to rehabilitate herself also appear quite flimsy. Attending the gym and yoga classes? Complying with drug screening? Does this really constitute an “enormous effort” as Judge Cotterell asserts? What am I missing here?”
The matters are listed in [8]-[11]. The judge has written every detail for us to read but that’s her reasons. Whether you agree that these represent an ‘enormous effort’ is another matter. The judge heard and read the evidence and that’s her view.
“And regardless of the severity of mental illness, how can we say that a person who has demonstrated their susceptibility for this kind of unprovoked violence is suitable to remain in contact with the community? Either they are very unwell and require secure psychiatric rehabilitation or they have acted of their own accord which is even more disturbing.”
They have not be found ‘not guilty by reason of mental illness’ so they were found to have acted voluntarily. But if they are serve 4 and 8 months gaol respectively, they will again be in contact with the community. The judge took the view that their contact with the criminal justice system had led to changes in their behaviour that suggests they are able to remain in the community. If that option isn’t available we’d need mandatory life sentences for every crime.
“Would you feel safe attending Ms Warren’s address at 3:00 am for alcohol and/or drug intoxication without police knowing what she has done? Would Her Honour?” Probably not, but that’s a different matter. If Victoria Ambulance want to respond with police that may well be a reasonable response.
“This crime was not a fearful and defensive lashing out from a confused and agitated psychiatric patient for which I feel the special reasons are designed to capture and protect – it was an intentional, aggressive and sustained assault that in my view must require a proportionately convincing amount of evidence in order to prove a lack of culpability.
I’m just not seeing it.”
The judge has not written a complete narrative nor is the evidence that the judge saw available, so you are literally not seeing the evidence. At the end of the day someone has to make the call and that is what judges are appointed to do. Her Honour’s reasons explain what factors she saw and how she fitted it into the Act. Remember though they did not prove a lack of culpability, they were convicted, not acquitted. The sentence imposed was not ‘nothing’ even if it was not as tough as you would have liked. Section 10A is not a defence, it is the list of circumstances that may mean the purported mandatory sentence need not apply.
Her Honour did not say the conduct of these accused was justifiable, or excused, or that they lacked culpability.
Thank you Michael for your legal dissection of the Law & circumstances. An important point that some Paramedics are missing is that we have in place a “Legal System” & NOT a “Justice System”. Therein lies the difference. Whilst the Judge is correct in their findings & decisions, which you agree with, the actions of the Plaintiffs on the steps of the Court exemplifies their attitude to a section of Society that chooses to help people in need. I wonder if they have ever apologised to the injured Paramedic?
Thanks Michael for a detailed insight into a very emotive issue.
Cases like this are very difficult because people (yes, I’m making an assumption) might be sympathetic to victims but are not sympathetic to criminals. However in many cases (like this one) the two are the same.
So to draw a parallel, it’s easy to feel sympathy for a war veteran (or an emergency service worker!) with PTSD but that sympathy and understanding evaporates when this PTSD manifests as domestic violence or alcoholism (or alternatively, there’s total denial because it’s so hard to reconcile the two).
I still remember an incident in primary school when a local bully stormed up to me and repeatedly (and quite violently) kicked the back of the chair I was sitting on (which I did nothing to provoke). The teacher did explain that he was troubled because his father regularly beat him and was resentful of me getting all the attention in class (as a recent migrant who did not speak English). From what I remember he benefitted from counselling and he did get a couple of days of suspension as a deterrent to others. As a grown up member of society (many decades after the incident) I can see that counselling + suspension (as opposed to automatic expulsion) was a good way to go in that case but I assure for many years after I felt resentment and anger at the lack of really strong punishment.
It’s easy to make a black-and-white judgment call reading news stories about perceived lenient sentencing because we ‘the public’ see only the criminal, not the whole person.
Great thread of well thought out comments, thanks to all. This is an important topic. You may be interested in looking over this systematic review protocol: “Effectiveness of mitigation interventions on occupational violence against emergency service workers: a mixed methods systematic review protocol”. It will be very interesting to see the results of this when the actual review is completed. I’ll be watching for this one. https://journals.lww.com/jbisrir/Fulltext/2018/05000/Effectiveness_of_mitigation_interventions_on.2.aspx?mc_cid=4f71ef413d&mc_eid=080eb5d50b
Hi Michael, thank you for your comprehensive and well thought through position.
I can understand how some paramedics may have trouble accepting this outcome, but I am glad that you have pointed out that judges are experts at what they do, just as paramedics are. It is important to note that although judges are only human and therefore open to making mistakes, there are checks and balances in place to address this. Nonetheless, the argument regarding professional expertise and the exercise of that expertise in this case is an important one particularly in light of the fact that the Victorian government is now considering introducing mandatory sentencing for this offence.
As a lawyer and as a citizen I do not agree with mandatory sentencing and this is because it is often used as a tool for populist politicians to improve their own position whilst doing nothing to improve outcomes for either victims or criminals. It is a tool that too often leads to injustice and other, unintended consequences. As such, it pays to be wary of it.
One of the unintended consequences of mandatory sentencing is that it not only leads to injustice, it also undermines the discretionary powers that we give to professionals as an acknowledgement of their expertise and the recognition of the complexity that is often involved in managing humans. We can’t prescribe a one-size-fits-all approach and hope to effectively deal with all human cases. This is as true in paramedical practice as it is in judicial practice. That is why we give professionals – this special class of worker who are in a positions of great responsibility (eg judiciary responsible for human liberty, paramedics responsible for human life) – the discretionary power to gather all the salient information, make an assessment of it and then apply a remedy that is best for the particular circumstance. Again, we need to be quite careful about demanding that these very useful discretionary powers be limited because a call for limitations on the way the judiciary do their job, which amounts to an undermining of their expertise and trust that they will use their discretion wisely and responsibly, could just as easily be applied to paramedics and their practice.
Hi Michael
Thank you for your detailed discussion on this topic. The explanation does not sit well at the moment and I do recognise that I want some degree of vengeance. But to support that feeling it does also appear that these women also believe that they have largely “got away with it”. The concept that these women have reformed themselves is somewhat undone by the one finger salute given to the media at court. I had also been led to believe that our legal system contained the concept of ‘a debt to society’ which needed to be paid by offenders. Irrespective of that, I guess we all feel that the least they can do is to behave appropriately, acknowledge the behaviour as unacceptable and express remorse publicly.
The second part of my anger is that this should never have taken 2 years to get to the point of sentencing. By delaying and delaying they have given themselves the opportunity to appear reformed and avoid the custodial sentence that was given initially. Personally I do not believe that they have reformed. Statements such as “now with some difficulty has her drinking and drug use under control” do not fill me with confidence. This is not a statement of abstinence and a person who has some drug use frequently finds that the use and subsequent behaviour becomes out of control. In addition the opportunity to appear reformed is not something given to most offenders, who face court soon after the offence; so it would appear that the intent of the law is to punish at least as much as to reform. As to the intent of the law makers, I can only suggest that to place a “mandatory” sentence suggests that the intent is for the offender to serve gaol time. This intent is reflected by the comments of the current health and ambulance services minister “The special reasons exemption that exists in the legislation has not produced the outcome that our Government wants”.
If the main issue is to protect society from violent assaults, I believe the balance is wrong and from the public reaction I am not alone in this belief. There have been too many instances where violent offenders have been given a second, third, fourth or even fifth chance only to have them offend again and again. Releasing violent offenders for whatever reason does not protect society. If it is genuinely believed that community corrections orders do more to protect the public, then these should routinely be added to a sentence instead of being used in some circumstances as a substitute.
From my perspective I have difficulty with some things as applied in this law. Possibly these are aspects of law that need to change.
Why do we accept alcohol as an excuse? The person was sober when they made a decision to introduce something into their body with a known propensity to affect behaviour. This is even more the case for drug use, hence the reason why those substances are illegal. We all know that there are people who do not care about the consequences of their actions, hence the use of the word “recklessly” in the legislation. I had understood that this is in the law to counter the circumstances where the person has not formed a specific intent or “mens rea”. They did form the specific intent to take the substance, reckless of the potential result where they might be more prone to violence. It is in this aspect that I see the concept of a custodial sentence forming general deterrence.
At what point do we consider ourselves grown up? At about age 16 I considered myself able to make my own decisions responsibly, independent of other influences, with consideration of right and wrong. I am lucky in that my childhood does not compare with the evils experienced by these women, but the “me too” movement has shown that bad experiences have been experienced by an extremely large percentage of both women and men. Does that mean that we should be expecting violence from the majority of the population?
What aspect of “a bad childhood” makes these women believe that such a vicious assault is reasonable behaviour? I can understand that a bad child hood might result in decreased abilities in emotional control, with the tendency to lose control over minor matters; but if being asked to step aside is such a matter, then these women present a real danger to society at every moment. Additionally the concept that they just lost control is undermined by the fact that they left the scene and then returned a few minutes later to assault the paramedics, making the assault seem pre-meditated, if only meditated for a few minutes. The prolonged or sustained nature of the attack also goes beyond a momentary loss of control. Judge Cottrell stated “Her impaired mental functioning, which is causally linked to the commission of the offence, substantially reduces her culpability”. I cannot see any way in which this background or subsequent mental state has caused this unprovoked offence to be committed and I say again that if that is the case then she needs to be removed from society for society’s protection. I had understood that to be much of the purpose of the law.
Further, these childhood traumas are not a new problem for the offenders. I believe Ms Warren is in her 30s. Ms Underwood may be somewhat excused on these grounds. Although I do question how long this excuse will last. Will they still be able to use a bad childhood to justify bad behaviour when they are 80? If it is such a significant mental burden that she cannot function properly in the community then surely she has had an opportunity and a responsibility to get treatment and management for these issues. If you have a problem and don’t take treatment, why should you be excused your actions as a result? If a mere 2 years duration of treatment is sufficient to substantially reform their behaviour, then they both have had ample time to take the appropriate steps to protect the community. Moreover, both these women have chosen to take on the responsibilities of an adult when they have had children. If they request custody of their children, then they accept adult responsibilities. I cannot reconcile selectively being able to behave appropriately with their children and lack of responsibility for their actions when encountering a person helping someone else.
All paramedics understand that there are some circumstances where a person may not be in control of their actions, such as a person having an acute psychotic episode (for example hearing voices telling them to kill), or a diabetic having a hypoglycaemic episode, or a person who has just suffered a traumatic head injury. It is these cases that we expect to be legally excused. In these cases we are prepared and can approach with a plan to minimise the chances of injury. To be attacked by a bystander at scene will always be seen as inexcusable.
“…I do recognise that I want some degree of vengeance. But to support that feeling it does also appear that these women also believe that they have largely “got away with it”. The concept that these women have reformed themselves is somewhat undone by the one finger salute given to the media at court.”
Lots of people react badly to the media with cameras in their face. These people are not the smartest or nicest people in the world but what relevance is there conduct in the media. Lots of people assumed Lindy Chamberlain was guilty because of the media image she presented. She wasn’t.
“I had also been led to believe that our legal system contained the concept of ‘a debt to society’”. Hence 150 hours and 50 hours community service, respectively. Going to gaol is not ‘paying a debt’.
“The second part of my anger is that this should never have taken 2 years to get to the point of sentencing. By delaying and delaying they have given themselves the opportunity to appear reformed and avoid the custodial sentence that was given initially.” The judge noted that the delays were in the office of the DPP. The defendants sought to enter a plea of guilty to the offences for which they were sentenced at the first opportunity. They didn’t ‘give themselves’ that opportunity.
“Personally I do not believe that they have reformed”. You’re not the judge.
“As to the intent of the law makers, I can only suggest that to place a “mandatory” sentence suggests that the intent is for the offender to serve gaol time.” But the claim there was a mandatory sentence was a lie. It was only a mandatory sentence unless special circumstances applied. Those special circumstances included any ‘substantial and compelling circumstances’ that in the judge’s opinion warranted a lesser sentence (s 10A(2)(e)). In any event one of them was sentenced to gaol (albeit for 14 days, time already served).
“This intent is reflected by the comments of the current health and ambulance services minister “The special reasons exemption that exists in the legislation has not produced the outcome that our Government wants”.” That just begs the question of what outcome did she think it would produce? Who did she think would be able to use it? Polite well socialised people?
“There have been too many instances where violent offenders have been given a second, third, fourth or even fifth chance only to have them offend again and again.” But that wasn’t these offenders, neither had prior convictions.
“Releasing violent offenders for whatever reason does not protect society. If it is genuinely believed that community corrections orders do more to protect the public, then these should routinely be added to a sentence instead of being used in some circumstances as a substitute.” You’d have to look at sentencing statistics to see how they are used; but they are used as a substitute as well as added to sentences (see s 44).
“Why do we accept alcohol as an excuse?” We don’t. A crime requires various elements and some require intent or knowledge. If you didn’t form the intent as a result of alcohol or other reasons then you’re not guilty. Recklessness deals with a situation where a person realises that the possible consequences of their action may be the prohibited outcome. So a person who swings their arms realising they may hit someone is guilty of assault even if they don’t particularly intend to hit anyone. Do note however that in sentencing the judge made no reference to their state of intoxication at the time of the offence and the fact that they were intoxicated was not given as a factor relevant to their sentence or the application of s 10A.
“What aspect of “a bad childhood” makes these women believe that such a vicious assault is reasonable behaviour?” What makes you think they think this was reasonable behaviour? They offered to enter a plea of guilty at the first opportunity. They did not defend their actions.
“If it is such a significant mental burden that she cannot function properly in the community then surely she has had an opportunity and a responsibility to get treatment and management for these issues.” Then you have more confidence in the state’s mental health services than I.
“If you have a problem and don’t take treatment, why should you be excused your actions as a result?” They weren’t excused. They were found guilty. They have to have their lives monitored for 2 and 3 years respectively. They have a criminal record that will be reflected if they do offend in future.
“Moreover, both these women have chosen to take on the responsibilities of an adult when they have had children. If they request custody of their children, then they accept adult responsibilities.” And they lost custody of their children, albeit returned to them on demonstration that they could do the things you wanted.
“All paramedics understand that there are some circumstances where a person may not be in control of their actions, such as a person having an acute psychotic episode (for example hearing voices telling them to kill), or a diabetic having a hypoglycaemic episode, or a person who has just suffered a traumatic head injury. It is these cases that we expect to be legally excused.” These women were not legally excused. They were not found ‘not guilty’. If they were ‘excused’ the verdict would have been ‘not guilty’ and they would have left court without record and without supervision orders or other controls on their life. Section 10A would have no application in the circumstances you describe (“an acute psychotic episode … a diabetic having a hypoglycaemic episode, or a person who has just suffered a traumatic head injury”) because there would be no offence. Section 10A was always going to be used by people who did commit the offence but for the reasons listed, gaol was not the best penalty. The Health Minister’s shock is either ignorant or false. Given that s 10A could only apply to the guilty, what outcome did the government want? The answer (as with most governments) they wanted it to be used by people that had popular support and not by those that don’t.
You think they should have gone to gaol; fine. The judge did not think that. At least you can see the judge’s reasons. But just because they did not go to gaol it does not mean that they were excused. Gaol is not the only sentencing option and it’s not the only sentencing option as other sentencing options can be more effective in reducing future offending.