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  VCC 689
The reasons for Her Honour’s decision are reported as DPP v Warren and Underwood  VCC 689.
With respect to the defendant Warren, the judge (at ) 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 (-):
- 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 (-):
- 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.
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 ) ‘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 -):
… 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.
Her Honour took into account (-) 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.
Her honour acknowledged the seriousness of the offence and the impact upon the victim. She said (at ):
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 (-:
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.
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’ (-). 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’ ().
Ms Underwood was sentenced to a 2 year community corrections order with 50 hours of community service. She too (at ) ‘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 ( and ). There was also an order made for compensation to be paid  for damage done to the ambulance (). It’s not stated what the value of that compensation order was.
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).
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 -):
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.
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.
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.