IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Unrestricted
Suitable for Publication	
Case No. CR-21-01173
Indictment No. L12178952

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
CONNOR KEATING		

---

JUDGE:	HIS HONOUR JUDGE TRAPNELL 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 October 2021, 24 January 2022	
DATE OF SENTENCE:	3 February 2022	
CASE MAY BE CITED AS:	DPP v Keating	
MEDIUM NEUTRAL CITATION:	[2022] VCC 89		

REASONS FOR SENTENCE

Subject:		Criminal Law
Catchwords: 	Sentence – Persistent contravention of family violence intervention order – Assaulting an emergency worker on duty – Causing injury intentionally – Conduct endangering life – Possession of a drug of dependence –Spontaneous and unsophisticated offending – Offending occurred over a relatively short period of time – Early pleas of guilty – Severely disadvantaged childhood – Intellectual disability and mental illness – All Verdins principles engaged – Extensive prior criminal history – Young offender – Highly problematic prospects of rehabilitation – NDIS support
Legislation Cited:	Sentencing Act 1991 ss 5(2G), 5(2GA), 10A, 41
Cases Cited:	R v Verdins (2007) 16 VR 269 – Muldrock v The Queen (2011) 244 CLR 120 – Rodriguez v DPP (Cth) (2013) 40 VR 436 – Marrah v The Queen [2014] VSCA 119
Sentence:	TES 509 days imprisonment combined with a 3-year CCO – Fined $300 

APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr L McAuliffe
14 October 2021
24 January 2022

Ms L Watson
3 February 2022
	Ms A Hogan, Solicitor for Public Prosecutions	
For the Accused	Ms E Millar	Victoria Legal Aid	

HIS HONOUR:

1	Connor Keating, you have pleaded guilty to an indictment containing one charge of persistent contravention of family violence intervention order (Charge 1), one charge of assaulting an emergency worker on duty (Charge 2), one charge of causing injury intentionally (Charge 3), one charge of reckless conduct endangering life (Charge 4) and one charge of possession of a drug of dependence (Charge 5). 
2	You have also consented to have this Court deal with two transferred related summary offences comprising one charge of commit indictable offence whilst on bail (Summary Charge 20) and one charge of contravene a conduct condition of bail (Summary Charge 22). 
3	The maximum penalties for these offences are as follows:
Persistent contravention of family violence intervention order — 5 years’ imprisonment and/or 600 penalty units.
Assault emergency worker on duty — 5 years’ imprisonment.
Causing injury intentionally — 10 years’ imprisonment.
Reckless conduct endangering life — 10 years’ imprisonment.
Possession of a drug of dependence (in the circumstances of this case) — 5 penalty units. 
Commit indictable offence whilst on bail — 3 months’ imprisonment and/or 30 penalty units.
Contravene a conduct condition of bail — 3 months’ imprisonment and/or 30 penalty units.
The Facts
4	The prosecution filed a summary of prosecution opening for plea dated 13 September 2021, which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
5	You and Ms Anna Milliner previously were in a relationship and have been separated for about four years.
6	On 20 January 2017, the Magistrates’ Court of Victoria sitting at Ballarat made a family violence intervention order, which expired on 16 August 2021. Ms Milliner is a protected person under the intervention order. The intervention order includes, relevantly, conditions that prohibit you from committing family violence against Ms Milliner, contacting or communicating with her, approaching her and going to or remaining within 200 metres of any place where she lives.
7	You were served with a copy of this order on 3 February 2017 and the matters set out in s 96(1) of the Family Violence Protection Act 2008 were explained to you by a Victoria Police officer. 
8	In late August 2020, Ms Milliner’s mother passed away. Shortly afterwards, Ms Milliner saw you in the Ballarat Central area and you discussed her loss. With her consent, you began visiting her house in contravention of the intervention order.
9	On 10 September 2020, you stayed overnight at Ms Milliner’s house and slept in the loungeroom. She awoke sometime during the day on 11 September 2020 to find you had left. She went back to sleep. She later woke up around 5 pm to find you had returned. There were no difficulties between you, and everything was calm.
10	Ms Milliner left the house shortly after you returned. While she was out, you began texting and calling her. You became angry when she would not return home. You sent her approximately 20 text messages and called her around 12 times during that night (Charge 1). Some of the text messages included the following:
a.	‘I’m going to burn your fucken house down if you don’t pick up the fucking phone.’ 
b.	‘Don’t fucken test me.’
c.	‘No you didn’t do fine you fucked up miserably keep fucking lying to your self and yeah I do that’s why I need the fucken money.’ 
11	Ms Milliner was too afraid to return home and instead she went to the Ballarat police station and sought help. 
12	At 12:13 am on 12 September 2020, Constable (C/-) Joshua Crawford and Acting Sergeant (A/Sgt) Nick Harrison were requested to attend Ms Milliner’s home. They arrived and entered the house, but no one was there.
13	At 1:19 am, C/- Crawford and A/Sgt Harrison drove to 9 Fraser Street, Mount Pleasant. After they arrived, but before they got out of their police car, they saw you sprinting towards them, yelling at them to turn off their car’s high beam head lights. 
14	You had no identification on you and initially refused to reveal your identity. While police tried to confirm your identity, you were asked to be seated and remain seated in the driveway of 9 Fraser Street. You eventually gave your name as ‘Connor Keating’.
15	A/Sgt Sergeant Harrison attempted to arrest you and told you to move onto your stomach and place your hands behind your back. You did not comply with his direction and got to your feet, saying something to the effect of, ‘I just want to go home.’ You moved towards A/Sgt Harrison, and he sprayed you with oleoresin capsicum (‘OC’) spray. You said something to the effect of, ‘I love being sprayed! It does nothing to me.’ You then rushed towards him. You were throwing punches at this time, and a number connected to the right side and rear of A/Sgt Harrison’s head (Charge 2).
16	C/- Crawford grabbed you by the arm in an effort to restrain you. You both ended up wrestling to the ground. You got on top of C/- Crawford who was laying on his back. You placed your left arm around his throat and squeezed. Constable Crawford tried to yell for help, but he was unable to speak. He was unable to breath, and he could only make a ‘gurgling’ sound (Charge 4). He used his left hand to punch your face in an effort to stop you. You did not loosen your grip. While choking C/- Crawford, you punched him four times to the left side of his head. He tried to push your head with his left hand, whereupon you bit his hand (Charge 3).
17	A/Sgt Harrison used his baton to strike your back and torso, while C/- Crawford tried to push you off. A/Sgt Harrison heard C/- Crawford making a ‘gurgling’ sound, which prompted him to taser you. This caused only momentary respite, during which A/Sgt Harrison heard C/- Crawford take a ‘massive gasp’ of air.
18	This temporary respite did not last long, and you continued choking C/- Crawford. A/Sgt Harrison tasered you again. You then said something to the effect of, ‘OK I’ve been tasered I’m done!’ and ‘I give up’ or ‘Alright you got me’, and you then released your grip on C/- Crawford’s neck. You were placed in handcuffs and rolled over onto your stomach so you could clear your mouth of blood.
19	Other Victoria Police officers arrived shortly afterwards to assist. C/- Crawford was observed to be distressed. His face and eyes were red, and he had a number of marks around his neck.
20	When you were cautioned, you said something to the effect of, ‘I didn’t mean to strangle him, I know you guys are doing your job, I just get angry.’ And you also said, ‘I’m going to go back to jail aren’t I, I shouldn’t have strangled him.’
21	At the time of your arrest, you were in possession of a backpack which police searched. In it they located a clear resealable bag containing 4.7 grams of cannabis (Charge 5). The Crown accepts you possessed this cannabis only for personal use. Accordingly, I am satisfied on the balance of probabilities the circumstances prescribed in s 73(1)(a) of the Drugs Poisons and Controlled Substances Act 1981 apply in your case. 
22	You were taken to Ballarat police station and placed into custody. You refused an offer to be interviewed.
23	At all relevant times, C/- Crawford and A/Sgt Harrison were Victoria Police officers performing rostered duties and wearing full Victoria Police uniform.
24	Between 10 and 12 September 2020, you were subject to a grant of bail with certain conduct conditions attached. These conditions included a curfew condition which required you to reside at 33 Forsyth Avenue, Horsham, between the hours of 10:00 pm and 6:00 am daily. By residing at Ms Milliner’s house, you breached this condition (Summary Charge 22). Moreover, in committing the indictable offences the subject of indictment Charges 1, 2, 3, 4 and 5, you committed indictable offences whilst on bail (Summary Charge 20).
25	A statement was later obtained from a witness who lived in Fraser Street and who observed C/- Crawford and A/Sgt Harrison with you outside the front of his house. He saw you become aggressive when C/- Crawford and A/Sgt Harrison were holding you. The witness heard you start yelling and saying words to the effect of, ‘I just want to go home … I didn’t do anything.’ He also saw you striking the younger police officer (a reference to C/- Crawford) about three times as you were trying to resist police restraint. You then moved out of his line of sight.
26	C/- Crawford was taken to Ballarat Base Hospital, where he was X-rayed and observed for about eight hours. He was treated for:
a.	bruising/haematoma to his throat; 
b.	lacerations to the right and left sides of his neck; 
c.	a lump on the left side of his head; 
d.	a bite wound to his left hand; and 
e.	multiple lacerations and swelling to the skin on his face and neck. 
27	C/- Crawford took three days off work due to his neck injuries. He was tested for blood-borne diseases. After three days, the tests results were returned and were negative for the transmission of any diseases. 
Victim Impact
28	A victim impact statement from C/- Crawford was tendered by the prosecution. He suffered general soreness for a number of days after the incident. He also suffered pain as a result of bruising to his neck, hand and face and from stress owing to waiting for blood test results and having to take time off work. He was unable to exercise due to soreness caused from the incident. He also suffered psoriasis after the incident which he said was brought on by stress. 
29	I take into consideration the impact of your crimes on C/- Crawford in sentencing you.
Offence Seriousness
30	Your counsel conceded taken overall your offending is serious, as it involves both family violence and violence directed towards police officers who were performing their lawful duties. 
31	Your offending forms part of a series of offences spanning three days. The most serious offending occurred within a period of less than six hours (between 8:30 pm on 11 September when you commenced sending messages and trying to call Ms Milliner, and approximately 1:30 am on 12 September 2020) which is of relatively short duration.
32	In relation to your offending against Ms Milliner, this is a serious example of persistent contravention of family violence intervention order. The Crown submits your offending falls above the middle of the range for offences of this type. In my opinion, it is mid-range offending.
33	You and Ms Milliner had been in an ‘on-again off-again’ relationship since being separated four years earlier. It is noted you have a five year old child together, Tristan, however he resides in foster care. You and Ms Milliner have limited contact with him. Child Protection remain involved, and it is unlikely you will ever be able to have the ongoing care of Tristan.
34	Your contact with Ms Milliner on the 10th and 11th of September was initially affable, with Ms Milliner agreeing you could stay at her house, albeit, as your counsel conceded, this was in breach both of an intervention order and your bail conditions. Apparently, you had reconnected with Ms Milliner approximately three weeks earlier which was just after her mother had passed away and she needed support. This led to her allowing you to come and go from her house.
35	The family violence intervention order was in place to give Ms Milliner protection. While the Crown conceded you were not violent when initially meeting Ms Milliner, your behaviour and threats later became severe when your calls went unanswered. The aggregate effect of your offending, and its persistent nature, would have caused Ms Milliner significant stress, anxiety and emotional trauma. 
36	The phone calls and text messages from you to Ms Milliner appear to be in the context of you needing to get some of your money from her, but she did not respond to your missed calls and messages for some time, and this is when your behaviour escalated, and you became threatening. 
37	Your counsel conceded this was obviously a frightening experience for Ms Milliner as she was afraid to return to her house while she thought you remained present, and she attended the police station to report the matter.
38	Although your behaviour was persistent, the offending was of relatively short duration – it did not extend over days or weeks as is the case with many persistent contraventions of family violence intervention orders. 
39	While your counsel submitted you did not follow through with your threats and there is no evidence that you had any plan or real intention to do so, your offending conduct was serious enough, nonetheless. 
40	Moreover, I accept there was no physical violence directed by you towards Ms Milliner.
41	Later in the night, when you came across C/- Crawford and A/Sgt Harrison, you were initially compliant with their requests to sit in the gutter and provide your name, and you were calm at that point. The officers recognised you as someone they were looking for, in order to arrest you. When you were not immediately compliant with the request to roll onto your stomach and place your hands behind your back, you were sprayed with OC spray. This was a very rapid escalation of the situation which, your counsel submitted, could have been avoided. He submitted, it was only at this point your behaviour escalated and you assaulted C/- Crawford and A/Sgt Harrison. Unbeknown to the police officers, your intellectual disability predisposed you to acting in this manner.
42	The prosecution conceded this is a less serious example of this type of offence. The blow to A/Sgt Harrison was short-lived and there is no evidence of any obvious injury being sustained. 
43	Your offending of reckless conduct endangering C/- Crawford’s life is a serious example of this type of offence. The Crown submitted it falls towards the higher end of the range. Once again, I consider it to be mid-range offending. You were on top of C/- Crawford and placed your left arm around his throat and squeezed. He could not breathe and could only make a gurgling sound. You also punched him in the head four times. Your conduct caused him to fear for his life. The gurgling sounds also prompted A/Sgt Harrison to use his taser on the you in order to protect C/- Crawford from further violence. 
44	Your counsel conceded the ensuing struggle with the police was serious and C/- Crawford would have been in fear for his life. The typed hospital notes state you ‘strangled officer for > 10 seconds by squeezing his trachea, bit the officers forearms, and caused multiple lacerations to officers exposed skin.’ The hand-written notes state that C/- Crawford was ‘strangled for 10 seconds.’ These hand-written notes also state that ‘small haematoma L) eyebrow, red neck, eyes red, burst capillaries seen.’
45	There are some inconsistencies in these records. While it is unclear exactly how long the offending conduct lasted, it is clear that it was long enough for C/- Crawford to be rendered unable to speak, to breathe or to yell for help, and it was long enough for A/Sgt Harrison to hear gurgling sounds and use his taser on you.
46	The hospital notes also show that approximately 20 minutes after the incident, at 1:39 am, C/- Crawford denied being in pain or short of breath. At 1:45 am, he rated his pain as 1/10. 
47	Neither police officer was seriously injured, and C/- Crawford’s injuries were relatively superficial and healed without further medical intervention. Your counsel submitted the injuries fall at the lower end for offences of this type. I accept this is so.
48	Nonetheless, your offending conduct of intentionally cause injury is a serious enough example of this type of offence. You bit C/- Crawford’s hand, in addition to the injuries sustained to his head and lacerations and swelling to his face. The medical records indicate that he was required to undergo testing for the transmission of viruses, albeit all tests returned negative results.
49	Your counsel submitted, overall, your actions were spontaneous and an emotional reaction to your circumstances, and there was a lack of planning and organisation to your offending. She submitted your offending was wholly unsophisticated. The Crown conceded your offending conduct was unplanned. I accept your counsel’s submission in this regard.
50	As your counsel conceded, general deterrence, denunciation and protection of the community are the primary sentencing considerations in offences of this kind. 
Personal Circumstances
51	You were born in Melbourne in April 1998 and are now 23 years old. You were aged 22 years at the time of this offending. 
52	Your counsel submitted your childhood was dysfunctional, chaotic and severely disadvantaged. You are the youngest of nine children, with six half-siblings on your mother’s side and two half-siblings on your father’s side. Both of your parents were drug addicts. Your mother also abused alcohol and had significant health issues. She continued to abuse substances while pregnant with you and you report being born prematurely and suffering neonatal abstinence syndrome owing to your mother’s heroin use. Because of this you were given methadone as a newborn.
53	Your mother suffered an acquired brain injury and developed a personality disorder after being subjected to significant violence by her partner prior to meeting your father. Family violence also plagued your parents’ relationship, including both verbal and physical violence. While your parents remained together until your mother’s death, you told psychologist Ms Miriam Latif, who assessed you at your lawyer’s request in May 2021, your parents’ relationship was violent and volatile. You told Ms Latif your parents were always fighting, and you have seen your mother put a shotgun to your father’s head. You said your parents only communicated by yelling. You were also physically abused by your father at the behest of your mother. 
54	You told Ms Latif your parents were neglectful. Due to being intoxicated, they often left their children to their own devices, and at times there was not enough food. The home was also reported to be squalid. You were often cared for by one of your older, teenaged, sisters. Your family moved around frequently, originally residing in Ballarat but then spending periods of time in Wangaratta, Warracknabeal, Horsham and back to Ballarat. Your family mostly lived in public housing, but at one stage your mother bought a house in Warracknabeal with money she inherited. However, the house burned down two years later because of an electrical fault.
55	Your family home was frequented by your parents’ drug using associates and was at times targeted over drug related disputes. You report you were sexually abused by your parents’ drug dealer when you were aged four or five, with one of your sisters reporting similar abuse by the same person.
56	The Department of Health and Human Services (‘DHHS’) were involved with your family throughout your childhood, with some of your siblings being removed at times. Reports indicate there were 16 notifications to Child Protection in relation to you between the ages of 2 months and 17 years, with some of the concerns being about your parents and some of the concerns being about violence by you towards your parents. Despite the frequent involvement of DHHS, you recall only being removed once yourself, where you were placed in residential care for a week when you were a teenager. You said you liked residential care because you could eat as much as you wanted, and no one yelled at you. 
57	You were often absent from the home from your mid-teens, having been kicked out by your parents with nowhere to go. Eventually, both of your parents took out intervention orders against you and you ended up couch surfing and then living with a girlfriend.
58	Your mother suffered from diabetes and ultimately passed away from associated complications when you were 19 years old. You were in custody at the time and have struggled to cope with this loss.
59	You still have some contact with your father and siblings. However, your father continues to use drugs and almost all of your siblings struggle with substance abuse and mental illness. 
60	You suffered significant conduct and socialisation problems at school. You were violent and constantly fighting other children and teachers. You had difficulty making friends. You were bullied for having holes in your shoes, being poor and unclean. You struggled academically and quickly fell behind the other children.
61	You were diagnosed with attention deficit hyperactivity disorder (‘ADHD’) as a child and were placed on Ritalin for a short period of time, but you did not take this consistently. You attended a number of different primary schools and ultimately left school during Year 8. You said to Ms Latif you hated school. You said you felt like an outsider and an idiot. You continue to struggle with literacy.
62	After leaving school, you ‘ran amuck and smoked weed’. In more recent years, you had short-term employment as a bricklayer and working in an abattoir. You said you struggled to maintain consistent employment owing to not having a ‘work ethic built into [you]’. 
63	Despite being largely illiterate, you told Ms Latif you would like to work as a gardener in the near future. 
64	You told Ms Latif your only significant relationship was with Ms Milliner, the victim of Charge 1 on the present indictment. You met as teenagers and the relationship quickly became volatile as you were both drug users. Your son, Tristan, was removed from both of your care as a three-month-old baby. You said you were in gaol at the time Tristan was removed from care and Ms Milliner was ‘hanging around drug addicts’. You met Tristan for the first time when he was two or three years of age. You told Ms Latif, upon your release from custody, you want to continue having contact with Tristan through the auspices of DHHS. You told Ms Latif you and Ms Milliner ended your relationship some years ago, but you still see Ms Milliner as your ‘only real true love’.     
65	You have been in receipt of the disability support pension since you were 17 and currently you have National Disability Insurance Scheme (‘NDIS’) funding by reason of your intellectual disability. Your NDIS plan approval was tendered at the further plea hearing.
66	You have a history of unstable accommodation, but you are currently being supported by workers from disability support services and the NDIS to locate supported accommodation where you can live independently with a number of other people while receiving daily support from service providers.
67	You have a lengthy history of poly-substance abuse which began with cannabis use as early as the age of seven. You used cannabis heavily from the age of 13 and also drank alcohol heavily. You commenced using methamphetamine when you were 16 years old and have consistently used methamphetamine and cannabis since that time. You have also dabbled in other illicit substances at various times, including benzodiazepines, ‘ecstasy’, heroin, cocaine and ‘chroming’. 
68	You denied having alcohol problems until recently. You told Ms Latif you were drinking up to one cask of wine per day or a slab of mixed spirit cans. You would drink ‘most days’ and would try to only drink at night but admitted you would sometimes drink earlier in the day. 
69	You have been diagnosed with an intellectual disability. The most recent neuropsychological assessment was conducted by Ms Susan Carey who authored a report dated 15 March 2016. She assessed you as having a full-scale IQ of 65, with a general ability index of 72. You were issued with a Statement of Disability dated 7 November 2016 under the Disability Act 2006. This remains valid.
70	Ms Carey assessed you as having moderate to severe difficulties in a number of cognitive domains including verbal and perceptual intellectual skills, working memory and higher order attentional skills, speed of information processing, aspects of new learning and memory, and executive functioning. She opines your mild intellectual disability and other cognitive impairment, especially your moderate to severe executive dysfunction, is likely to have affected your ability to make reasonable judgements, your decision-making processes, your ability to inhibit your responses and impulse control. Additionally, she notes your slowed processing speed means you are likely to have particular difficulty with these skills when in a high-pressure situation and/or when you do not have much time to respond.
71	Ms Carey observes you would have difficulty regulating your emotions and behaviour, for example, acting impulsively and aggressively, in high stress situations. Moreover, you are likely to have reduced ability to immediately appreciate the consequences of your actions when in a high-stress situation.
72	While Ms Carey opines your intellectual disability is likely to have always been present, you are likely to have had an exacerbation of problems in processing speed, executive functioning and memory due to substance use. She also notes that your intellectual disability and executive dysfunction significantly increase your risk of substance use relapse.
73	Ms Carey further opines you may experience difficulty managing aspects of a prison environment or meeting the conditions of a community correction order (‘CCO’) as a result of your cognitive deficits. In particular, she says you will be slow to learn the rules and routines of the prison or the conditions of a CCO but will be able to do so with repetition. You will also struggle to attend to and remember detailed information provided only once and therefore may struggle to follow lengthy instructions. Consequentially, you require clear and concrete instructions and repetitive tasks. Ms Carey notes that you will be vulnerable to forgetting future intentions (such as appointments) without the assistance of external aids.
74	Ms Carey states you would likely respond well to the inherent structure of a prison environment; however you may experience difficulty adjusting to the unstructured nature of everyday life upon your release as a result of your executive deficits.
75	Collateral information suggests you may suffer from foetal alcohol syndrome, with other information suggesting your intellectual disability has been compounded by both developmental trauma and prolonged substance abuse.
76	Although you do not currently report any formal mental health diagnoses other than ADHD, you have clearly been plagued by mental illness since your childhood. You report a number of suicide attempts, with the first occurring at the age of seven or eight where you attempted to hang yourself. At around 14 years of age you cut your wrists and attempted to set yourself on fire, and while in a youth detention centre you attempted to electrocute yourself in a bath. Your most recent suicide attempt was in custody at Fulham Correctional Centre where you again tried to hang yourself. You were prescribed Seroquel and antidepressants at some point whilst in youth detention.
77	Collateral information from previous psychological reports indicate that you have had episodes of engagement with the Child and Adolescent Mental Health Service in 2005, at age seven, and again when you were aged 12. In the past, you have been variously diagnosed as satisfying the criteria for an oppositional defiance disorder, a major depressive disorder, post-traumatic stress disorder, a severe conduct disorder and a substance use disorder.
78	Ms Latif, who assessed you in May 2021 and authored a report dated 28 May 2021, administered psychometric testing and the results revealed you are currently suffering extremely severe levels of depression, extremely severe levels of anxiety and severe levels of stress. Ms Latif opined while elevations on this measure are expected in a custodial setting, your results indicated you are currently suffering metal health issues.
79	Ms Latif also assessed you against the Difficulties in Emotional Regulation Scale and the results indicate you suffer from severe problems in all areas of emotional regulation. Your most serious areas of concern are a lack of emotional awareness, a lack of emotional clarity and non-acceptance of emotional responses. 
80	Ms Latif also assessed you using the State Trait Anger Expression Inventory – 2nd Edition and the results showed you suffer from significant and chronic anger management issues. You feel angry and frustrated much of the time. Your testing profile indicated you are likely to express your anger physically at substantial cost to both yourself and your relationships with others. 
81	Ms Latif opines you satisfy the clinical criteria for the following diagnoses:
a.		alcohol use disorder; 
b.	cannabis use disorder;
c.	stimulant use disorder;
d.	schizoaffective disorder (depressive type); and
e.	borderline personality disorder.
82	So far as the present offending is concerned, Ms Latif opines: 
Mr Keating’s personality disorder characteristics, namely poor impulse control, poor emotional regulation and his poor socialisation due to a dysfunctional childhood contributed significantly to his poor conduct. 
Given his personality disorder and significant mistrust of authority, Mr Keating is likely to go from ‘0 to 100’ when confronted by police out of fear, defensiveness and mistrust. It is unlikely at the time of the offending that Mr Keating was exercising consequential thinking and making calm, rational decisions given his inability to regulate intense emotions especially as they pertain to fear and anger. Mr Keating’s use of alcohol, methamphetamine and cannabis alongside a previously diagnosed intellectual disability likely reduced his decision-making abilities further.
83	In relation to your time in custody, Ms Latif noted you are currently experiencing a depressive episode in custody, and you are also experiencing heightened levels of anxiety and stress. You reported to Ms Latif you were experiencing auditory hallucinations in custody. Considering your complex psychological diagnoses, for which you are not medicated; your previous suicide attempts while in custody; your history of depression, trauma, attachment issues and your entrenched personality disorder and hallucinations, Ms Latif opines that your ‘ability to undertake a custodial sentence will be more burdensome than someone who does not present with these same issues’. She opines you are likely to deteriorate over time, especially while you remain unmedicated.
84	Ms Latif is of the opinion that it is unlikely you will be able to access the treatment you need for your complex psychological needs in a custodial setting. She makes a number of recommendations for treatment at paragraph 101 of her report.
85	Accordingly, I am satisfied Verdins principles 1 to 6 are all engaged in your case.
Prior Criminal History
86	You have a relevant and extensive prior criminal history which dates back to 23 June 2014, when you were aged 16, where you appeared in the Ballarat Children’s Court and you were placed on probation for six months without conviction for offences comprising contravene family violence intervention order (one charge), criminal damage (two charges) and unlawful assault (one charge). Overall, your criminal history comprises 35 offences involving actual violence or the threat of violence and 12 offences involving breaching or contravening court orders, including bail conditions.  
87	Particularly concerning is you have one prior conviction of persistent contravention of family violence intervention order (‘FVIO’) and seven prior convictions for contravene FVIO. You have one prior conviction for affray, four prior convictions for make threat to kill, two prior convictions for intentionally cause injury, two prior convictions for recklessly cause injury, 16 prior convictions for unlawful assault and a number of other convictions for assault emergency worker on duty, assault by kicking, assault with a weapon, and resist emergency worker on duty. Additionally, you have three prior convictions for contravene bail conditions and three prior convictions for commit indictable offence whilst on bail.
88	In light of this history, ordinarily specific deterrence and protection of the community would need to be given significant weight in sentencing you for the present offences. However, in light of your intellectual disability and you mental health conditions, Verdins principles operate in your case to moderate the weight I give to these sentencing principles.
Mitigating Circumstances
89	You pleaded guilty to these offences at the committal mention stage in the Magistrates’ Court. The prosecution accepts your plea was entered at the earliest available opportunity. Your plea has significant utilitarian benefit, particularly in the COVID-19 environment. The plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice. 
90	While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the pleas themselves.
91	At the age of 23 (22 at the time of the offending), you are a youthful offender. Accordingly, rehabilitation is a highly significant sentencing consideration in your case.
92	You present as being emotionally and socially immature. Young offenders often lack the degree of insight, judgment and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. The present offending reflects your immaturity in addition to the limitations imposed on you by your cognitive impairment and personality disorder.
93	Rehabilitation is the primary consideration for young offenders. In my view, you have the potential to be redeemed and rehabilitated. 
94	Moreover, you are at an age where many young people cease offending. In Boulton v The Queen, the Court of Appeal, while quoting from a submission made to the Court by Victoria Legal Aid, observed:
[R]esearch indicates most offenders “disengage from criminal behaviours when they are in their early 20s”, with relatively few becoming “life course persistent” offenders. Since “offending by a young person is frequently a phase that passes rapidly”, it is said, sentencing dispositions should avoid alienating a young person and diminishing “protective factors”.
95	Allowing you have other factors present that compound your youthfulness, which may mean you mature somewhat later than those without your disabilities, I accept you are not a lost cause, and you should be given the opportunity to rehabilitate yourself.
96	Your counsel submitted, and I  accept, the weight to be given to general deterrence also ought to be moderated on account of your youthfulness.
97	Your counsel conceded, the more serious the offending the correspondingly less is the weight given to rehabilitation. However, she submitted the offending in this case is not so serious that rehabilitation ought to be subordinated to general and specific deterrence. She also submitted this matter does not represent an escalation in offending for you given your prior convictions, some of which appear to involve seemingly unprovoked violence. I accept the force of these submissions.
98	The prosecution fairly conceded the risk of institutionalisation is a live issue in your case because of your youth, disability, disadvantaged upbringing, lack of stable lifestyle in the community, lack of pro-social connections and peer supports, mental health issues and substance abuse issues.
99	I am satisfied by reason of your intellectual disability the principles laid down by the High Court of Australia in Muldrock v The Queen apply in sentencing you for the present offending. As the Court observed, what is important is the impact the disability has on the offender and, in turn, how that impacts on the offender’s behaviour. In addressing the question of the weight to be given to general deterrence in cases where the offender has an intellectual disability, the Court said:
A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
100	Your counsel submitted your intellectual disability is significant, and general deterrence ought to be given little weight, both because of this factor and your personality disorder, because you are not an appropriate vehicle for making an example to others. I accept this is so.
101	The effect of delay is a mitigating circumstance in your case. You were arrested and remanded for this offending on 12 September 2020. It is now nearing one year and five months since you were arrested and charged.
102	As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.
103	I have no material before me regarding any efforts you have made towards your rehabilitation during this period of delay. You have been in custody since committing these offences. You have not reoffended. I accept the opportunities for you undertaking programs and educative courses are limited during the COVID pandemic.
104	So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you stress and anxiety. I take the punitive effects of delay into account in your favour.
105	The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) 	An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody). In this regard I note you recently contracted COVID-19 in custody and you spent 10 days in quarantine in St John’s Hospital at Port Phillip Prison.
(b)	As I previously observed, the inherent utilitarian value of a guilty plea is greater during the pandemic.
(c)	The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.
(d)	The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
106	Your counsel submitted all six Verdins principles are engaged in your case. However, the prosecution accepted only Verdins principles 1, 2, 3 and 4 are engaged here.
107	I accept your counsel’s submissions there is cogent evidence of mental impairment and a causal connection between the impairment and your offending conduct, such that your moral culpability is reduced, thereby reducing the weight I would otherwise give to the principle of denunciation. Moreover, I accept general  deterrence, while remaining relevant, should be sensibly moderated in your case. A person suffering from complex mental health problems and an intellectual disability is not a suitable vehicle for sending a message to others. I also accept specific deterrence, while also remaining relevant, should be sensibly moderated in your case. Finally, on the whole of the psychiatric and psychological material before me, I accept Verdins principles 5 and 6 are engaged in your case.
108	I also accept you had a deprived upbringing and you were sexually abused as a child, thereby giving rise to a high level of social disadvantage which calls for some moderation of sentence. Your counsel relied on the principles stated in Bugmy v The Queen in relation to sentencing offenders who suffered profound deprivation in early childhood. In Marrah v The Queen the Victorian Court of Appeal said:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.
109	I accept your counsel’s submissions you were born into disadvantaged circumstances, and you were exposed to violence and sexual abuse from a very early age. As Bugmy makes clear, these considerations are relevant to determining appropriate sentences in your case, notwithstanding you have a long history of offending. I take your disadvantaged upbringing into account as part of your personal circumstances. It does, in my opinion, operate to reduce your moral culpability to some extent. I will also moderate to the weight I give to general and specific deterrence in sentencing you for these crimes.
110	I also take into account your aboriginality. I have had regard to the principles laid down in DPP v Terrick to the extent they apply in your case, and I have taken account of the matters set out in the judgment of Eames JA in R v Fuller-Cust.
Application of Sentencing Principles
111	I have had regard to current sentencing practices in relation to the present charges as informed by the decisions of the High Court of Australia in R v Kilic and DPP (Vic) v Dalgliesh (a Pseudonym) and the Victorian Court of Appeal decision in DPP v Zhuang. In particular, I have considered the comparable cases your counsel referred me to.
112	While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.
113	Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences before me and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from these cases, I have sought to do so in your case.
114	The standard sentencing regime does not apply in this case. However, the offence of intentionally causing injury to C/- Crawford (Charge 3) on the indictment is a ‘category 1’ offence under the Sentencing Act (1991) (‘the Act’). Accordingly, a court must impose a mandatory sentence of imprisonment to be immediately served and, unless ‘special reason exists’, a term of not less than six months’ imprisonment must be imposed.
115	I am satisfied beyond reasonable doubt at the time of the offending C/- Crawford was an emergency worker on duty, and at all relevant times you knew he was such a person. However, for the reasons advanced by your counsel, I am satisfied on the balance of probabilities a special reason exists in your case under s 10A(2)(c)(i) of the Act because you suffered from impaired mental functioning at the time of offending due to a combination of your intellectual disability and borderline personality disorder. I also find both impairments and conditions are causally linked to the offending, and they substantially and materially reduce your culpability. I note the prosecution fairly conceded special reason exists in your case. Nonetheless, I must still impose a sentence of imprisonment on you to be immediately served for this offence in accordance with s 5(2GA) of the Act.
116	The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offences on the victims and your personal circumstances. A number of factors personal to you mean denunciation, general and specific deterrence must be moderated. 
117	You have been assessed to be of a high risk of general reoffending according to the Level of Service/Risk Responsivity tool. For this reason, and because of your extensive prior criminal history, I can only assess you prospects for rehabilitation as being highly problematic. Hopefully, with the extensive supports which will be put in place upon your release from custody, and the number of treatment options and programs available to you, your risk of reoffending will be substantially reduced.
118	In sentencing you for these offences, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society. In this regard, I particularly note the letter from Mr Ron Zarth, from Jesuit Social Services, dated 24 January 2022, in which he writes in support of you and indicates accommodation in Bendigo at Killara Care, a supported residential service, is available to you upon your release from custody. 
119	I further note the support you have received to date, and will continue to receive in the future, from Mr Rohan Devine, your NDIS Support Coordinator from The Support People, who was present online during the plea hearings. He has advised your counsel he will provide ‘one-on-one’ support to you from the day of your release from custody, and a number of other support services will be immediately available to you through your NDIS plan. 
120	Totality is a particularly relevant consideration in this case. The offending conduct formed part of a single chain of events and occurred over a relatively short period of time. Charges 1 to 5 and the related summary charge 20 occurred within a period of less than six hours. The totality principle can be given effect through substantial concurrency between the sentences imposed on individual charges. Contrary to your counsel’s submission, I do not consider an aggregate sentence of imprisonment is appropriate in this case.
121	I have had you assessed for suitability for a community correction order, and you have been found suitable. A number of treatment and program conditions have been recommended. A Disability Overview Report and a Justice Plan have also been prepared.
122	Overall, I consider sentences of imprisonment combined with a community correction order are the appropriate sentences on Charges 1, 2 and 4. By reason of SA s 5(2GA) I cannot impose that sentence on Charge 3. That will be a straight sentence of imprisonment, as will be the sentences on Summary Offences 20 and 22. Charge 5 will be a fine with conviction. I propose to impose a total effective sentence of imprisonment equal to time served of 509 days.
Mr Keating
On the charge of persistent contravention of family violence intervention order (Charge 1) you are convicted and sentenced to imprisonment for three months. 
On the charge of assaulting an emergency worker on duty – Acting Sergeant Harrison – (Charge 2) you are convicted and sentenced to imprisonment for two months. 
On the charge of causing injury intentionally – Constable Crawford – (Charge 3) you are convicted and sentenced to imprisonment for three months. 
On the charge of conduct endangering life – Constable Crawford – (Charge 4) you are convicted and sentenced to imprisonment for 14 months.
On the charge of possession of a drug of dependence (being a small quantity of cannabis possessed by you for your own use) you are convicted and fined $300. That fine is referred to the Director of Fines Victoria for collection and management.
On the charge of commit indictable offence whilst on bail (Summary Charge 20) you are convicted and sentenced to imprisonment for seven days. 
On the charge of contravene certain conduct conditions of bail (Summary Charge 22) you are convicted and sentenced to imprisonment for five days.
The sentence on Charge 4 will be the base sentence.
I direct one month of the sentence imposed on Charge 1, one month of the sentence imposed on Charge 2 and 22 days of the sentence imposed on Charge 3 are to be served cumulatively with the sentence imposed on Charge 4 and on each other. The sentences imposed on Summary Charges 20 and 22 are to be served concurrently with the sentence imposed on Charge 4. This makes a total effective sentence of one year, four months and 22 days or 509 days.
I do not consider it is appropriate to fix a non-parole period in your case.
I declare that pre-sentence detention in your case is 509 days (not including this day) and I direct that declaration be entered into the records of the Court. I make clear it is my intention that the total effective sentence I have imposed on you today is intended to be equal to the time you have already served in custody, so you are entitled to be released from custody today.
Additionally, on Charges 1, 2 and 4 you are further sentenced to a single Community Correction Order for a period of three years commencing upon your release from custody with the following program and treatment conditions:
Under SA s 48C you are to perform 400 hours of unpaid community work over three years.
Under SA s 48CA I determine up to 200 hours satisfactorily completed under the treatment and rehabilitation conditions of the order are to be counted as hours of unpaid community work.
Under SA s 48D(a) assessment and treatment (including testing) for drug abuse or dependency.
Under SA s 48D(b) assessment and treatment (including testing) for alcohol abuse or dependency.
Under SA s 48D(e) mental health assessment and treatment.
Under SA s 48D(f) any program that addresses factors related to your offending behaviour.
Under SA s 48E supervision for three years.
Under SA s 48K judicial monitoring. A judicial monitoring hearing will be conducted on Friday, 6 May 2022 at 9.30 am.
Under SA ss 47(2)(b) and 80 I direct you are to participate in the services specified in the Justice Plan dated 21 December 2021 (exhibited on the plea as Exhibit C2) for a period of two years.
Under SA s 48D(g) you are to participate in and successfully complete a men’s behaviour change program and an anger management program.
I impose a residual condition pursuant to SA s 48, you are not to consume any illicit drugs or substances during the term of the order unless they are prescribed by a registered medical practitioner.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a total effective sentence of four years  imprisonment with a minimum non-parole period of two years on Charges 1, 2, 3 4, and summary charges 20 and 22 and convicted and fined you $500 on charge 5.