Director of Public Prosecutions v Banks (a pseudonym)
[2023] VCC 291
•2 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Latrobe Valley CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANIA BANKS (A pseudonym) |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Latrobe Valley County Court sitting at Melbourne | |
DATE OF HEARING: | 17 February 2023 | |
DATE OF SENTENCE: | 2 March 2023 | |
CASE MAY BE CITED AS: | DPP v Banks (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 291 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Arson – plea after trial – cultivate narcotic plant – plea of guilty– mental health issues – deprived and traumatic upbringing – impact of delay
Cases Cited:Verdins v The Queen [2007] VSCA 102 – Bugmy v The Queen (2013) 249 CLR 571 – Newton (a pseudonym) v The King [2023] VSCA 22 – Sabbatucci v The Queen [2021] VSCA 340 – R v Merrett, Piggott and Ferrari [2007] VSCA 1 – Arthars v The Queen [2013] VSCA 258 – Tones v R [2017] VSCA 118
Sentence: 2 years and 9 months with a non-parole period of 1 year and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr David Cordy | Office of Public Prosecutions |
| For the Accused | Mr Ian Polak | Daniel Taylor Lawyers |
HER HONOUR:
Introduction
1Shania Banks, you were found guilty by a jury after trial of a single charge of arson which was committed on 27 January 2018 (Charge 1 on Indictment J13144412.3A). You now fall to be sentenced for that offence, together with a separate offence of cultivation of cannabis in the period between 1 October 2017 and 25 February 2018, to which you have pleaded guilty (Charge 1 on Indictment J13144412.2B). At the time of both offences you were 56 years of age.
2The maximum penalty for arson is 15 years' imprisonment. The maximum penalty for cultivation of cannabis depends upon the circumstances in which the offence was committed. Where the sentencing judge is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in that plant, the maximum penalty is one year imprisonment or a fine of not more than 20 penalty units or both. In all other cases, it is 15 years' imprisonment. It is common ground between the parties, and I am satisfied, that the lesser of these two maximum penalties applies in this case.
Circumstances of the Offending
Arson
3Many of the surrounding circumstances in this case were not in issue at trial.
4It was common ground at trial that both you and the victims, Vincent[1] and Janet Norris,[2] owned a house each in East Wayneside. The Norrises purchased their house at East Wayneside[3] as a holiday home in 2006. When they separated in 2010, Mr Norris moved into the house at East Wayneside and it became his permanent residence. Janet Norris remained living in the family home in the suburbs of Melbourne. Despite this arrangement there was no formal property settlement and the house at East Wayneside remained in their joint names. It was still owned jointly by Mr and Mrs Norris at the time of the arson.
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
5You purchased your house in East Wayneside in 2010 and soon after moving into your house you met Mr Norris. The two of you became close friends. At the time of the arson, you were living between your house in East Wayneside and a house you were renting in Bluefort.[4]
[4] A pseudonym
6In approximately 2014, Mr Norris's health began to deteriorate and sometime after that you became his carer. In November 2017, he became seriously ill and was admitted to hospital for several months. At that stage the Norris's house in East Wayneside had been on the market for some time, but they had been unsuccessful in selling it. Whilst Mr Norris was in hospital, he arranged for his friend and neighbour – Earl Butler[5] – to have a key to his house to allow you, the real estate agent, and his family and friends to continue to have access to the house.
[5] A pseudonym
7On 7 December 2017, after being advised that he might not survive his illness, Mr Norris discussed his affairs with you and his son, Leonard Norris.[6] Mr Norris wanted you and Leonard to work together to sort out his affairs if anything should happen to him. You engaged a solicitor to assist Mr Norris in drafting a will and a medical and financial power-of-attorney. Those documents were drafted and provided to each of Mr Norris, his son Leonard, and yourself to be signed.
[6] A pseudonym
8Sometime between 7 December 2017 and 11 January 2018, you came to the understanding that Mr Norris's home at East Wayneside was not insured. Indeed, on the evidence given by Leonard and Janet Norris at trial it became apparent that whilst Mrs Norris had taken out an insurance policy over the property on 5 December 2017, that policy was only in Mrs Norris's name, and neither you nor Mr Norris were ever advised of the existence of that policy. It is common ground that at approximately 1.24 pm on 11 January 2018 you contacted GIO Insurance and obtained a quote for house insurance for Mr Norris's house at East Wayneside. At 2.15 pm you sent a text message to Leonard Norris in which you told him that his dad needed his home and car insured whilst he was not at home, advised him as to what the monthly premium would be, and asked for bank details so that you could arrange the insurance cover. Leonard Norris did not respond because he knew that his mother already had the house insured and because he felt that it was none of your business. At 2.51 pm, you made another phone call to GIO insurance and spoke to a different consultant. You set up the insurance policy and requested that your name be on the policy as you would be paying the monthly premiums. You provided the consultant with the details of your bank account at Bendigo Bank and asked that the correspondence be sent to your home address in Bluefort. The policy was issued in the names of both you and Vincent Norris, however it is apparent that you did not stand to benefit as a beneficiary from that policy, and the evidence points to you potentially being of the understanding that the policy only allowed for a rebuild of the home rather than for a payout.
9On 27 January 2018, Vincent Norris's house in East Wayneside was engulfed by fire and completely destroyed. Mr John Kelleher, a scientist employed by the Victoria Police Forensic Science Centre who specialises in the investigation of fire and explosive scenes, gave evidence at trial that in his opinion, based on the burning pattern he observed, the fire started in the lounge room. He stated there were no obvious sources of accidental ignition in the lounge room. The house was not connected to the power grid, and the generator at the house was not connected at the time of the fire. Mr Kelleher ultimately concluded that the most likely source of ignition was direct ignition of the furniture in the lounge room by a match or cigarette lighter – albeit he did concede some other methods of ignition were possible.
10It was the prosecution case at trial that it was you who had lit the fire. The prosecution relied on a number of categories of circumstantial evidence in support of its case being that:
(a) you had allegedly removed certain items of property from Mr Norris's property prior to the fire;
(b) you had set up of the insurance policy in the names of both yourself and Mr Norris shortly before the fire;
(c) you had purchased firelighters on the morning of the fire and yet those firelighters were not found during searches conducted at each of your homes;
(d) you had allegedly asked two acquaintances to assist you in burning down Mr Norris's home;
(e) you had told a number of lies both to the insurance investigator and the police about your whereabouts at the requisite time and had asked your boyfriend to tell the insurance investigator that you were with him, when you were not; and
(f) the fire expert had concluded that the most likely cause of the fire was the direct ignition of furniture in the loungeroom by a match or cigarette.
11At trial, through your plea of not guilty, you denied, as you had previously in interviews with both an insurance investigator and the police, that you had been near the house at the requisite time. Through your counsel you raised possible alternative suggestions with the fire expert as to how the fire had started. However, it is apparent from the jury verdict that the jury ultimately accepted the prosecution contention that the fire had been lit by a person, and that that person was you.
12In sentencing you, I am dealing with you on the basis that you were the person who lit the fire at Mr Norris's home on 27 January 2018. Whilst I am unable to discern from the evidence before the court the motive for your actions, I am satisfied on the evidence that there was some level of pre-planning by you given the steps you took to insure Mr Norris's home and remove some of his belongings in the two weeks prior to the fire being lit. I will return to the gravity of your offending in due course.
Cultivation of Cannabis
13Turning to the offence of cultivation of cannabis, when police attended at your home in Bluefort on 25 February 2018, they located four cannabis plants growing in your garden.
14During your first record of interview, you admitted to planting and watering those cannabis plants. You denied using cannabis yourself and told police that you intended to give some of the cannabis to Ear Butler who was in a bad way.
Victim Impact
15Both Janet Norris and Leonard Norris made victim impact statements and read them out during the plea hearing. I did not receive a victim impact statement from Vincent Norris as he passed away a number of hours after the jury verdict on 16 December 2022.
16In each of their statements, Janet Norris and Leonard Norris detailed the impact which your conduct had had on Mr Norris and themselves. It is apparent from those statements that your conduct had considerable impact on Vincent Norris who was left, in the aftermath of the fire, with nowhere to live on his release from hospital and with very few possessions. Leonard Norris spoke about the hurt which your breach of trust had caused his father, given that you were someone who Mr Norris had relied upon, and had felt comfortable in involving in his medical and financial affairs. He also spoke about the huge toll which the long investigation and court process has had on everyone – there being a five-year period between the fire and the eventual jury verdict after trial. I have had regard to the admissible parts of each of those victim impact statements and accept that the impact of your conduct has been considerable. I have taken this impact into account when sentencing you.
Prior Criminal History
17You do have a prior criminal history which contains some matters of relevance. You have one prior offence for cultivating cannabis, for which you were sentenced (together with offences of burglary and theft) some 30 years ago. More recently, in 2015, you were sentenced on a charge of criminal damage and possessing a controlled weapon without excuse for which you received a without conviction adjourned undertaking for 12 months with a condition that you continue to seek counselling. Clearly the matter for which you fall to be sentenced today is much more serious than either of those prior matters.
18You do have some other matters in your prior history which have little, if any, relevance, in my view, to this sentencing exercise but which were specifically referred to by your counsel. In early 2007 you were sentenced for a number of offences for which you received terms of imprisonment, the most serious being a charge of dangerous operation of a motor vehicle for which you received a term of imprisonment of three years with a parole release date set for only two days after sentence. That offence was committed in 1987 and related to an incident where you were driving and were involved in a collision which killed a cyclist. Your counsel submitted that prior to this sentence being imposed you had been in custody on remand for approximately two years for other serious unelated offences which were later withdrawn. A lost warrant was then located in respect of the driving offence and you pleaded guilty to the offence. The time which you had already served on remand on the other matters was then attributed to the sentence on the dangerous operation of a motor vehicle charge and you were almost immediately released on parole.
19Mr Polak submitted that in the circumstances I could treat some of the time which you spent on remand between 2005 and 2007 as ‘Renzella’ time. I do not agree with Mr Polak's submission. It is not for me to make a determination as to whether the sentence imposed by a sentencing judge in the Brisbane District Court was an appropriate sentence. The time which you spent in custody between 2005 and 2007 has been fully attributed to the sentence which was imposed in 2007, and as such there is no 'dead' time which I could take into account in your favour when sentencing you in respect of your current offences.
Guilty Plea – Cultivation of Cannabis
20As I have already noted, you pleaded guilty to the offence of cultivation of cannabis, having made full admissions to police in your record of interview as to your conduct. The prosecution concedes that your plea on that charge should be treated as an early plea of guilty and I agree with that submission. Your plea facilitates the course of justice and has utilitarian value which is enhanced in the current circumstances of the pandemic. I am also of the view that your plea demonstrates remorse and an acceptance of responsibility for your conduct in respect of the cultivation charge. Accordingly, I am satisfied that you are entitled to a substantial discount on your sentence for the cultivation charge by reason of your plea of guilty and I have factored this into the sentence which I am going to impose on that charge.
21Of course, the fact that you pleaded not guilty in respect of the arson charge does not lead me to increase the penalty I would have otherwise imposed upon you for that charge. Rather, you lose the benefit of the substantial discount which you would have received had you pleaded guilty to the charge prior to trial. Similarly, given that you maintain your innocence in respect of the arson charge, I am also unable to mitigate sentence on the arson charge on the basis of remorse.
Gravity of the Offending
22Turning now to the gravity of your offending.
23Arson is an objectively serious offence as reflected in the maximum penalty of 15 years' imprisonment. Further there are a number of features of this arson which make it a serious example of the offence, irrespective of the inability to identify a particular motivation for your offending.
24You deliberately set light to somebody's home in the middle of summer, on a hot day, in a regional area. This was a particularly dangerous thing to do, and fortunately for those in the East Wayneside community, the fire did not spread further than Mr Norris's home. There was a level of pre-planning involved as reflected in the steps which you took to put in place an insurance policy and to remove some of Mr Norris's items from the home. Further the damage which you caused was significant both in terms of monetary and personal value, with Mr Norris's home being completely destroyed in circumstances where he was in hospital and reliant upon you and others to assist him with his affairs. Given the gravity of your offending, I must give weight to each of the sentencing purposes of specific and general deterrence, that is deterring you and other members of the community from acting in a like matter, denunciation and protection of the community, in sentencing you.
25By contrast, your conduct in cultivating the four cannabis plants at your home falls at the lowest end of seriousness for such offences. As conceded by Mr Cordy on the plea, if that charge was being heard on its own in the Magistrates' Court your conduct would be unlikely to attract anything more than a fine by way of penalty.
Personal Circumstances
26You are now 60, almost 61, years of age.
27You grew up in a household with your mother, father, five brothers and two sisters. You were the middle child and the youngest girl amongst your siblings. Life at home was difficult. Both of your parents were heavy drinkers and your mother was physically and emotionally abusive towards you and your siblings. You regularly had items thrown at you, were beaten and were verbally belittled, and on one occasion your mother burnt you with a pan.
28You had little reprieve when you were at school as you struggled both socially and academically and were the subject of bullying by other students. You report that you left school in Grade 5 and started working on your parents' farm. It was in this period that you first started to drink, often drinking the leftovers from your parent's parties.
29You ultimately left home at 15 years of age, and because you did not have anywhere to go you started to work in a brothel, in a sexual capacity, and lived with the brothel keeper and his wife. You had had no experience of sexual activity prior to this and were still underage when you started to work. You did this work for approximately 18 months before leaving and trying to find other accommodation and employment. You found it difficult to make enough money to pay rent or buy food and you ultimately returned to sex work, working at a strip club. By this stage you were drinking regularly, and most evenings you would end up highly intoxicated.
30After a couple of years, you again attempted to find other work and undertook an apprenticeship in the hospitality industry. You qualified as a chef and continued working as a chef for some eight years until you suffered a heart attack in your late thirties. Since that time, you have been on a Disability Support Pension and unable to work, although you have at times assisted elderly people with cooking and cleaning on a volunteer basis.
31You have had several relationships throughout your life, however the longest consistent relationship you have had was with the father of your son Gareth Banks.[7] You were married for three years and separated when Gareth was one year old. Gareth is now 33 years of age and is married with four children. He is supportive of you and provided a letter to the court[8] in which he spoke about the care and attention you showed to him when he was growing up, as well as the assistance and care you have been providing to his four young children over the past two years.
[7] A pseudonym
[8]Exhibit 9.
Mental Health Issues
32A number of documents regarding your mental health were tendered on the plea. In particular I received a psychological report authored by Dario Sizenko and Pamela Matthews,[9] a series of extracts from the medical record progress notes of Clareburn Bay Community Health,[10] [11] a number of discharge letters from Kinsey Regional Hospital,[12] [13] a counselling report from Ms Bronwyn Simpson,[14] and a treatment plan for electro-convulsive therapy.[15]
[9] Exhibit 7.
[10]Exhibit 1.
[11] A pseudonym.
[12]Exhibits 2, 3 and 5.
[13] A pseudonym.
[14]Exhibit 4.
[15]Exhibit 6.
33The extracts from the progress notes from Clareburn Bay Community Health commence in August 2014 and record issues experienced by you at that time in respect of an assault in which your finger was broken; your retaliation to that assault which resulted in the offences for which you were sentenced in 2015; and pre-existing mental health issues identified as post-traumatic stress disorder ('PTSD'), anxiety and depression. Towards the end of August 2014, you were prescribed temazepam to assist you with sleep, and were referred for counselling.
34The remainder of the documents tendered regarding your mental health post-date your offending. The records identify that in the aftermath of your offending your mental health deteriorated and you attempted suicide on a number of occasions.
35On 27 February 2018 you intentionally overdosed on quetiapine.[16] This medication had been prescribed for you by your doctor only three days previously.[17] You were located by police in an unconscious state when they attended to conduct a welfare check and were taken by them to the East Wayneside Emergency Department. The discharge summary from Kinsey Regional Hospital for this admission[18] notes that this was your third suicide attempt in four days in response to psychosocial stressors and forensic issues relating to the arson. You were admitted to the Heath High Dependency Assessment Unit[19] on 28 February 2018 and were not discharged from hospital until 20 March 2018. Whilst you were an in-patient at the hospital you had four sessions of electro-convulsive therapy ('ECT') to address your ongoing suicidality. You were assessed to be safe for discharge on 19 March 2018 and it was determined that no further ECT sessions were needed at that time.
[16]Exhibit 5.
[17]Exhibit 1.
[18]Exhibit 5.
[19]A pseudonym.
36On 12 April 2018 you were readmitted to Kinsey Regional Hospital for approximately a week after self-presenting to the hospital with increased suicidal ideation.[20] On this occasion your symptoms were thought to be triggered by an impending court case for the custody of your grandson which was scheduled for May 2018.
[20]Exhibit 2.
37In the aftermath of this admission, you were referred by your doctor to Bronwyn Simpson for counselling. A letter prepared by Ms Simpson for your doctor, dated 28 December 2018,[21] confirmed that you attended five counselling sessions with Ms Simpson between May 2018 and September 2018 with the presenting issues including major depression, recent suicide attempts, chronic suicidal ideation and a history of PTSD diagnosed in August 2014. Ms Simpson advised that whilst you had symptoms consistent with PTSD you had made it clear that you did not wish to address your past trauma and accordingly counselling focused on your strengths and values rather than dealing with trauma. You were exited from that treatment in December 2018 due to having disengaged from counselling.
[21]Exhibit 4.
38On 14 January 2019 you again attempted suicide, this time by taking an overdose of oxycodone.[22] You were initially taken to East Wayneside Hospital where you received a naloxone infusion, before being transferred to the acute psychiatric unit at Kinsey Regional Hospital. It is not apparent to me from the materials which were tendered on the plea as to how long you remained in the acute psychiatric unit on that occasion. Subsequent to your release it appears that a plan for you to undertake a series of electroconvulsive therapy sessions was established, with sessions scheduled between 5 April 2019 and 6 September 2019.[23] However, again, it is not apparent to me on the material tendered on the plea whether you engaged in all, some, or none, of those proposed sessions.
[22]Exhibit 3.
[23]Exhibit 6.
39As already noted, in addition to the medical records pertaining to your mental health, I also received a report authored by Daria Sizenko (Provisional Psychologist) and Pamela Matthews (Forensic Psychologist).[24] Whilst that report is dated 8 March 2020, it seems logical that it was in fact written in March 2022 given that the date you were assessed by the authors is identified as 15 February 2022, and the report appears to have been prepared for the purposes of a sentence indication in this matter which was heard in March 2022. Ms Sizenko and Ms Matthews identified that as at March 2022 you were suffering from PTSD relating to the accident with the cyclist, the sexual abuse you suffered whilst living at the brothel, and your later sex work; and major depressive disorder; as well as meeting the criteria for borderline personality disorder ('BPD'). The authors were of the opinion that your abuse and neglect throughout childhood, and further sexual abuse and grooming as a teenager are factors that could have predisposed you to BPD – in addition to being the precipitating events for your PTSD.
[24]Exhibit 7.
40In terms of treatment, the authors were of the view that it is likely that your symptoms of PTSD, BPD and depression are interrelated and accordingly it would be necessary for treatment to be delivered concurrently. They were of the view that you would require significant therapeutic support with managing the effects upon you of routine abuse and sexual exploitation throughout your life, and suggested that you may benefit from engagement with the Centre Against Sexual Assault. Moreover, Ms Sizenko and Ms Matthews were of the opinion that your mental state would be likely to deteriorate in custody, that you would be likely to find your time in custody quite onerous, and that you would be in need of ongoing assistance within the custodial environment.
41Mr Polak submitted that given your difficult and deprived background and your mental health problems that the principles established in the cases of Verdins v R [2007] VSCA 102 (‘Verdins’) and Bugmy v R [(2013) 249 CLR 571 (‘Bugmy’) are relevant to this case. In particular, Mr Polak submitted that not only would your time in custody be more onerous by reason of your mental health difficulties, but further the fact that you had undergone ECT signifies that you were experiencing significant mental health difficulties which would have impacted upon your moral culpability. Mr Polak submitted that even though the psychological report makes no reference to such a conclusion, I would be entitled to independently draw this conclusion from the medical material before the court.
42By contrast Mr Cordy submitted that the material before the court does not establish a causal link between your mental health issues and your offending. However, he conceded that the court could, on the basis of the material before it, give some limited weight in sentencing to both the impact of your childhood deprivation upon you, and the fact that you will find custody more onerous by reason of your mental health issues than someone without those same issues.
43In Bugmy, the High Court explained the two different ways in which childhood deprivation may potentially be relevant to the assessment of moral culpability – the first is a generalised way – not requiring any causal link – where the circumstances of deprivation may mitigate sentence because the offender's moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that same way. The second is more specific and requires a causal link between the circumstances of the deprivation and the offending conduct.[25] Whilst the High Court observed in Bugmy that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, there is not a requirement that childhood deprivation must be 'profound' before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability.[26] As stated in Sabbatucci v The Queen [2021] VSCA 340:
whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered, and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[27]
[25]Bugmy at pp 494-495. See also Newton (a pseudonym) v The King [2023] VSCA 22 at [36]-[46].
[26]See, eg, Newton (a pseudonym) v The King [2023] VSCA 22, [37].
[27]At [6].
44Turning to the principles in respect of the relevance of mental health issues in sentencing, in Verdins the Court held that impaired mental functioning, whether temporary or permanent, is relevant to sentencing in at least six ways:
(i)the condition may reduce the moral culpability of the offending conduct as distinct from the offender’s legal responsibility;
(ii)the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it is served;
(iii)whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;
(iv)whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;
(v)the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and
(vi)where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
45As I raised with Mr Polak on the plea, there is no material before me which would allow me to come to the conclusion that there is a causal link between your mental health issues and your offending. Further, the material which I have before me does not allow me to come to the conclusion that there should be any reduction in the weight to be given to general or specific deterrence by reason of your mental health.
46I do however accept on the material before me that you had a very difficult and deprived upbringing which was punctuated by physical, verbal and sexual abuse. I am satisfied that your childhood experiences have had a detrimental and traumatic impact upon you causing instability in your mental health, affecting your ability to develop appropriate relationships, impacting upon your personality structure and contributing to your recourse to alcohol rather than counselling as a coping mechanism. As a result, I accept that your childhood deprivation is relevant to an assessment of your moral culpability in the general sense identified in Bugmy and I am of the view that there should be a modest reduction in your moral culpability by reason of that deprivation.
47Further, despite not having a completely up to date psychological report, I am satisfied – given the long history of your mental health issues and the impact they have had upon you in that time – that your mental health issues will make your time in custody more onerous than someone who is not facing those same issues. This conclusion appears to be supported by the matters raised by Mr Polak on the plea in terms of your distress at purportedly not receiving responses to multiple requests for medical and mental health assistance since being remanded. I note that Mr Cordy, on behalf of the prosecution, conceded that some limited weight could be given to this aspect in sentencing. Accordingly, in sentencing you, I have taken into account that any time in custody which you serve will be more burdensome upon you by reason of your mental health issues.
Delay and Prospects of Rehabilitation
48It is now some five years since you committed these offences. You were not charged until December 2018, and the matter was listed for a contested committal hearing in August 2019 but was adjourned to December 2019, whereupon you were committed to this court. A further almost three years then passed in the matter being brought to trial – in large part due to the impact of Covid-19 on the smooth running of the criminal justice system. This is, by all measures, a substantial delay.
49It is well established that a significant delay between the time that an offender is charged, and delay between the laying of charges and trial, can be a powerful mitigating factor where that delay occurs through no fault of the accused. I note that the fact that an offender exercises their right to contest criminal charges will not be considered the fault of the offender for the purposes of considering the effect of the delay on them, and the extent to which the delay is mitigatory.[28]
[28]See, eg, R v Merrett, Piggott and Ferrari [2007] VSCA 1, [35]; and Arthars v The Queen [2013] VSCA 258, [27].
50There are two limbs to delay as a mitigatory factor. The first limb concerns unfairness to the offender in the sense that the relevant charge has been hanging over the offender's head and causing him or her anxiety. The second limb concerns whether, during the period of delay, the offender has made progress towards rehabilitation and whether there are good prospects of rehabilitation. This second limb has two aspects – first, whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse; and second, whether the offender has taken steps to reform, including by seeking counselling or other professional assistance, refraining from committing further offences and being a valuable member of the community. Both aspects of rehabilitation must be demonstrated in order for the court to give full weight to that limb.[29]
[29]See, eg, Tones v R [2017] VSCA 118, [42].
51In my view it is clear from the material before me that the delay in this matter coming to a conclusion has caused you considerable anxiety and has taken a considerable toll on your mental health. That impact is a relevant matter in mitigation of sentence. Accordingly, I have taken into account as a mitigating factor that you have had the weight of this matter, and the uncertain suspense as to the possible consequences, hanging over your head since 2018.
52Further, I am told that since this offending (but prior to being charged) you have only had one subsequent criminal matter which was dealt with in June 2018 and for which you received an adjourned undertaking. That matter related to you breaching an intervention order by sending text messages to Mr Norris. Otherwise, there has been no further offending and you have no pending matters. Accordingly, you have now been offence-free for over four and a half years. In that time, you have also engaged in supporting people in the community, especially the elderly, as evidenced by the references of Mr McDonald and Mr Ampt which were tendered on the plea. Further, since being remanded in custody you have commenced working in the kitchen and have undertaken some preliminary courses in areas such as self-reflection, conflict resolution and healthy relationships as evidenced by the certificates tendered on the plea.
53I accept that these matters are relevant matters to take into account when assessing both the effect of the delay and your prospects of rehabilitation. Clearly, I am not able to give full weight to rehabilitation as a mitigating factor in circumstances where there is no acknowledgement of, or remorse for, your offending in respect of the arson charge. However, I am of the view taking into account all of the material before me that you have commenced on a path of rehabilitation during the period of delay, and that you do have reasonable prospects for rehabilitation. Accordingly, I have placed some limited weight on this aspect of delay as a mitigatory feature in your case.
Burden of Imprisonment – Covid 19, Medical Issues and Age
54Mr Polak submitted on your behalf that I should also take into account in sentencing as a mitigating factor the increased burden of imprisonment upon you by reason of your age, medical issues and the ongoing restrictions in place due to COVID-19. On being remanded into custody, and again on the plea, I was advised that you have high blood pressure and diabetes for which you are ordinarily medicated and for which you are having some troubles in gaining your medication. You also have ongoing pain in your hip arising from a hip replacement operation which you have had in recent years. Additionally, you are 60 years of age and you have been remanded into custody in circumstances where there are still some limited restrictions in place due to the pandemic, and still some concern as to health considerations whilst in custody.
55Whilst in his written submissions Mr Polak referred to the 'extreme difficulty of treatment or rehabilitation in custody during Covid', the current situation in relation to COVID-19 restrictions in custody is very different to that which was in place during the last two years. Quarantine at the time of remand is limited to one to two days (the time it takes to return a negative Covid test) rather than the one-to-two-week isolation period previously in place. In-person visits from family and friends have largely resumed and lockdowns as a result of COVID-19 are less common. Further there has been a resumption of education, rehabilitation and work opportunities – albeit in a more limited capacity than pre-Covid. Whilst, in my view those difficulties could not accurately be described as 'extreme' or even 'substantial' at this current period of time, I do accept that the concern or anxiety of a person in custody as to their own health in respect of Covid may still be present due to a prisoner's inability to control their own environment. I also accept that there may be some limited impact on a person in custody due to the limitations which still remain over education and rehabilitation opportunities.
56Overall, I accept that the combination of these factors, together with your age and medical issues will add, to a very limited extent, to the burden of your imprisonment. I have taken this added burden of imprisonment into account in your favour.
Sentencing Submissions
57Turning now to the sentencing submissions made by each counsel. Mr Cordy submitted that given the gravity of your offending, a term of imprisonment with a head sentence and a non-parole period would be the only type of sentence which would be capable of meeting each of the sentencing objectives of denunciation, specific and general deterrence and community protection in this case.
58Mr Polak by contrast submitted that a sentence which combined a term of imprisonment and a community correction order would be an appropriate sentence in all of the circumstances. In particular, Mr Polak identified that such a sentence would not only meet the punitive purposes of sentencing, but would also allow you to obtain appropriate treatment for your mental health, and may (depending upon the length of the period of incarceration) allow you to have access to housing on your release.[30]
[30]Mr Polak identified that Ms Banks’ housing would only be held available for her by the Department for 6 months. If she was to be imprisoned for longer than 6 months then she would be likely to lose her housing.
59Neither counsel was able to provide me with any comparable cases due to the somewhat unusual nature of your offending in this case.
Sentence
60As I identified during the plea hearing, I am of the view that even in light of the mitigating circumstances in this case – including the impact of the considerable delay – the gravity of your offending on the arson charge combined with your inability to call in aid a significant discount on sentence for pleading guilty and exhibiting remorse, is such that the only appropriate sentence in this case is a term of imprisonment with a head sentence and non-parole period. A combination sentence in my view – even in circumstances where your moral culpability is moderately reduced by Bugmy considerations – would not adequately meet the sentencing purposes of general deterrence, specific deterrence, and denunciation. However, bearing in mind the mitigating factors in this case and the steps which you have taken to date towards rehabilitation, in setting the head sentence and non-parole period in this case I have endeavoured to impose a sentence which provides you with an opportunity for an extended period of time under supervision in the community on parole. I have also been mindful that the sentence still needs to be an appropriate sentence if you were required to serve every day of it in custody.
61Ms Banks, on Charge 1 on Indictment J13144412.3A, arson, you are convicted and sentenced to a term of imprisonment of 2 years and 10 months.
62I direct that you serve a minimum of 1 year and 8 months before becoming eligible for parole.
63On Charge 1 on indictment J13144412.2B, cultivation of cannabis, taking into account (amongst other things) your plea of guilty, the principle of totality, and the low level of seriousness of this offending, you are convicted and discharged pursuant to s73 of the Sentencing Act 1991 (Vic).
Pre-Sentence Detention
64The period of 76 days, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
Ancillary Orders
65Pursuant to s78(1) of the Confiscation Act 1997 (Vic), I make a disposal order in respect of the four cannabis plants seized in this matter.
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