Director of Public Prosecutions v Blacker

[2016] VCC 2011

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-16-00669

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE BLACKER

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2016, 13 December 2016
DATE OF SENTENCE:	19 December 2016
CASE MAY BE CITED AS:	DPP v Blacker
MEDIUM NEUTRAL CITATION:	[2016] VCC 2011

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N. Cescato	Office of Public Prosecutions
For the Accused	Ms M. Stlyianou	Doogue O’Brien George Solicitors

HER HONOUR:

1       Luke Blacker, for some years you had lived opposite a bushland park with an understory of native grasses.  Just over 12 months ago, on 29 November 2015, in broad daylight and in clear view of the CCTV cameras you knew were installed on the front of the house next door, you drove across the road, got out of your car, climbed the fence into the park, bent down, and, with apparently a single application of flame from a cigarette lighter, set fire to the grass in that parkland directly opposite your house.

2       You then drove down the street and returned home about a minute later.  By then the fire had taken and smoke was visible.  You called emergency services, reported the fire and fire crews soon arrived and managed to extinguish the fire before it had had time to travel more than 25 metres in any direction from the point of ignition.

3       That was fortunate, because it was a windy day.  Records show moderate to strong  southerlies, up to 25 km/h,  and the park where you lit the fire is bordered by houses, including your own, whilst further in it is wooded and there are bike and walking paths, well known to be regularly used by families and dogs.

4       You were arrested a short time later at your home, still wearing the clothes that you had been seen wearing on the CCTV footage.

5       When interviewed, you initially denied any involvement, presenting yourself as simply someone who had happened across the fire soon after it started and who had called the fire brigade.  Later in the interview, you said you would not have lit it deliberately, that you were not that kind of person, that you knew lighting fires in grassland was dangerous.  Later again, you acknowledged that you had probably lit the fire, but then said it was accidental, an honest mistake.

6       Towards the end of the interview, you made reference to the fact that it was well known there were snakes in the park and expressed some concern about the fact that the council had not done anything that year to keep the grasses down to reduce the risk of snakes coming through that grass and either attacking park users or crossing the road to the houses, including yours, on the other side of the road.

7       You have now pleaded guilty to one charge of arson, an offence now specifically known as intentionally causing a bushfire.  It is obviously a serious offence and that is marked, in part, by the maximum term of imprisonment available, 15 years.

8       Everyone in this State, indeed in this country, is acutely aware of the devastating effect of bushfires, or of the devastating potential effect of bushfires, how quickly they can run, of how unpredictable their path can be, of their destructive force, of the destruction, often irreplaceably, of bushland, pasture, livestock and native animals, farms and businesses.  But most significantly, everyone in this country is aware of how terrifying it is to imagine being caught in its path and to fear death, or living with the grief of the loss of family, friends or strangers.

9       It is clear therefore that subject to considerations personal to you, denunciation, just punishment and deterrence, both general and specific, as well as protection of the community, are significant factors to consider in the sentencing mix.

10      

You were 41 years of age at the time, a mature adult.  You are now 42.  You have no history of fire setting.  Apart from a minor criminal damage charge when you were about 20, which was not related in any way to fire and the gravity of which can be assessed to some extent by the fact that you received a

non-conviction bond to be of good behaviour for a period of 12 months, you had not come to the attention of police or the courts until you were 40.

11      In that intervening time, you had consolidated on the good, steady employment record that you had commenced upon leaving school at the end of Year 9.  Your work was predominantly in construction, predominantly as a concrete renderer, working in high rise construction.  That is a skilled and often dangerous occupation.  You had fathered a child when quite young and although the relationship with her mother had come to end end, you then entered into a more permanent relationship with your wife,  which continues today.

12      You and your wife married, you bought a house together and your future looked promising.  You had good marriage and good employment, as did your wife.  You were establishing a home together and planning a family.  There were no problems of substance abuse, mental illness, violence or other bad behaviour to mar what looked to be a promising and happy future panning out ahead of the two of you. 

13      But in 2008, your first child, a son, was born prematurely and he died only two days after his birth.  You struggled to come to terms with that loss and alcohol abuse, which had never before manifested itself, became a problem for you. Nonetheless, you continued to work, a further pregnancy resulted in the birth of a healthy child and you appeared to be coping with the loss of your firstborn.

14      

Then, in 2012, you fell off a dangerous scaffolding at work and you suffered

a serious injury to your cervical spine.  You developed a chronic, debilitating pain response, as well as suffering the physical consequences of that injury.  That, in itself, had an knock-on effect, not only in significant pain, discomfort and restriction of movement and restriction of ability in your cervical spine, but also to your lower lumbar region.  For somebody whose work had been skilled but physical, it was a debilitating and life-changing injury. 

15      

You were prescribed, because of the level of severity of your pain, opioid pain relieving medication and then because of the psychological or psychiatric consequences of the pain, you were also prescribed Valium and other

anti-depressant and anti-anxiety medications.  You were unable to return to work and you began taking the prescribed medication at alarmingly high levels.  It would now appear on the material before me, much in excess of the prescribed dosages.  If that was not enough, you added alcohol to that mix of drugs.

16      Your wife, clearly long suffering, has been and continues to be very supportive of you and a very good influence on you.  You ultimately have been prepared to heed her advice, as she tried to wean you off, or at least reduce your intake of the prescribed medications.  Whilst you are obviously much more amenable to the advice and wise counsel that she is able to give you now, she was initially not so successful. 

17      In December 2014, as a result, it would appear, of suddenly going off all of your prescribed medication at the well in excess of prescribed levels, you suffered a form of seizure, fell over and knocked your head and were taken to hospital.  Whilst it did not seem that you suffered any significant long-term physical consequences, there was a concern that you may have suffered some cognitive impairment as a result of the fall.  It would appear on the material before me now that what cognitive difficulties you faced thereafter, seemed to be more a product of the abuse of the prescription medications and the impact on you of the pain and of the depression and anxiety from what you were facing, rather than a permanent or long-term cognitive disability, resulting from a head injury as a result of a fall. 

18      Then in February 2015, you were again taken to hospital, this time for an emergency mental health assessment.  You were, at the time, under the influence of both alcohol and the prescribed medication, but again, being taken at dosages well above the prescribed levels.  You had had an argument with your wife and she had left the house, taking your son with you and called for emergency assistance for you.  You had threatened to kill yourself using a gun that you lawfully owned and had previously used for hunting and which you had, under the influence of that terrible cocktail of drugs and alcohol, retrieved from its safe storage.  In your substance befuddled state, you had decided that you would shoot out the street light before turning the gun on yourself.   As a result of your wife's call for help, police arrived, after you had shot at the light, but  before you could do any harm to anybody else or to yourself.

19      

Although taken to hospital for an emergency assessment, you were not unwell enough to be admitted for inpatient treatment and you were referred back again to the mental health professionals, by whom you had previously been treated.  Again, it would appear, medication, rather than extensive talking therapy, was what was offered, or at least was what you were prepared to engage in and accept.  Whilst your risk of harm to yourself of to others abated, your

self-medication or your abuse of the prescription medication that you obviously needed, did not.  

20      As a result of that incident, in May 2015, you pleaded guilty in the Magistrates' Court to one charge of reckless conduct endangering serious injury.  You were then placed on an 18 month Community Corrections Order.  At the time of that sentence, it appears that either alcohol was perceived to be the main contributor to your disinhibited behaviour, or at least what you were, at that stage, prepared to acknowledge was the main contributor to your disinhibited behaviour.   So the Community Corrections Order that was imposed upon you was conditioned upon you receiving alcohol abuse assessment and treatment, mental health assessment and treatment and participation in offending behaviour programs, but not programs related to drug abuse, that is, abuse of prescription drug medication.

21      It was seven months into that community corrections order that you committed this offence.

22      Again, as with the reckless conduct endangering serious injury charge, you pleaded guilty to this charge and did so at the earliest opportunity.  That plea came on for hearing before me in July of this year.  I was then presented with a considerable body of materials documenting the injuries that you had sustained in the workplace accident, the psychological, as well as physical response to it, and the consequences, in terms of the chronic pain management issues and the overuse or abuse of your prescription medication.

23      

In addition, a lengthy neuropsychological  report was provided, prepared by

Mr Martin Jackson and commissioned for the purposes of the plea.  Although helpful in many respects, it suffered, in my view, from two significant defects. First, it accepted, at face value, your self-report, even where that appeared to be at odds with the agreed summary, the depositions, or other materials placed before me by your legal advisors and that, I should say, was clearly material that had been presented to Mr Jackson and he was provided with for the purposes of his assessment.  And secondly, although the report addressed a series of questions based on Verdins, it did not address the question of your risk of engaging in fire-setting behaviour or other behaviours likely to endanger the public.  That appeared to me to be a significant issue, given that you were only seven months into the CCO for the previous dangerous behaviour at the time that you committed this offence. 

24      Mr Jackson  concluded you had a history of depression and anxiety related to traumatic events that had occurred in your life, particularly the death of your firstborn and the workplace injury.  He was of the opinion that you had suffered a significant cognitive impairment at some stage between December 2014 – that is, the time of your admission to hospital following the seizure and the striking of your head – and June 2016 when he assessed you.  That was based, first of all on the history of the seizure and on the manner in which you had presented to Mr Jensen, the musculoskeletal surgeon who you have been consulting in respect of your workplace injury and who had reported you to be a very poor and rambling historian when he saw you in May 2016, in marked contrast to the way you had presented when he had previously seen you.

25      In fact it would appear that all reports up to the time of your admission to hospital following that seizure had indicated that you were able to give a reasonable history of yourself, but by May 2016, Mr Jensen had noted you to be rambling, having difficulty giving a history and appearing to present with some form of cognitive impairment.  It was in December 2014 you had suffered the seizure, fallen and struck your head.

26      Mr Jackson said that it was unclear whether your cognitive impairment was related to recent medication use or to something more permanent.  His report makes it clear that he appears to be very sympathetically disposed towards you, but unfortunately I considered his report to have been lacking in sufficient objectivity to consider that I could always confidently rely on it, particularly when it was at odds with any of the objective materials.

27      Although you had, as a condition of your Community Corrections Order, been engaging in counselling with a psychologist, your solicitors, despite their best endeavours, had been unsuccessful in obtaining a report from him.  The most that was able to be obtained was a certification that you had attended as required for counselling appointments with him.

28      I raised my concerns on the hearing the plea about the absence of any report from the treating psychologist, the uncritical acceptance of your self-report by Mr Jackson and the failure to address the issues of risk of engaging, either in further fire-setting or other life or serious injury endangering behaviour.

29      Ultimately I decided to request a report from Forensicare and a very helpful report from Dr Lauren Ducat, dated 2 December 2017 has now been provided.

30      She reported this:

"Mr Blacker could be vague and circumstantial at times and was inconsistent in some of his details, particularly when referring to the period of time immediately preceding the index offence and other occurrences during that period.  While some of this may have been related to memory deficits, particularly given his high self-reported drug use at the time, it also appeared to be deliberate downplaying of relevant issues that may have been perceived negatively. There were no signs of mental illness and Mr Blacker denied experiencing any current depressive or anxiety symptoms.  Indeed he reported his current mood to be good and described being hopeful for the future.  His emotional expression was both consistent with this and reactive to the topics discussed.  He also denied suicidal and homicidal ideation.  Without formal assessment, he was grossly estimated to be of low average intelligence, with no specific problems with attention and concentration or memory were observed during the assessment."

31      Of particular note was the reference in this report to your admission to Dr Ducat, of having abused the prescription medications, specifically benzodiazepines since your workplace accident.  You told her that you would take sometimes five  times the dose that was prescribed to medicate yourself, particularly when you felt stressed or anxious.  This sits, in my view, in stark and refreshing contrast to the references by Mr Jackson to attributing your over high dosages of prescription medications to having been prescribed disturbingly high levels of medication.

32      Dr Ducat also spoke to your wife at length. She confirmed that you had been abusing your prescribed medication and that she had become aware of it.  She reported that your interactions and cognitive capacity were markedly impacted by, particularly your Valium abuse.  She said that you became incoherent, unable to comprehend conversations, had poor capacity to make and follow through plans and an inability to take responsibility for the running of the household  or for childcare.  Given her experience and qualifications, they are obviously very sensible and well founded assessments. 

33      Again this sits in what I consider again to be a refreshing contrast to the report of Mr Jackson, which simply did not address any consideration as to whether your  impaired cognition could have been as a result of a simple straightforward abuse of benzodiazepines or opioid medications.  Abuse of benzodiazepines or opioid medication is, of course, a self-induced condition which would not attract the operation of the principles in Verdins to reduce your moral culpability.

34      

Dr Ducat also tested you using the Paulhus Deception Scale.  The profile that she obtained from that was consistent, she said, with an individual who has a trait-like tendency towards self-enhancement, as well as responding to situational demands to appear in a positive way, in other words, that considerable reservations or caution had to be used in looking at your

self-report because of these tendencies.

35      

Consistently with the assessment of your previous treating psychiatrist,

Dr Wong and to Mr Jackson, Dr Ducat’s assessment was that you had experienced two significant periods of depression and anxiety in the past, following these two significant life events, the death of your son and the workplace accident.  The second of those was a more protracted one and it may well be that that was very much bound up in the loss of your sense of being the hardworking significant contributor to the family, your reliance upon your physical abilities in your work, and the difficulties of living with chronic physical pain. You had coped better with living with the psychological pain and distress following from the death of your child. 

36      

The symptoms that you described to Dr Ducat, following your workplace accident, of being socially withdrawn, unable to leave the house, suffering an increased heart rate and breathing, muscle tension and cognitive symptoms, such as reduced capacity to think or make decisions, were described by

Dr Ducat as consistent with what you had already reported of experiencing high levels of anxiety.  They are a classic list of anxiety symptoms.  Dr Ducat accepted Dr Wong’s opinion that you had suffered, or agreed with Dr Wong's opinion that you had suffered two significant episodes of adjustment disorder, with mixed anxiety and depressive mood in those periods.

37      She went on to say this:

"Mr Blacker reported that he has not experienced any symptoms of depression or anxiety for several months and had ceased all medications, except for Effexor since late last year.  Specifically he denied low mood, sleep or appetite disturbance, hopelessness, fatigue, lack of motivation, lack of pleasure or suicidal ideation.  He noted some stress relating to his court case, but is otherwise well-adjusted.  In contrast Dr Jensen (letter dated 30 May 2016), reported that at an assessment on 16 May 2016, Mr Blacker presented as a poor historian with difficulty staying on topic and expressed high levels of distress when using the K10 distress scale.  Similarly, Mr Jackson found him to present with low mood, reduced emotional expression and some anxiety during neuropsychological testing on 13 June 2016.  His presentation at that time is difficult to account for, on the basis of both Mr and Mrs Blacker’s reports that he had been weaned of his medication by that stage and his mental state had improved significantly.  It is possible that his ongoing experience of pain and anxiety relating to his court cases impacted upon his presentation."

38      Consistently with your self-report and that of your wife, you are not currently and were not at the time you are assessed by Dr Ducat earlier this month, exhibiting symptoms of anxiety or depression.

39      When assessing your level of risk of engaging in future dangerous behaviour, Dr Ducat noted that when she questioned you about the previous conviction relating to your use of the firearm to shoot a street light whilst making threats of self-harm, that you denied to her any intent to hurt others, but you were able to note that your actions were not thought out and were potentially dangerous. She noted that you have no formal history of fire-setting and that you have denied ever having deliberately lit a fire with the intention of damaging property or causing harm in the past.  You have denied fire play and there is no indication you have any particular interest in fires or firefighting.

40      On the history that you gave her in relation to this offence, you acknowledge that you had taken large amounts of Valium, possibly up to 15 or more tablets and you had been involved in an argument with your wife about it.  She was trying to hold you to account.  She had left the house as a result and you reported to Dr Ducat that you had then become preoccupied with worry that snakes would come into the yard of the house.  You told her that you thought, in that state, that setting fire was the most appropriate method, because the council had previously dealt with the problem in that way.  You denied to her engaging in any previous planning of this nature and you were able to acknowledge to her that you had failed to consider any other possibility for removing the threat of snakes.  

41      In your improved state, you are able to tell her that now with clear thinking, you would have simply called the council and that you now realise the potential severity of your actions.  Although you had had some insight into that when the fire first went up, and that was why you called the fire brigade immediately, for fear of causing further damage.  You told her, and again this shows some insight and a significant preparedness to take responsibility, that you had not then considered the potential consequences or potential for harm to property and life, telling her that you had been just fixated  on trying to get rid of the snakes.  Although you did not take any steps to avoid detection, you told her you initially denied your actions when speaking to the police because you are embarrassed.

42      All of that seems consistent with a greater clarity of thinking, now that you have weaned yourself off your medication and displays a significant preparedness to accept personal responsibility for your behaviour. 

43      

Consistently with what you told Dr Ducat, your wife, when she interviewed her, described a significant change in your general demeanour and cognitive processing after being prescribed high doses of anti-depressants, anxiolytics, anti-psychotics and benzodiazepines by Dr Wong and then combining them with the high levels of opioids you had been prescribed, either by your

Mr Jensen or your general practitioner.  Your wife said that you had exhibited odd fixations and a tendency towards antisocial thinking and behaviour, for example, cleaning, that you were drowsy, you had poor regulation of anger resulting in outbursts, poor memory, slurred speech, reduced ability to plan and to care for yourself or your son.  All of this again ties into it being prescription medication abuse behaviour and pain related behaviour, perhaps with an overlay of the symptoms of the depression and anxiety, rather than any cognitive impairment or directly depression and anxiety related. 

44      Significantly your wife noted that now that you have again weaned yourself off your medications, although you have at times taken Valium, at times of high stress, but it would appear in accordance with prescribed levels.  She has noted a significant change in your ability to interact and your motivation is exhibited in part by your recent willingness to re-engage in returning to the workforce.  You will be running a business of your own, where you will use your expertise, if not your physical strength in concrete rendering.  You have also embarked with really positive plans for the future on the building of a new home for the family and are looking forward in a very positive way to a fresh start for all of you. 

45      Your wife said that you no longer presented with symptoms of depression.  She is, as I have said in the course of the plea and I will say again now, a remarkable and very supportive woman.  She is a professional and skilled person.  She is a clinical services manager at an aged care facility.  You do not get to hold a position of that sort of responsibility without having high technical and clinical skills and great personal skills and she has managed to do that whilst at the same time, having to deal, in an obviously loving and supporting way, with the difficulties that you have encountered.  That she sees the man behind this and not the problems or the way they have manifested themselves in you in recent years, in my view, speaks very highly of the person behind this offending behaviour. This points very strongly to having confidence about your ability now with her support to manage your prescription drug abuse, to manage your chronic pain syndrome and to be able, with her support, to embark on a much more meaningful and positive life in the future. 

46      Therefore, it is very much by reason of her support of you and your now preparedness to accept it, that I see your risk of future re-offending so reduced and your prospects of rehabilitations being so good.  She is also clearly very responsible, whilst being supportive of you.  She is very clear-sighted about the risks that you have posed in the past to yourself, to her, to your child and to other people.  She has shown that she has not only prepared to take a very firm stance with you in relation to the alcohol abuse when that was a problem, the medication abuse when that was a problem, but also to ensure that she removes herself and your child from any harm when you are risking harm.  She is prepared to enlist the support of the police and of mental health professionals when she is unable to manage you, rather than place anybody else at risk.  You are indeed, extraordinarily fortunate to have such a loving and supportive wife. 

47      She has now taken on the role of monitoring your medications, placing boundaries on your behaviours in the home and also assisting and involving to help you  plan your re-entry into work.  And to your credit, you seem to be aware of and prepared to accept the help that she is giving you and to accept the boundaries that she is placing around your behaviour, both in terms of your medication and your behaviour around the home.  Few people have the supports, the really understanding supports that you have and that is something that counts very much in your favour. 

48      In terms of your risk assessment, Dr Ducat used an assessment tool known as the HCR-20 version 3.  That, she said, provides a structured professional judgement approach for the assessment of risk of future violence, including of arson.  She said there are some limitations to this assessment tool and there are no currently validated tools dealing directly and specifically with the assessment of risk of future fire setting, but the strong predictive validity of the HCR-20 version 3 for violent re-offending, including by arsonists, coupled with other factors that she identified from literature relating to the risk of future fire setting, she said, provided her with a good indication of the assessment of factors that may be relevant to target offence-specific treatment, as well as identify your risk assessment.

49      She concluded that although there was some evidence for historical risk factors, there were few dynamic risk factors and that overall, you presented with a moderate level of historical risk factors, relevant at the time of the offending and in particular, your mental illness, employment and substance abuse.  However she noted that:

"The absence of most dynamic risk factors and the presence of strong protective factors, such as recent stability in mental state, reduction of medication abuse, re-engagement in employment-type activities, strong family and prosocial supports and strong prosocial attitudes, suggest that your risk in the medium term is considered low."

50      She also relied on  the absence of fire specific factors, such as criminal versatility history of fire-setting, fire play, or interest in fire or fire related paraphernalia. 

51      Given the detail that she has set out in that report and the basis for it, I accept her opinions without qualification.

52      She concluded in these terms: 

"Although Mr Blacker has a history of mental illness, it could not be      definitively determined whether he was indeed suffering from major           depressive symptoms at the time of the index offending.  It was                   clear that he was abusing and likely dependent on prescribed     medications that grossly impaired his functioning and likely            obscured the presences of other mental disorder.  He was also            experiencing symptoms of a chronic pain disorder, with some   underpinning and psychological factors, which           is likely to have         impaired his reasoning at the time.  At the least, his judgment,      problem solving, memory, ability to communicate his needs,           reduced processing speed and capacity to plan were     impaired        and it is these factors that led to his odd offending behaviour.

I note   that when Mr Blacker was assessed in May and July of this year,         he presented as markedly anxious and          distressed.  This was not consistent with his presentation during the current assessment or with his own or his wife's account of his mental state and behaviour over the past six months. While I cannot account for these      differences in presentation, from     the current assessment, there is little evidence to suggest that Mr Blacker is currently experiencing      a mental disorder.  He no longer meets the DSM-5 diagnostic criteria for major depressive disorder, nor does he meet the criteria for substance use disorder.

Formal neuropsychological testing conducted by Mr Martin Jackson raised the possibility of an acquired brain injury. This was not formally tested during the current assessment.  It would appear from his current presentation that the possible presence of such injury, while impairing some of his cognitive abilities, it is not sufficient to grossly impair his reasoning and ability to make decisions at the present time.  While he continues to display poor memory, reduced capacity for planning         and slow processing speed, he no longer appears to be impaired to the degree that he was at the time of the index offence.  Again, it is possible that his medication abuse and chronic pain had an interactional effect on his cognitive capacities, accounting for the changes evident now.  Nevertheless, these factors will be relevant to any future risk of offending. 

Mr Blacker's risk of future fire-setting or endangering the public is currently considered to be low.  Mr Blacker has no history of fire-setting behaviour, no fire interests or identification and has never used fire as an instrument in an instrumental or emotionally expressive way in the past.  This      offending seems to have been a misguided attempt at problem solving, which was significantly impacted by his reduced mental     capacity, as a result of substance abuse and chronic pain.  Underpinning his mental state and behaviour appears to be a psychological vulnerability to stress and poor capacity to cope.  If he was to experience a significant stressor, experience of deterioration in his mental stated and return to prescription medication abuse, his risk of offending may increase. 

Protectively,   Mr Blacker has a strong and supportive marriage and a range of prosocial supports.  He receives significant structural and emotional supports from these sources.  His medication adherence is closely monitored by his wife.  Additionally, Mr Blacker does not hold anti-social attitudes and his offending history is reflective of emotional vulnerability, rather than anti-sociality.  He has also shown the capacity to adhere to the conditions of a Community Corrections Order."

53      I should interpolate to say, adhere to the conditions by way of compliance.  You clearly breached the previous community corrections order by commission of this offence and that is something that still needs to be dealt with.  

54      

Mr Jackson too was of the opinion that further stressors might lead to

a deterioration in your mental state and I accept that part of his opinion.  Given the measured nature of Dr Ducat's opinion and the basis that she sets out,  

I accept the assessment and the opinions that I have just read out, without reservation.

55      It is clear on the materials before me that whatever your state was at the time that you were assessed by Mr Jensen and Mr Jackson in May and July of this year, your presentation earlier this month when assessed by Dr Ducat and the overall improvement documented and reported by you and your wife, indicates that you are no longer suffering anxiety, depression or adjustment disorder with anxiety and depression.  I am not satisfied that at the time of the commission the offences, there was a significant contribution by any mental condition, as opposed to the abuse of medications that led to your impaired judgement.  I am satisfied however that by reason of those matters identified, that your risk of your offending in like manner, or in any other way, likely to endanger the public is, as Dr Ducat said, low.

56      Despite therefore the objective seriousness of the offending and the circumstances of your abuse of your prescribed medication, brought about by that significant workplace injury and your history of the triggering of symptoms of depression and anxiety and adjustment disorder, as a result of experiencing a major stressor on your life, does to some extent, limit your moral culpability, but also gives a level of confidence that given your recovery on each of the two occasions that you have suffered the major life stressors and spiralled into depression, anxiety and adjustment disorder, given your level of recovery, that  your risk of re-offending is low.

57      In those circumstances and having regard to the other matters that count in your favour that are interwoven in what I have said, I do not consider that it is necessary or appropriate in order to meet the needs of denunciation, general deterrence, just punishment or for that matter, specific deterrence or protection of the community, to impose a term of imprisonment upon you.

58      I consider that in all of the circumstances, a Community Corrections Order, with punitive and rehabilitative elements of unpaid community work, supervision, drug assessment and treatment, mental health assessment and treatment and participation in offending behaviour programs, can properly reflect the seriousness of the offending and balance with your somewhat unusual circumstances, including those strong protective factors borne out by your history, up until the time you suffered these life crises and your recovery from them.  I also take into account your preparedness to accept the help provided by your wife and by the mental health professionals and by Corrections under the previous CCO and the very promising signs of your overall recovery.

59      As was clear from the discussion I just had with your counsel, there are punitive elements, as well as rehabilitative elements in this order.  I do consider, despite your history of this serious injury, that a measure of unpaid community work is necessary and appropriate and I have confidence that you will be able to provide medical reports, given your current improvement, that will enable you to perform light duties, but you will have to provide a medical clearance to Corrections.

60      I am also, in the circumstances, prepared to make an order that half of the hours that I am prescribing of unpaid community work, can be credited by your participation in rehabilitative programs and counselling. 

61      So could you now please stand, Mr Blacker.

62      On the charge of intentionally cause a bushfire, to which you have pleaded guilty, you are convicted.  You are placed on a Community Corrections Order for a period of two years, commencing today and expiring on 18 December 2018. 

63      There are mandatory terms that apply to all community corrections orders and they are these: 

·    That you must not commit another offence for which you could be imprisoned during the time that the order is in force. 

·    You must comply with any obligation or requirement prescribed by Regulation 17 of the sentencing regulations.  That means you must submit to drug or alcohol testing if required when you attend for any of your order conditions and you must not be impaired by drugs or alcohol and that includes impaired by taking non-prescribed levels of prescription medication when you attend for any of the conditions of your order.

·    You must report to and receive visits from the Secretary or delegate.

·    You must attend at the Broadmeadows  Community Correctional Services at 25 to 27 Dimboola Road, Broadmeadows, within two clear working days after the commencement of this order.  That means by Wednesday of this week. 

·    You must let a Community Corrections officer know within two clear working days if you change your address or your job. 

·    You must not leave Victoria without first getting permission to do so from the Secretary or delegate.  That means if you are planning, the family is planning a holiday out of the State, at Christmas you must get permission before you can go. 

·    You must obey all lawful instructions from and directions of the Secretary or delegate. 

64      In addition to the mandatory terms, I impose the following terms:

· You must perform 100 hours of unpaid community work over the period of two years, as directed by the Regional Manager. I order that 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of this unpaid community work order condition. If you fail to comply with this condition, the Secretary to the Department of Justice or their delegate may give you a direction to perform additional hours of unpaid community work, in accordance with s.83(a)(u) of the Sentencing Act.  But before you do any unpaid community work, Corrections will have a discussion with you and you will be told the sort of medical questions you need to ask your treators, so as to provide a medical certificate as to your capacity and your clearance for particular types of work.

·    You must be under the supervision of a Community Corrections officer for a period of two years. 

·    You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager. 

·    You must undergo any mental health assessment or treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or a residential facility, as directed by the Regional Manager.

·    You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager.    

65      Do you understand the effect and the conditions of this order, Mr Blacker?

66      OFFENDER:  Yes, Your Honour. 

67      HER HONOUR:  And do you consent to it being made?

68      OFFENDER:  Yes, Your Honour.

69      HER HONOUR:  All right, I will ask that either your counsel or your solicitor take it down to you, and that you sign that. 

70      I have also been asked to make an order for the taking of a forensic sample and I propose to do that, having regard to the seriousness of the offending and your previous conviction for the reckless conduct endangering serious injury.  I am making that order for the taking of a buccal sample.  That is a scraping from the inside of the mouth.  I must warn you, that if you do not provide a sample sufficient for testing and co-operate in the provision of that sample, then the police are authorised to use reasonable force and they may use the more invasive means necessary, namely the taking of a blood sample.  Do you understand that?

71      OFFENDER:  Yes, Your Honour. 

72      HER HONOUR:  There is a complicated timeframe for provision of that sample.  You must allow 28 days to pass, that is the appeal period in respect of this order I am making today, to expire.  After that 28 days has expired, if you do not appeal or if the DPP does not appeal, then you must attend at the Broadmeadows Police Station at 15 Dimboola Road, so that is just up the road from the Community Corrections, to provide that sample.  Do you understand that?

73      OFFENDER:  Yes, Your Honour.

74      HER HONOUR:  Right, thank you.  Well I will sign that order whilst you sign the community corrections order. 

75      Any other orders that are required to be made?

76      MR CESCATO:  No, Your Honour.

77      HER HONOUR:  That was the only ancillary order, wasn't it?

78      MR CESCATO:  Yes, Your Honour.

79      HER HONOUR:  Yes, thank you. 

80      I have signed the 464ZF order and I have countersigned the community corrections order.  When a copy of that order, countersigned by me, has been made by my associate, Mr Blacker, you will be free to leave the court, but you must wait after I have stood down, until it has been copied and provided to you.

81      OFFENDER:  Yes, Your Honour.

82      HER HONOUR:  All right.  Nothing further?

83      MS STYLIANOU:  Your Honour, yes, there's nothing further.  My learned friend was just reminding me that there was one day of PSD, but I think there was no PSD.

84      HER HONOUR:  I was told last time that - - -

85      MS STYLIANOU:  Your Honour's quite right.

86      HER HONOUR:  - - - although it was one day, he was released within 24 hours and therefore - - -

87      MS STYLIANOU:  He was.

88      HER HONOUR:  - - - it did not count as a day. 

89      MS STYLIANOU:  That is correct.

90      

HER HONOUR:  I have made a specific alteration to the prosecution

summary - - -

91      MS STYLIANOU:  Your Honour's quite right.

92      HER HONOUR:  - - - that I was told that.

93      MS STYLIANOU:  Your Honour's quite right.  It was the defence reminding the prosecution - - -

94      HER HONOUR:  Yes, Mr Cescato, does that jog your memory?

95      MR CESCATO:  Yes, it does, Your Honour, that was back in July, I think.

96      HER HONOUR:  Yes, that is right.  It is a long time ago.

97      MR CESCATO:  Thank you, Your Honour.

98      HER HONOUR:  All right, thank you.  But in any event, I would not make the declaration today, it would only be if I imposed a term of imprisonment - - -

99      MS STYLIANOU:  Yes, that's correct.

100     

HER HONOUR:  - - - that I would have to make the declaration, so if I am wrong about that, there is no harm done to your client's interest at this stage and the only time it would come into play is, were he to breach and so seriously that

I had to re-sentence him and considered that I had to impose a term of imprisonment.

101     MS STYLIANOU:  Yes, Your Honour.

102     MR CESCATO:  Thank you, Your Honour.

103     HER HONOUR:  All right, thank you.  Adjourn. 

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