Director of Public Prosecutions v Brown

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00080

DIRECTOR OF PUBLIC PROSECUTIONS

ADAM BROWN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2021
DATE OF SENTENCE:	13 October 2021
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2021] VCC 1543

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Arson – s 197 – Contravention of family violence intervention order – Committing an indictable offence whilst on bail – Mid-stage plea of guilty – Prior conviction for Arson – Accused suffering from schizoaffective disorder and polysubstance abuse disorder – Mild intellectual disability and acquired brain injury - Family violence – Significantly disadvantaged childhood - Delay
Legislation Cited: Crimes Act 1958; Family Violence Protection Act 2008; Firearms Act 1996; Control of Weapons Act 1990
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence – Imprisonment of 3 years and 9 months with a non-parole period of 2 years and 6 months – s 6AAA declaration – Imprisonment of 5 years with a non-parole period of 3 years and 6 months
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For the Accused	Ms A. Cannon	James Dowsley & Associates

HIS HONOUR:

1Adam Brown, you have pleaded guilty to one charge of arson contrary to s 197 of the Crimes Act 1958. The maximum penalty for that offence is 15 years imprisonment.
2You have also pleaded guilty to the following related summary offences -
(i)Contravening a family violence intervention order contrary to s 123(2) of the Family Violence Protection Act 2008. The maximum penalty for that offence is two years imprisonment.
(ii)Committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977. The maximum penalty for that offence is three months imprisonment.
(iii)Possessing cartridge ammunition contrary to s 124(1) of the Firearms Act 1996. The maximum penalty for that offence is a fine of 40 penalty units; and
(iv)Possessing a controlled weapon contrary to s 6(1) of the Control of Weapons Act 1990. The maximum penalty for that offence is one year imprisonment.

3. You pleaded guilty following committal for trial in this court after negotiations with the prosecution resulted in resolution of the proceeding. Whilst your plea was not at an early stage in the proceedings, it has nevertheless facilitated the criminal justice process during the COVID-19 pandemic. I also accept that it is evidence of some remorse for your offending. It is a high-value plea of guilty and I have taken it into account in your favour in mitigation of sentence.

You have admitted an extensive criminal history for a range of offences dating to 2005. You have a prior conviction in 2010 for the offence of arson. This matter was dealt with in the Melbourne Magistrates’ Court wherein you were placed on a community-based order with a justice plan condition. You breached that order and have breached subsequent community-based dispositions which have been intended to support your rehabilitation. It is clear, however, that your criminal history is closely linked to your long-standing history of mental illness and drug addiction.
5. A prosecution opening was tendered in evidence and your offending may be summarised as follows -
6. In 2018 you were residing with your father at his home in Dallas and, due to the poor relationship you shared with him, a family violence intervention order was taken out by the police on 1 October 2018. The order restrained you from going within 200 metres of the house, but despite this you continued to reside there.
In early 2019 your relationship with your father further deteriorated, as did your mental illness, and in March 2019 your father moved out and went to live with his mother. For reasons that are not clear, on 31 March 2019 you set fire to your father's house using a combustible liquid which was deposited in various sites throughout the premises. The ensuing fire totally destroyed the house and its contents. However, the house was insured, and your father was indemnified by his insurer for his losses.
You were arrested on the day of the fire and interviewed by police in the presence of an independent third person because you were exhibiting symptoms of mental illness. You denied the offending. At the time of your arrest you were in possession of a shotgun cartridge and fishing knife.
You were charged with the offences before the court and remanded in custody, where you remain. It is plain that this is a very significant time for you to have been awaiting a resolution of these proceedings and the responsibility for this delay cannot be attributed to you.
I am satisfied that the offence of arson to which you have pleaded guilty is a serious example of that offence and this sentence must be calculated to deter you and others from offending in this manner.
I have received in evidence the victim impact statement of your father and accept that the loss of his house and its contents has had a deeply traumatic effect upon him. It appears to be the case from histories that you have provided to treating and assessing psychiatrics and psychologists that you suffered serious emotional and physical abuse from your father as a child and in your developmental years; nevertheless, it is the responsibility of the court to protect the community and your father from offending of this nature.
I now turn to your personal circumstances.
You were born in August 1987 in Carlton and are now aged 34. At birth you suffered from bilateral foot displacement and underwent corrective surgery as an infant. Your parents separated when you were a young child and, due to their respective drug and alcohol disorders, you were placed in foster care for extended periods. You have had little or no contact with your mother since your early childhood.
During your periods in foster care your visits to your father were reportedly met with physical abuse. Your education was seriously disrupted and after attending Ballarat Special School you left in Year 10. You are unable to read or write. I have no doubt that your childhood and developmental years were profoundly disadvantaged and you were abused by those who were responsible for your care and wellbeing. The origins of your long-standing mental illness and intellectual disability reside in this abuse.
I have received in evidence a comprehensive psychiatric report prepared by Dr Nicholas Owens which sets out your psychiatric and personal history and his diagnoses. I accept that you suffer from schizoaffective disorder and polysubstance abuse disorder. Dr Owens concludes that, although you were heavily intoxicated at the time of your offending, he was unable to establish a connection between the symptoms of your schizoaffective disorder and your offending.
The impact of imprisonment has led to the stabilisation of your mental health as you are now receiving full treatment and medication and you are not abusing alcohol and drugs. Nevertheless, imprisonment, in Dr Owens' opinion, is a strong risk factor for a relapse into psychosis, as imprisonment is a stressful environment for you.
I have also received in evidence a neuropsychological of Ms Laura Scott, a clinical neuropsychologist, detailing your cognitive function and neurological development. Based on her findings I accept that you suffer from an acquired brain injury and a mild intellectual disability. She concludes that your offending is consistent with severe deficits in planning and executive functioning. She also concludes that your offending is linked to your childhood abuse and trauma, which has in turn caused your mental illness. In Ms Scott's opinion your mental illness, intellectual disability and acquired brain injury place you at a significant disadvantage in prison and, due to your impaired functioning, there is also a high risk of institutionalisation in your case.
It is clear that the principles enunciated by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case. In my opinion your mental illness significantly moderates your moral culpability for the offence of arson.
You have been assessed as eligible for the delivery of services pursuant to the National Disability Insurance Scheme and appropriate case workers will support you upon your release from prison. Whilst it is a matter for the Adult Parole Board, that release ought to be as soon as practicable following your eligibility for release.
Any assessment of your prospects for rehabilitation are to be approached with caution, but if you engage appropriately with your case workers and remain drug free it is reasonable to conclude that your prospects will improve over time.
You have spent a lengthy period in custody on remand during the COVID-19 pandemic. I accept that the additional necessary restrictions that have been imposed upon you by Corrections have increased the hardship of imprisonment in your case.
In the result the sentence of the court is as follows -
On the charge of Arson and the related summary offences, with the exception of the possession of ammunition charge, you are convicted and sentenced to an aggregate term of imprisonment of 3 years and 9 months.
I direct that you serve 2 years and 6 months before becoming eligible for release on parole.
I declare that you have served 926 days by way of pre‑sentence detention not including today.
But for your plea of guilty I would have imposed a total effective sentence of 5 years with a non-parole period of 3 years and 6 months.
On the possession of ammunition charge you are convicted and discharged.
Are there any further orders required, Mr Brennan?
MR BRENNAN: No, no further orders required, Your Honour.
HIS HONOUR: Thank you. Mr Barratt?
MR BARRETT: No, Your Honour.
HIS HONOUR: All right. Mr Brown, by my calculations you are now or very shortly will be eligible for release on parole, so once that has been determined by the Adult Parole Board and appropriate facilities are in place for you pursuant to the National Disability Insurance Scheme and the report of the case worker I received in this matter, hopefully your situation will stabilise and you will be able to get your life into a stable situation.
All right, thank you. The court will now adjourn until Friday at 10.30. Thank you.

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[2021] VCC 1543

13 October 2021