Director of Public Prosecutions v Brown
[2020] VCC 196
•3 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-19-00459
CR-19-01193
CR-19-01194
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAYLIA BROWN |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August, 17 September, 11 October, 15 November 2019, 24 February 2020 | |
DATE OF SENTENCE: | 3 March 2020 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 196 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Multiple arsons - 18 year old offender – history of repeated self-harm and hospitalisations - diagnosis of severe personality disorder with detachment and borderline pattern – whether personality disorder enlivens Verdins principles – consideration of decision in O’Neill
Legislation Cited:
Cases Cited:R v Verdins [2007] VSCA 102; DPP v O’Neill [2015] VSCA 235; Di Paolo v R [2019] VSCA 194; DPP v Bruno [2018] VSC 822; DPP v Herrmann [2019] VSC 694; R v Hayes [2010] QCA 96; DPP (Cth) v De La Rosa [2010] NSWCCA 194; Quinn v R [2018] NSWCCA 297; Dean v R [2015] NSWCCA 307; DPP (Acting) (Tas) v CBF [2016] TASCCA 1
Sentence: Imprisonment for 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Goetz | |
| For the Accused | Mr T Marsh |
HIS HONOUR:
1 Daylia Brown has pleaded guilty to four charges of arson and three uplifted summary charges. The first summary charge concerns Ms Brown entering a prison whilst in possession of a razorblade. The second summary charge involves an assault on an emergency worker whilst on duty. The third summary charge arises from Ms Brown resisting an emergency worker whilst on duty.
2 Ms Brown has also admitted a highly relevant criminal record.
3 At the time Ms Brown offended she had just turned 18. She is now 19 years old. Her life has been blighted. She was affected by reasonably severe anorexia nervosa in early adolescence and since then has suffered from extremely fragile self-esteem and complex personality deficits. Ms Brown has an extensive history of self-harm and multiple hospital admissions. During the course of this proceeding Ms Brown has been hospitalised as a result of cutting herself with sharp blades and swallowing a spoon whilst in custody.
4 Last week Ms Brown appeared in court having just been released from the Alfred Hospital after a further episode of self-harm. Her counsel, Mr Marsh, told the Court that she was profoundly ambivalent about what her future might hold. She had just told Mr Marsh ‘I don’t know if I want to get out or stay, it’s just too complicated. I feel like I don’t have a place in the world, I just want to disappear and die.’
5 The sentencing of Ms Brown has been delayed because of the lengthy time it has taken to find suitable accommodation for her and to have it retrofitted with a fire sprinkling system. This Court has now been told that accommodation will be available by 30 June 2020.
6 The imminence of a sentence and her uncertain future has exacerbated Ms Brown’s anxiety and has increased her risk of self-harm.
7 Associate Professor Dr Andrew Carroll, consultant forensic psychiatrist, has prepared a 53 page report in which he details Ms Brown’s history and summarises many earlier reports which canvass her compromised mental health. Dr Carroll expresses the opinion that Ms Brown suffers from Severe Personality Disorder with Detachment and a Borderline Pattern and that the offending before this Court all relates to her severe personality disorder.
8 I accept the opinions expressed by Dr Carroll.
9 Mr Marsh, who has ably represented Ms Brown throughout this proceeding, contends that this Court should give full effect to the principles enunciated in R v Verdins [2007] VSCA 102 and that the judgment in DPP v O’Neill [2015] VSCA 235 should not be understood as precluding the application of Verdins in cases where an offender has been diagnosed with a personality disorder. For its part the prosecution submits that the decision of O’Neill stands for the proposition that an offender who suffers from a personality disorder does not have impaired mental function and therefore that Verdins is not enlivened.
10 In addition to the report of Dr Carroll this Court also had the benefit of viva voce evidence from Professor James Ogloff, clinical and forensic psychologist. Professor Ogloff, who holds various positions including that of Director of Psychological Services and Research at the Victorian Institute of Forensic Mental Health (Forensicare) was called by the prosecution to assist the Court. He did not express an opinion as to Ms Brown’s diagnosis but did indicate that from his professional perspective the exclusion of personality disorders from Verdins considerations was wrong.
The offending and its background
11 The circumstances of the offending can be summarised.
12 On Tuesday, 18 December 2018 Ms Brown attended a Target store in Bourke Street, Melbourne where she lit a fire amongst a display of picnic rugs. She used matches and deodorant as an accelerant. She then walked to the beauty accessories section of the store and lit a fire amongst a display of cosmetic bags, using matches and deodorant.
13 The first fire was quickly extinguished by store staff. The Metropolitan Fire Brigade (MFB) was called and it was then realised that a second fire had been lit. The store was evacuated of all staff and customers and the MFB extinguished that fire.
14 Police attended and viewed CCTV footage where Ms Brown was observed. The conduct founds the first charge of arson.
15 At approximately 10.55pm Ms Brown went to a Coles store located at Elizabeth Street, Melbourne. She walked around for a short time and then lit a fire in the female sanitary products display by lighting a match and throwing it into the shelves before walking away. A short time later she returned and viewed the fire, before leaving the store. That conduct founds the second charge of arson.
16 The fire was extinguished by store staff and both the MFB and police were requested to attend. The store was evacuated of all staff and customers. It is estimated that $9,774.75 of damage was caused by the fire at Coles.
17 At about 11.00pm on 18 December, Ms Brown entered Woolworths Supermarket in Elizabeth Street, Melbourne and selected some toilet paper from a shelf and walked to the aisle containing baby products. She placed the toilet paper on a shelf and set fire to it before leaving the store. A short time later, staff noticed a burnt out toilet paper roll and reported the incident. Ms Brown was identified from CCTV footage. That conduct forms the basis for the third charge of arson.
18 A short time later, two protective services officers (PSOs) observed Ms Brown standing out the front of the Elizabeth Street entrance to Flinders Street Railway Station. She was arrested and, whilst being arrested, she resisted the two emergency workers. That gives rise to the uplifted summary charge of resisting an emergency worker on duty.
19 After being taken to the ground and handcuffed, Ms Brown kicked out at a female PSO, striking her to the right shin. That conduct founds the charge of assaulting an emergency worker on duty.
20 A search of Ms Brown’s jacket resulted in the finding of a box of matches, two cans of deodorant and a sock which smelled strongly of deodorant.
21 Due to her mental state Ms Brown was unable to be interviewed and she was taken by police to the Royal Melbourne Hospital Emergency Department (‘RMH ED’) pursuant to s351 of the Mental Health Act 2014. Clinical staff noted that she would not divulge where she was living and that she had ongoing plans of fire-setting because she wished to go to jail. Rather than being remanded in custody Ms Brown was transferred to Orygen and told staff that she ‘would like to be with her friends in juvie.’
22 On 20 December 2018 at a consultant psychiatrist review the following notations were made:
‘Endorsed thoughts of wanting to set fire to something to go to YJ [Youth Justice] or prison. It’s better than the world. …. Nil empathy/remorse displayed for consequences of her actions, including possible harm to innocent bystander/public.’
Ms Brown was admitted to Orygen psychiatric unit.
23 On 22 December 2018 Victoria Police called the hospital to say that Ms Brown had called them and said she planned to escape and had a self-harm instrument on her person. She stated a desire to go to prison.
24 On 23 December 2018 at a consultant psychiatrist review Ms Brown’s remarks were summarised: ‘Called police and informed that she is going to burn QV [Queen Victoria Building] in the city …wants to go to jail. “I don’t deserve to be in this world …. I need to be punished. There is no hope for me in this world. Everyone has given up on me. I do want to change and be better, but I don’t think that can happen”.’
25 On the same day nursing notes record: “‘this world is fake, I don’t fit in this world, jail is where I belong.” Cut slashes on her leg with glass and tried to cut wrist. Asked for police to come and arrest her.’ She eventually required seclusion, restraint and intramuscular olanzapine. She screamed that she wanted police to be called and to go to jail.
26 On 24 December 2018 Ms Brown discussed events of the previous day with the consultant psychiatrist and said ‘I couldn’t control self’ and was ‘angry’. The consultant noted that she continued to endorse thoughts of wanting to set fire to the QV, so that she could be taken to YJ/prison. Ms Brown was discharged to supported accommodation in Brunswick under the full-time supervision of Mind Australia, a mental health organisation.
27 On the same day a case worker drove Ms Brown to Brunswick Police Station after she uttered threats to burn down the QV. She was again detained by police under section 351 of the Mental Health Act and taken to the RMH ED before being released back to her accommodation.
28 Dr Carroll has summarised the records of a medical review conducted on 27 December 2018 by Orygen:
·noted to be living in MIND housing in Brunswick in which residents each have own small unit with en-suite and kitchenette;
·facility staffed overnight and had a day program with twice-weekly groups;
·she disclosed thinking about setting fires "a few times a week" after absconding;
·noted: "Part of the motivation [for fire-setting] would be to return to youth custody, but this wasn't the whole picture, it sometimes felt satisfying as though I've completed something, that's how it's meant to end, to play out, that's just life, but also feels worried about lighting fires ... sometimes she doesn't want to light fires, but I feel I have to";
·disclosed using $1000 worth of methamphetamine over two weeks whilst absconded;
·reported "visual hallucinations of an old couple standing next to a car, believed people were trying to kill her, carried a blade to defend herself, now realises this was not real."
29 On 28 December 2018, Ms Brown attended the RMH ED with a wound to her forearm, but declined stitches.
30 As at 29 December 2019, Ms Brown was continuing to live in Brunswick. She was subject to a Youth Supervision Order which had been imposed in the Melbourne Children’s Court on 9 October 2018 as a result of pleading to two charges of arson, intentionally damaging property, theft from a shop and failure to answer bail.
31 On Saturday, 29 December 2018, at about 2.00am, Ms Brown attended a property at 70 Flemington Road, Travancore, which was owned by the Department of Justice and Community Safety and was used as an outpatient mental health facility managed by Mind Australia. She had previously lived at this address and had left the property on or around 12 December 2018. Ms Brown forced entry into the premises by smashing a window at the rear of the house. Once inside, she moved furniture into the hallway and stacked it on top of each other to enable her to climb up and reach the ceiling. Having reached the ceiling, Ms Brown ignited the insulation in the roof. She then moved to the office area, where she ignited bedding. That conduct founds the fourth charge on the indictment, being arson.
32 Once both areas were alight, Ms Brown left via a window and threw two lighters away before watching emergency services attend the fire from a nearby school.
33 The MFB attended, but the property was fully ablaze. The estimated cost of restoration was $548,500, which includes demolition of the fire-damaged residence and rebuilding to the same standard.
34 At about 2.30am Ms Brown was seen about 700 metres away from the Travancore address. She was arrested and said that she had just set a house on fire by using a lighter to ignite a mattress. She was taken to Moonee Ponds Police Station and interviewed and then conveyed to the Melbourne Custody Centre for the purpose of a remand application at the Melbourne Magistrates’ Court.
35 At the Melbourne Custody Centre Ms Brown advised police that she had a razorblade concealed in her bra.
36 At about 10.15am she was lodged at the Melbourne Custody Centre and asked a number of times if there was anything else concealed. Ms Brown said that there was not. After further instruction to remove any concealed razors, she handed over another razor. That conduct founds the uplifted summary charge of taking a razorblade into a prison.
37 When interviewed, Ms Brown admitted that she had broken into the Travancore house by smashing a window with a rock and stacked a chair and a table so as to allow her to reach the insulation in the roof. She said that she used a lighter to also set fire to a mattress located in another room of the house. She also admitted to throwing the two lighters onto a roof of adjoining premises after leaving the house.
38 Ms Brown has been in custody in relation to the offending of 29 December 2018 since that date and was remanded on 14 June 2019 in relation to the offending committed on 18 December 2018.
39 In characterising the objective gravity of her offending, I accept the submission of Mr Marsh that the three arson charges involving setting fires in supermarkets are properly to be viewed as relatively lower end examples of the offence of arson. Although two of the fires caused the evacuation of supermarkets, there is little evidence to suggest that the public were immediately imperilled.
40 However, Charge 4 concerning the destruction of the property at Travancore is altogether more serious although I note that the property was vacant and that although the fire destroyed the house there was no direct and immediate danger to the public. Significantly, none of the arsons were committed for monetary gain or for revenge. In each case, Ms Brown set fires so as to be detected and remanded in custody with a desire to return to youth detention in Parkville.
41 Ms Brown’s mother and sister have each provided references which refer to Daylia Brown’s struggle over many years with mental health problems and to her very strong impulses and to her self-harming behaviour.
Personal circumstances and Dr Carroll’s evidence
42 The report of Dr Carroll was augmented by oral evidence. It is necessary to refer in some detail to Dr Carroll’s findings.
43 Dr Carroll took a personal history from Ms Brown which was also canvassed by Mr Marsh.
44 Ms Brown is the youngest of her mother’s four children. There are three maternal half-siblings with whom Ms Brown has some contact. Ms Brown’s parents split up when she was around the age of seven and she has denied any history of abuse or neglect. However there appears to have been considerable interpersonal conflict between her parents during her childhood.
45 Ms Brown describes her relationship with her mother as good, and her mother has supported her in court on a continuing basis but Ms Brown’s contact with her father is sporadic
46 Ms Brown effectively disengaged from schooling in Year 7 and formally dropped out of school in Year 8. She has said that she did not like school. Subsequently, when incarcerated at Parkville, she has studied some VCAL subjects. She has a particular interest and talent for computer animation and enjoyed making YouTube videos which were sufficiently successful to earn her a small income in the order of several hundred dollars per month at its peak. She ceased making those videos at the age of 15.
47 Ms Brown reported never having had an intimate relationship and, with respect to sexual orientation, she said “I’m not sure” and that, as to sexual contact, “I feel repulsed by it”.
48 Dr Carroll reports that although in the past one clinician appeared to assume that Ms Brown was a survivor of childhood sexual abuse, there was no evidence to support this contention.
49 Ms Brown’s Year 8 coordinator described her as the “guru for the disaffected kids” and said that “she reminded me of Gollum from the Lord of the Rings, wanting and seeking out contact from others but then being afraid of them”.
50 Earlier reports from attendances at multiple general practitioners from the age of 11 indicate that Ms Brown’s schools regarded her as withdrawn and not relating to peers.
51 Ms Brown’s mother has indicated that she began to notice things changing when her daughter was around eight years old. She was becoming shyer and beginning to struggle with her school performance. Her communication was odd and, from about the age of eight, she began answering questions with single word answers usually pertaining to an animal or rodent. Her mother was told about an incident when her daughter alleged that she was held down by some boys who had inappropriately touched her, but was not able to find out more detail.
52 Ms Brown commenced self-harming in high school. She also suffered from an eating disorder and had regular contact with mental health services. Ms Brown’s forensic history is detailed by Dr Carroll.
53 On 16 June 2016, she burned down an IGA supermarket in Beechworth. Subsequently, she was found not guilty on the grounds of mental impairment but detained on a Custodial Supervision Order at Parkville Youth Justice Residential Centre because the presiding magistrate at the Children’s Court at Wodonga was satisfied that there was no practicable alternative. Ms Brown told Dr Carroll that this was the first fire that she had set and that for several weeks prior to burning down the supermarket she felt “weird and angry”.
54 She reported that there had been an altercation with the family of a Tasmanian boy that she had been friendly with and subsequently she had developed homicidal thoughts regarding another boy who, some years earlier, had “got into her space” at school. She revealed those thoughts to her therapist and was admitted to a psychiatric facility where she formed the idea of setting the fire and had settled on the supermarket at her home town in Beechworth because “it was the biggest in the town, the food source for everyone. I wanted to burn the whole town”. In the days leading up to the fire, Ms Brown had spent time at the Box Hill Adolescent Unit due to suicidal and homicidal ideation and was released from Box Hill Hospital only three days prior to her offending.
55 On 9 October 2018, Ms Brown was released on a Youth Supervision Order without conviction in respect of two charges of criminal damage by arson and other offences. On the evening of 7-8 August 2018, CCTV footage appeared to show Ms Brown lighting multiple bin fires near Flinders Street Station.
56 On 25 October 2018 Ms Brown was admitted to the high dependency unit at the Royal Children’s Hospital.
57 On 7 November 2018 Ms Brown absconded from the unit by climbing over a fence.
58 As at 29 May 2019, being the date of Dr Carroll’s report, Ms Brown’s documented episodes of self-harm have involved:
·Threatening to jump off a cliff (November 2014)
·Overdosing on paracetamol (7 May 2015)
·Threatening to jump off a bridge (15 September 2015)
·Swallowing a razor from a pencil sharpener (28 June 2016)
·“Insufficient oral intake” (2 July 2016)
·Hanging herself using a ‘feeding set cord’ (28 July 2016)
·Swallowing a screw (24 September 2016)
·Swallowing two small batteries (26 October 2016)
·Multiple incisions to left forearm with a piece of glass (31 October 2016)
·Overdosing on assorted stockpiled tablets (3 January 2017)
·Swallowing a plastic fork (8 January 2017)
·Swallowing a metal knife (22 April 2017)
·Deep self-inflicted laceration of hand (21 September 2017)
·She is reported as having “ideas about being euthanized… wanted to arrange for the police to shoot her…” (29 November 2017)
·Ingesting laundry powder (8 April 2018)
·Overdosing on medication (17 July 2018)
·Attempting to jump off a bridge with a razor blade (19 October 2018)
·She is reported to have been found with deep cuts to arms, in possession of Stanley knife, attempting to tie a rope to a tree (22 October 2018)
·Eating chalk (28 October 2018)
·Cutting herself on left forearm, left leg and neck (8 November 2018)
·Swallowing a button battery (12 November 2018)
·Cutting slashes on her leg with glass and trying to cut wrist (23 December 2018)
·Cutting herself with a blade; and swallowing gravel (dates not known)
59 Dr Carroll also reported Ms Brown’s prior episodes of hospitalisation as at the date of his report:
·November 2014: First admission to Box Hill Adolescent Inpatient Unit (‘BHAIU’) following suicide attempt
·15 September 2015: Second admission to BHAIU – suicide attempt
·13 January 2016: Discharged from Box Hill Hospital following homicide attempt on boyfriend
·2016: Spent 6 days in BHAIU, prior to lighting the Beechworth IGA fire
·28 June 2016: Transferred to Royal Children’s Hospital from custody in Parkville after suicide attempt
·2 July 2016: Presented to Royal Children’s Hospital Emergency Department (‘RCH ED’) due to ‘insufficient oral intake’
·15 July 2018: Ms Brown reported that she had had 21 presentations to RCH ED by this stage
·19 October 2018: Medical admission to hospital after being found by police with a razor blade and attempting to jump off bridge; high blood alcohol level. Absconded 3 days later.
·23 October 2018: Re-admitted to RCH
·25 October 2018: High dependency unit at Banksia Ward. Absconded on 7 November 2018 by climbing over a fence – returned to Parkville. Formally discharged on 17 December 2018
·19 December 2018: Taken by Police to RMH ED
·28 December 2018: Attended RMH ED with wound to forearm but declined stitches
60 As at the date of Dr Carroll’s report, Ms Brown was prescribed quietiapine, a sedative antipsychotic medication often used to stabilise mood and to reduce anxiety; and agomelatine, an antidepressant.
61 By reference to the World Health Organisation International Classification of Diseases-11 Diagnostic Framework (ICD-11), Dr Carroll diagnosed Ms Brown as having a severe personality disorder with detachment and a borderline pattern.
62 At paragraph 345 of his report, he detailed the particular features that Ms Brown displayed as:
• a pervasive pattern of detachment from social relationships;
• a restricted range of expression of emotions in interpersonal settings;
• a tendency to solitary activities;
• little interest in sexual experiences;
• restricted ability to take pleasure in activities;
• an outward display of emotional coldness, detachment, and flattened affectivity;
• a pervasive pattern of social inhibition, feelings of inadequacy and hypersensitivity to negative evaluation;
• avoidance of activities that involve significant interpersonal contact because of fear of criticism;
• an unwillingness to be involved with people unless certain of being liked;
• a preoccupation with criticism and rejection in social situations;
• associated inhibition in interpersonal situations; and
• a view of herself as being socially inept and inferior to others.
63 Dr Carroll (at paragraph 350 of his report) expressed the opinion that Ms Brown displayed a number of features consistent with the ICD-11 borderline pattern:
· an unstable sense of self;
· impulsivity in areas including substance use and binge eating;
· recurrent suicidal behaviours and self-mutilation;
· mood instability;
· feelings of emptiness;
· difficulty controlling anger; and
· transient, stress-related, dissociative symptomatology.
64 Dr Carroll was specifically asked about the relationship between Ms Brown’s condition and the offending and found that the motivating factors relating to the offending before the court all relate to her severe personality disorder and that there is a substantial causal link between her mental disorder and her offending.
65 Dr Carroll noted that Ms Brown’s repeated fire setting has been repeatedly flagged well in advance when she has stated to multiple people that she intended to set fires because she wanted to return to Parkville.
66 The relevant distal factors that are said to have underpinned the fire on 29 December 2018 are identified by Dr Carroll (at paragraph 371 of his report) as:
· her continuing to pine for a return to Parkville Youth Justice Centre - a place to which she continued to feel emotionally attached, as well as possibly a desire to reunite with friends who remain there;
· a long-standing sense of inadequacy with respect to facing adult levels of responsibility (stemming from her personality dysfunction): it is probably no coincidence that this most dramatic fire occurred a fortnight after she turned 18;
· her paradoxical insensitivity to the impact of her fire-setting behaviours on others - part of her 'detached' personality traits; and
· her having progressively learned that setting fires is, for her, an emotionally gratifying experience, associated with a rewarding sense of being able to exert control over a world that she finds frightening, threatening and alien as a result of her personality dysfunction.
67 Dr Carroll regards Ms Brown’s smuggling of a razor into custody as reflective of a sense that she only feels safe when she has means to engage in deliberate self-harm.
68 In respect of the considerations outlined in Verdins, Dr Carroll considered that Ms Brown’s personality disorder:
· had a “very significant” impact on her ability to exercise appropriate judgment, both in the sense that the offending behaviour was engaged to facilitate her return to custody, which itself was motivated by her lack of ability to integrate into society due to her disorder; and secondly, that she could not understand the impact of her fire-lighting behaviour “to the extent that a person without personality disorder would”;
· contributed to her making irrational choices, although there was no evidence that her thinking was disorganised or that she was not calm, consistent with an organised, delusional belief system;
· caused her to fail to experience the inhibitory mechanisms that most people would experience;
· prevented her from having any emotional awareness that the conduct was wrong on a “deeper moral level”, despite her understanding that her conduct was legally wrong (given her motivation for the behaviour was said to be for the purpose of being returned to custody);
· contributed causally to the commission of these offences, as any causal explanation for her offending without reference to personality disorder would be “fatuous and empty”.
69 Dr Carroll described the impact of incarceration on Ms Brown as having been positive at first in removing her from risk factors in the community, but he described imprisonment as being counterproductive for her in the long term in terms of her rehabilitation and risk mitigation. His view was that Ms Brown will “eventually begin to suffer more than the average prisoner because of her personality disorder”. He pointed to her attempts to return to Youth Justice custody at Parkville as early manifestation of institutionalisation.
Ms Brown’s prognosis and future care
70 Looking ahead, Dr Carroll considers that Ms Brown’s severe personality disorder will continue to affect her for the foreseeable future and that her condition will critically depend on how well she responds to treatment and supervision.
71 Dr Carroll indicates that Ms Brown’s disorder profoundly affects her ability to cope with life’s demands, whether that be in the community out of custody or youth detention. Her stated reason for wanting to return to Parkville was that she wished to engage in deliberate self-harm. Dr Carroll considers that she is vulnerable to the influences of youthful offending peers and has already picked up specific substance use habits from other inmates at Parkville.
72 Dr Carroll expected Ms Brown’s condition to improve rather than deteriorate when in adult custody but anticipated periodic setbacks. This Court was informed that, following her most recent self-harming behaviour, Ms Brown was transferred from a mainstream unit back to Marrmak.
73 Despite acknowledging risk factors for offending of a similar nature, Dr Carroll expresses the opinion that there are reasonable prospects for rehabilitation. Those prospects are contingent on a “long-term, intensive, tailormade, bespoke rehabilitation plan both in custody and subsequently in the community”.
74 Her future risk management requires the collaborative involvement of clinical services and Victoria Police, and appropriate information-sharing in order to buttress public safety.
75 A report from Multiple and Complex Needs Initiative (MACNI) was tendered as an exhibit on the Plea, on the letterhead of the Department of Health and Human Services, dated 17 September 2019. The document outlines accommodation and treatment services that will be offered to Ms Brown, on behalf of Jesuit Social Services (JSS) as the proposed ‘direct support agency’.
76 The report relevantly notes that “It is often the case with clients referred to MACNI that the biggest challenges are not posed by the client themselves, but rather by the lack of capacity for the service system to respond to the client’s unique set of needs.”
77 The MACNI report outlines that care plan coordination (CPC) has been in place since 2017, overseen by Ms Sharon Taafe of NEAMI National, and recommends that this be ongoing at a rate of 12 hours per week. Referral to the Forensicare Problem Behaviour Program (PBP) is recommended upon Ms Brown’s release into the community.
78 With regards to accommodation, the authors report that Ms Brown has struggled with intensity of the 2:1 staffing support model in place previously. The proposed housing instead involves Ms Brown living independently in a private rental property, with a sprinkler system to be installed, and staffing support to be provided on a 1:1 basis for six hours per day, seven days per week. At the time of the report, JSS required a lead time of three months to source the property and staff. Under the proposed plan, Ms Brown would be able to access staff support via phone or SMS outside the scheduled staffed hours, as required. The Forensicare PBP will provide secondary consultation to JSS and will assist in the development of a Behaviour Support Plan for Ms Brown.
79 The report further recommends significant allocation of resources for staff support and capacity building, to cope with Ms Brown’s specific constellation of needs, and the difficulties staff may encounter managing her behaviours. JSS will be supported by the psychology consultancy organisation SALTIE in this regard.
80 The report also recommends Ms Brown be given the opportunity to continue her education in her areas of interest, which are reported to be computer skills and art. In respect of her mental and emotional health, it is recommended that the CPC staff liaise with the local area mental health forensic clinical specialist and a local GP to ensure continuity of any medication, as well as putting in place a multi-agency crisis plan. These arrangements are contingent on the locality of her eventual placement in the community.
Personality disorders and O’Neill
81 In the course of his oral evidence Dr Carroll stated that depending upon their severity, personality disorders cause varying levels of functional impairment and/or distress. He noted an increasing level of convergence between the two most commonly used diagnostic frameworks, DSM-V and ICD -11, in that neither sought to preserve a rigid categorical distinction between, on the one hand, a clinical disorder such as schizophrenia or bi-polar disorder and, on the other hand, personality disorders. There is no basis for the proposition that on a continuum of impairment and distress, conditions such as schizophrenia or depression are higher on the scale than personality disorders. The distinctions are to do with their temporal stability rather than their effect on the severity of functional impairment or of distress. Dr Carroll contended that any experienced psychiatrist or psychologist would say that amongst the most distressed people that they have worked with over the years of their career will be the people with serious personality disorder.
82 Professor Ogloff agreed with Dr Carroll. Professor Ogloff said that personality disorders cause disruption within four areas of ability: cognition, the way people think about themselves, the world, and how they fit; mood and emotional regulation, affecting how people feel emotions; interpersonal dysfunction, the measure of one’s ability to form and maintain healthy relationships; and impulse control. Personality disorder is diagnosed where at least two of these domains are impaired. It was Professor Ogloff’s evidence that personality disorder is often described as exactly “how an individual is able to see themselves and see their world and see themselves in that world.”
83 Dr Carroll was not alone in his criticism of O’Neill. Professor Ogloff also thought that O’Neill should be reconsidered. He challenged the framework which distinguished between clinical disorders such as schizophrenia and personality disorders. He said that both of these ‘types’ of disorders can each be present to varying degrees, be susceptible to treatment to varying degrees, and affect an individual’s experience of the world to varying degrees. Seeking to draw a distinction between the impact on an individual of a clinical disorder and a personality disorder is, in Professor Ogloff’s opinion, “quite arbitrary”. He suggested the enquiry is more meaningfully directed towards the presence of a disorder having an effect on the areas of functioning outlined above, the severity of that effect, and finally, connecting that with considerations required by the Crimes (Mental Impairment and Unfitness to be Tried) Act or Verdins.
84 Professor Ogloff noted that the issue is magnified when courts are faced with expert reports that are found to be lacking a rigorous analysis of disorders and their relation to Verdins considerations. He referred to an assumption that is sometimes made by clinicians that “because a disorder is present it’s axiomatic that it’s somehow related then to principles such as Verdins principles, when in fact you could have disorders like major depression on a scale, or even psychotic illnesses on a scale where they might be completely related and they might not be related.”
85 This Court was furnished with the definitions of personality disorder as described in DSM-V and ICD- 11. For the purposes of this case, the ICD definition of severe personality disorder is included.
Diagnostic Statistics Manual (DSM-V)
86 “A personality disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.”
International Classification of Diseases (ICD-11)
87 “Personality disorder is characterized by problems in functioning of aspects of the self (for example, identity, self-worth, accuracy of self-view, self-direction), and/or interpersonal dysfunction (for example, ability to develop and maintain close and mutually satisfying relationships, ability to understand others’ perspectives and to manage conflict in relationships) that have persisted over an extended period of time (for example, two years or more). The disturbance is manifest in patterns of cognition, emotional experience, emotional expression, and behaviour that are maladaptive (for example, inflexible or poorly regulated) and is manifest across a range of personal and social situations (that is, is not limited to specific relationships or social roles). The patterns of behaviour characterizing the disturbance are not developmentally appropriate and cannot be explained primarily by social or cultural factors, including socio-political conflict. The disturbance is associated with substantial distress or significant impairment in personal, family, social, educational, occupational or other important areas of functioning.”
ICD - 6D10.2 Severe Personality Disorder
88 “All general diagnostic requirements for Personality Disorder are met. There are severe disturbances in functioning of the self (for example, sense of self may be so unstable that individuals report not having a sense of who they are or so rigid that they refuse to participate in any but an extremely narrow range of situations; self-view may be characterized by self-contempt or be grandiose or highly eccentric). Problems in interpersonal functioning seriously affect virtually all relationships and the ability and willingness to perform expected social and occupational roles is absent or severely compromised. Specific manifestations of personality disturbance are severe and affect most, if not all, areas of personality functioning. Severe Personality Disorder is often associated with harm to self or others, and is associated with severe impairment in all or nearly all areas of life, including personal, family, social, educational, occupational, and other important areas of functioning.”
89 On the evidence before this Court I accept the opinion of Dr Carroll that Ms Brown has a severe personality disorder which constitutes an impairment of her mental functioning and which has strong causal links to the offending.
Interpreting O’Neill
90 However, despite the submission to the contrary made by Mr Marsh as to the interpretation to be accorded to O’Neill, I am proceeding on the basis that O’Neill stands for the broad proposition that personality disorders do not enliven Verdins principles and that I am bound by that decision. It is to that decision I now turn.
91 Mr O’Neill was diagnosed as suffering, at the time of the offending, from a Dependent Personality Disorder with Prominent Features of Narcissistic Personality Disorder.
92 The Court of Appeal found that the trial judge had erred in applying Verdins reasoning to the question of whether the offender’s personality disorder moderated his moral culpability for the offence. The Court held:
[71]: “While the Court in Verdins regarded the particular diagnostic label as not being determinative, the principles expressed have always been confined to cases in which the offender suffered an impairment of his or her mental functioning. They do not apply to personality disorders such as those from which [Mr O’Neill] suffered.”
At [72] citing R v Hayes [2010] QCA 96 with approval:
“There is no substance in the submission the applicant’s borderline personality was not taken into account in determining the appropriate sentence. It was irrelevant. A prisoner’s mental illness which reduces her capacity for judgment or understanding, or ability to control behaviour, and therefore reduces the moral blameworthiness in the offending is rightly regarded as an important mitigating factor in the sentencing process. It is my understanding that the law has never regarded personality disorders as having this effect. This is for the reason that they are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it. A personality disorder is a description of a personality type, or the traits which define the person and the person’s predominant modes of behaviour. The personality type becomes a disorder when the traits become manifest in behaviour which ‘deviates markedly from the expectations of the (person’s) culture’, and leads to ‘distress or impairment’.” [Emphasis added]
93 In Hayes the Court did not have the advantage of the expert psychiatric evidence about personality disorders that has been received in this proceeding. Nor did the Court in O’Neill. Further, as I remarked during the plea, the decision in O’Neill occurred against the backdrop of a significant number of plea hearings in this jurisdiction where personality disorders were said to enliven Verdins on the basis of a flimsy psychological report in which a forensic psychologist had a video-conference of short duration with an offender and where little or no attempt was made to establish the severity of the personality disorder or its connection to the offending.
94 However the Court in O’Neill did accept that the respondent’s personality disorder was still relevant to the sentencing synthesis outside the Verdins framework:
[96] “The respondent’s complex personality matrix was not, however, irrelevant to the sentencing synthesis. The evidence of Dr Barth was relevant and of substantial importance in explaining why the respondent, in response to the humiliating remarks made to him by his partner, exploded in a fit of rage in the course of which he murdered his partner. That explanation was of central importance in making an informed assessment of the respondent’s moral culpability for his offending conduct.”
[97] “The determination of an offender’s moral culpability does not depend, solely, on an objective assessment of the actions and conduct of the particular offender. Such an assessment necessarily involves a careful consideration of matters personal to the offender, which may provide an appropriate explanation as to how, particularly in a case such as this, a hitherto law-abiding person has, in an outburst of uncontrolled anger, committed such a serious crime.”
95 In Victoria, O’Neill has been interpreted broadly and narrowly.
96 In Di Paolo v R [2019] VSCA 194, the offender was diagnosed with a narcissistic personality disorder. Priest and Niall JJA and Lasry AJA determined that the trial Judge’s rejection of the application of all the principles developed in Verdins was correct, and was consistent with the decision in O’Neill.
[107] “…the applicant was diagnosed with a personality disorder, but not a mental illness. That distinction is critical for the application of Verdins following this Court’s judgment in O’Neill. The Court in that case concluded that whilst diagnostic labels were not determinative, the principles are confined to cases where the offender suffered an impairment of their mental functioning and do not apply to personality disorders.”[Emphasis added]
97 To my understanding, in this jurisdiction O’Neill has been widely understood as excluding personality orders from Verdins considerations.
98 However several decisions have relied upon a narrow interpretation of O’Neill.
99 In DPP v Bruno [2018] VSC 822, the Court held that Verdins principles did apply to moderate the sentence for an offender who suffered from severe schizoid personality disorder. Coghlan J distinguished the case from O’Neill because of the offender’s “particular type of personality disorder and that the part of the disorder displayed in your offending and behaviour generally.” [39]
100 More recently in DPP v Herrmann [2019] VSC 694, Hollingworth J held that Verdins did apply to moderate sentence where the offender had a severe personality disorder. Her Honour explicitly interpreted O’Neill in line with a narrow view:
[81] “…the Court of Appeal’s brief observations that Verdins principles did not apply to personality disorders ‘such as those relied upon in this case’ should be understood only as referring to the particular personality disorders in that case…”
101 In that case Her Honour also noted the relationship between decreased moral culpability and an increased need for community protection.
102 In DPP (Acting) (Tas) v CBF [2016] TASCCA 1, the relevant disorder was a narcissistic personality disorder, as well as depression. The Tasmanian Court of Criminal Appeal held that it was open to the sentencing judge to apply Verdins principles in sentencing the offender. The Tasmanian Court distinguished this from O’Neill’s, saying that case was “quite different from this one” [41]
[41]“Although the precise mechanisms by which the respondent's condition caused or contributed to the offending may have remained unclear, a finding, on the balance of probabilities, that the respondent was suffering significant mental impairment, and that this was operative at the time of the offending in a relevant way was plainly open.”
103 In DPP (Cth) v De La Rosa [2010] NSWCCA 194 the following principles were formulated at [177] (citations omitted):
“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing:
o Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
o It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
o It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.
o It may reduce or eliminate the significance of specific deterrence.
o Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence… Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.”
104 McClellan CJ at [178]: “…the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process”.
105 Although De La Rosa was decided before O’Neill there is no suggestion that personality disorders should be excluded from the operation of these principles.
106 For example in Quinn v R [2018] NSWCCA 297, involving the murder of the offender’s spouse, the sentencing judge considered and found that the offender’s borderline personality disorder operated to diminish his moral culpability but only to a small degree. On appeal the findings of the sentencing judge were undisturbed.
107 In Dean v R [2015] NSWCCA 307 the Court dismissed an appeal whereby the sentencing judge accepted there was a causal connection between the offending and the appellant’s mixed narcissistic and histrionic personality disorder, but assessed it as a relatively limited impairment against the scale of criminality. In so finding the Court did not make any general pronouncement about the applicability of De La Rosa principles to personality disorders.
108 The NSW bench book emphasises that the principles are “not absolute in their terms and there is no presumption as to their application.”
Sentence
109 In my view, in addition relevance of Ms Brown’s age, without the restrictions I regard as imposed by O’Neill, I would give very considerable weight to Verdins considerations. The enlivening of Verdins would have materially reduced the sentence to be imposed. In particular I regard the pervasive intensity of her personality disorder as considerably reducing her moral culpability and the application of both general and specific deterrence. It is also relevant to the disposition imposed and to the need to provide accommodation and treatment within the community and to minimise the risk of institutionalising a teenage girl.
110 I acknowledge the relevance of protection of the community to the sentencing process and the justified concern about Ms Brown’s maladaptive response to her situation by lighting fires. This can best be achieved within the community by consistent support and a real level of supervision.
111 Regrettably, there has been considerable delay in obtaining accommodation and fitting it with a sprinkler system.
112 On Charge 4, being the arson of the Travancore property, Ms Brown is sentenced to 15 months imprisonment.
113 On each of the Charges 1, 2 and 3 being the fires lit in supermarkets Ms Brown is sentenced to 3 months imprisonment. One month of the sentence in respect of each of those charges is cumulative upon the sentence imposed on Charge 4 and upon each other.
114 On each of the uplifted summary offences of assaulting and resisting an emergency worker on duty Ms Brown is sentenced to 7 days imprisonment. Those sentences are concurrent with previous orders.
115 On the charge of bringing a razor blade into a prison Ms Brown is sentenced to 14 days imprisonment. That sentence is concurrent with previous orders.
116 The total effective sentence is 18 months imprisonment.
117 Pursuant to s.18 (4) of the Sentencing Act, I declare 430 days of pre‑sentence detention and direct that the records of the court record an entry to that effect.
118 I make a disposal order in the terms sought.
119 I am unable to indicate the sentence that would have been imposed if Ms Brown had not pleaded guilty. In part that sentence would depend upon the reception of expert evidence that might assist the Court in understanding why she had run a trial in the face of such strong evidence against her.
120 HIS HONOUR: Can I speak to you briefly, Daylia. You need not stand. I rather doubt that there is anything I can say that will make you happier about your connection with the world or allow you to feel better about yourself. I wish I could. All I can do is give you an end date for your imprisonment and hope that the housing and supports that are in place will assist you in the future.
121 The effect of my sentence is that you will be released towards the end of June or thereabouts. By that date there will be housing and Jesuit Social Services will have a responsibility, along with other supports, to assist you. I very much hope that helps.
122 I am sure you understand how terrible it would be if innocent people got hurt or killed as a result of setting a building or a property alight. You must not do such things.
123 As I previously indicated, I have always understood that this case, together with Herrmann will find its way into the Court of Appeal and resolve the vexed issue of whether O'Neill precludes the enlivening of Verdins principles in respect of personality disorders. Counsel will well understand that, for my part, I am most sympathetic to the proposition that O'Neill should be looked at again.
124 In my view the expert evidence in this case has been compelling and I would hope that in severe cases of personality disorder, where cogent evidence is produced which establishes both the disorder and the connection of that disorder to the offending, in future Verdins can be enlivened.
125 Having said that, I have taken a view that I am unable to sentence on that basis in this case because O'Neill precludes that approach. I thank counsel for their assistance throughout the case and I genuinely say that it is appreciated.
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