Director of Public Prosecutions v Bryce

[2024] VCC 330

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01139

DIRECTOR OF PUBLIC PROSECUTIONS

v

KELLIE BRYCE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2024
DATE OF SENTENCE:	19 March 2024
CASE MAY BE CITED AS:	DPP v Bryce
MEDIUM NEUTRAL CITATION:	[2024] VCC 330

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  Arson - Intentionally causing a bushfire -Mental Health

Legislation Cited:           Mental Health & Wellbeing Act

Sentence:  2-year Community Corrections Order  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Chris Brydon	Office of Public Prosecutions
For the Accused	Ian Michaelson	Michaelson Lawyers & Associates

HIS HONOUR:

1The sentencing task I have in imposing a just and appropriate sentence on Kellie Bryce has been quite difficult due to Ms Bryce's confusions and mental health problems which I will outline.  I in fact sentenced her some week or so ago and indicated I would provide reasons for the sentence at a later point.  These are those reasons.

2On 18 December 2023, I granted Ms Bryce's application for a sentence indication relating to a charge of intentionally causing a bushfire.  I indicated I would impose a two-year community correction order.  She accepted that indication and pleaded guilty.  The plea was adjourned, and I made orders for a community correction assessment report including assessment of her mental health.  Thereafter, Ms Bryce failed to attend or co-operate fully with the community correction assessors, despite significant flexibility and assistance provided to her to help her to attend and to understand the process.  That included the assessment to be done at the Shepparton Court House with
Ms Bryce's lawyer, Mr Michaelson, present to assist.

3Mr Michaelson had explained over and over that the assessment was necessary and that therefore she had to see a mental health practitioner to assess her suitability for a program condition relating to her mental health.  That condition in itself was necessary because Ms Bryce had significant issues relating to her mental health.  Ms Bryce misunderstood the purpose of the mental health assessment, believing it was a CAT team assessment involving prospects of instant detention under the Mental Health & Wellbeing Act.

4On 14 February 2024, Ms Bryce again responded to being told of the mental health assessment by simply walking out of that assessment.  As a consequence of Ms Bryce's lack of co-operation and misunderstandings, she then later failed to appear for her plea and sentence on 23 February 2024.  A warrant for her arrest followed.  She was then arrested on 4 March 2024 and brought before the court that day.  A brief community correction assessment was done whilst she was in police custody.  On that day, in fact late in the day of 4 March 2024, I made the sentencing orders that I had indicated without, as I have already said there and then, providing full reasons for that and indicated that the reasons would follow.

5I have had no doubt throughout this that Ms Bryce needed as much help as can be given to her for her fragile mental health.  Whether she engages beyond this of course is a matter for her.  Just returning to what brought Ms Bryce before the court.  On 10 November 2021, she was walking along a country road being the Katamatite-Numurkah Road in or outside Numurkah.  She was behaving erratically, waving her arms and shouting.  These things were noticed by a passing driver and that driver's passenger.  He later told police that you were upset at the time at a friend who refused to give you a lift into Numurkah. 

6What was seen by the driver and the passenger after passing you on that small country road was that there was a fire in the roadside verge which was then merging into the private farmland.  When you were arrested, it was discovered you had a lighter and cigarettes in your backpack.  This fire that was set did not, by good fortune, spread too far.  It went just under the fence line onto the private land.  I have seen the photographs.  It did require quick work from the Country Fire Authority to ensure that there was no spread.  Of course, any fire in the summer months in rural Victoria is most concerning. 

7To deliberately light a fire is a serious crime.  The maximum sentence is
15 years.  Why you did what you did is impossible to know with any certainty, but your background is one of significant mental health and personality problems.  Those matters are connected to or are a product of Ms Bryce's very significant disadvantage throughout her adult life.  Her difficulties are recognised by the NDIS who provide her now with considerable supports.  I do note that at this point, that despite your difficult circumstances, you have no prior convictions at all now at 45 years of age.

8You were raised in rural Victoria.  You first worked in the local supermarket and as a fruit picker as well.  You married at 21 and had three children.  The relationship deteriorated from 2016 when you took to using methylamphetamines.  The children's care was taken over by the State and then they were placed with their father.  You have experienced homelessness thereafter or at least from 2018.  You have been admitted to the Goulburn Valley Hospital due to suicidal ideation.  You have a diagnosis of anxiety disorder and a borderline personality disorder. 

9Your current accommodation is Shepparton is problematic, in a boarding house with undesirable neighbours preying on you for favours of all kinds.  Your connection with NDIS is positive and hopefully you can continue to work and engage with them.  The crime that you committed remains a serious one.  Arson, especially lighting bushfires, ordinarily must be punished by periods of imprisonment.  Denunciation, deterrence, and protection of the community are all weighty matters.  However, what I must also consider in the exercise of individualised sentencing is your significant problems.

10The Court of Appeal in the guideline judgment of Boulton[1] made it clear that serious crimes can be appropriately punished by a community correction order.  The Court of Appeal emphasised the benefits of a community correction order for an accused, but also for the community.  Little or no rehabilitation or individual treatments do or can occur in prison.  In contrast, a community correction order can provide targeted and dedicated rehabilitation programs and supervision.

[1] DPP v Boulton [2014] VSCA 342

11Because of Ms Bryce’s personality difficulties and resistance to engagement with a community correction assessment, I added to the community correction order what I indicated would be imposed, that she should attend for judicial monitoring.  That will occur on 25 June 2024.  Throughout the time on the community correction order, she will be under supervision and required to be assessed and treated for your mental health problems.  It is hoped, with key assistance from your NDIS workers and hopefully the mental health practitioners, that Ms Bryce, may stabilise.  She is very keen to get to the point of being able to reunite with her children.

12The sentence I impose is a two-year community correction order with conviction.  Program conditions include supervision, mental health programs and judicial monitoring.  This is a merciful sentence in my view, directed at protecting the community from her uncontrolled outbursts such as that which occurred on this day in November 2021 which saw her light a dangerous fire.  I explained all the requirements of the community correction order to her in the previous hearing.  That is, she must not commit any offences punishable by imprisonment in the two years.  Should she do so or not comply with the correction order, she will return back to me for breaching that order and there is likely only one outcome that will follow.

13Those are the reasons.  Thank you.

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