Director of Public Prosecutions v Carolan

[2015] VCC 959

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 15-00526

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOUGLAS MICHAEL CAROLAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	1 June 2015
DATE OF SENTENCE:	1 June 2015
CASE MAY BE CITED AS:	DPP v Carolan
MEDIUM NEUTRAL CITATION:	[2015] VCC 959

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	Office of Public Prosecutions
For the Offender	Mr S. Norton	Stary Norton Halphen.

HIS HONOUR: 

1On 2 October 2014, you were in the grip of a psychosis brought on by your use of ice.  You came to believe there were people in your unit and following you and generally causing you to be paranoid.

2You made paranoid and delusional threats to these non-existent people that if they did not leave you would set fire to the unit or set a fire and smoke them out.  You spread some accelerant on your couch when the voices and your delusional sense that the people were still in the house had not abated, you lit the couch.

3You then left your flat with the doors wide open.  Smoke was billowing out.  A  neighbour tried his best to stem the fire and called the Fire Brigade.  As it turns out the whole unit was damaged, and will now have to be demolished as a result and re-built. 

4However, the Crown put the case against you that you believe your actions were more likely than not to result in damage to the property, being damaged by smoke, but you did not foresee the actual unit catching fire.

5You drove off to Buckley Falls and then after a time you drove to your
ex-partner's house in Belmont.  There you broke into her house, accusing her of sending the people to follow you and the like.  You held a knife towards her and took her outside.  She was able to call the police who arrived as you were still holding the knife.

6When the police told you to drop the knife, you slashed at your own neck causing superficial wounds.  Nonetheless, your actions bespeak of an ongoing disturbed  mind.

7Once you were cleared as fit for interview, you did not dispute the key allegations.  You made it clear you wanted, in setting fire to the couch, to rid your unit of the people you thought were there.

8As I have said, ultimately the matter resolved with your plea of guilty to the arson on the basis that I have just outlined.

9The way the case was put has altered.  It has crystallised in recent days; thus I can, and will, attribute to you the full weight of an early plea of guilty.

10Your plea is an expression of remorse.  It is not the only expression of remorse.  You said as much in your record of interview.  You have spoken to your sister while on remand and she told me of your remorse.

11Genuine remorse and insight are important matters.  If they are present then the community is likely to be more comfortable with a more merciful sentence than might otherwise be the case.

12I will turn to your growing insight into your drug problem and its consequences shortly.     Before moving to matters personal to you, I need to make clear that arson is a serious and dangerous crime. 

13As it turned out, your unit was provided to you by the Department of Human Services.  Public housing is a precious resource; there are too few public houses or units for the needy.  The loss of the premises is no small matter, although all of this is said in light of the way the matter settled.

14But, likewise, breaking into your ex-partner's house while armed is serious criminality.  She was entitled to feel safe from you in her own home.  However, in my assessment of your moral culpability, I cannot avoid the key reason as to why you did what you did on that day.  You were seriously mentally disturbed by reason of the effects of ice.

15I have the read the reports of Dr Ong in this regard who has seen you, and in turn provided assistance to your lawyers in two reports.

16You had not offended in this or a like way before while using ice.  Nonetheless, you had been using for some time such that your family, and especially your sister, it seems, had taken you to the psychiatric outpatient clinic in Geelong at the Swanston Centre, and sought out help for you.

17It seems you simply found it too hard to break the grip that ice had on you, but I take into account that you had been a drug user for some time before you offended.

18But, in the end I will reduce the impact of denunciation and the punishment of you, by reason of your moral culpability being lower as a consequence of your drug induced, but, nonetheless, impaired mental functioning.

19In my view, no other reduction or increase in your sentence is necessary by operation of the principles set out in The Queen v Verdins and, sensibly, nothing else was sought by your counsel.  I do not ignore that you have been in prison for the first time and it took some time while you were there to be rid of your paranoia; however, the work of the psychiatrist in the prison has seen you helped.  You now have a clearer perspective and, as I noted earlier, all important insight into the diabolical problems that using ice brings.

20You are still only 26, the youngest of five children.  Your family life first in Moe and then in Geelong was dysfunctional.  Early in your life your mother took up with a new partner who was violent to her and to others in your family, in your presence.

21That partner was an intravenous drug-user and your mother took up that as well.  Sadly, she died of a drug overdose.

22You gained little from school, leaving because of practical difficulties in getting yourself there when in Year 9.  You were more or less on your own at the time.  You have not had sustained employment since school.  You have three children to your ex-partner.  You are close to them and miss them since you have been on remand.  Your sister sees your children regularly and said in her very helpful evidence that they miss you.  In all likelihood if you remain drug-free, you will be able to see them and build or re-build a relationship with them.

23Despite, or maybe because of your difficult upbringing, your siblings remain close and very supportive.  This seems to me to be a key.  One of your brothers, I think slightly younger than you, has moved to Melbourne, bought a house and works as a scaffolder.  He is willing to have you live with him and his partner and, importantly, work with him as well.  The discipline of regular work cannot be overstated for someone who has been idle for too long and too readily took to drugs.

24You used cannabis while in your teens and quickly developed a problem with that and with alcohol.  You also used amphetamines from your teenage years, but it is only in later times that you have used the more devastating form of that drug, methylamphetamines, or ice.

25You were able to maintain your long-term relationship with the mother of your three children.  You and she met as teenagers and were parents very young, but that deteriorated as you were using ice.

26You were injured when intoxicated resulting in a partial amputation of your left ring finger.  You were prescribed morphine for that and quickly came to abuse that medication as well.

27In custody you have been prescribed the anti-psychotic drug, Olanzapine.  This has worked well.  You can see now the impact of ice on your thoughts, and how delusional and paranoid you had become.  This feeling of being out of control is one you now are determined will never happen again.

28Your motivation, Mr Carolan, is important.  You will have to remain determined to stay away from drugs; no easy matter.  You will need support. 

29Your prior criminal history is not of significance to my task, save, it seems, that you got through a community-based order in 2009 or thereabouts, though you did not give up drug use.

30You have used your time productively in prison and that is to your credit.  Counsel urged I impose a community-corrections order in addition to imprisonment.  He contended the time that you have served thus far, 242 days, was sufficient, and with a targeted and onerous community-corrections order, all sentencing purposes could thus be properly met.

31The prosecution contended, it seems, that the combined community-corrections order and gaol was within range, but that in order to meet the gravity of the offences and the need for deterrence, the time spent on remand was not sufficient.

32The Court of Appeal has said in the decision of Boulton v The Queen:

"Community-corrections orders have the benefit of enabling punishment and rehabilitation to be achieved simultaneously, something not readily achievable in prison."

33Also, the Court of Appeal has made clear that previous thinking about imprisonment being the only appropriate option for offences such as these, now has to be reconsidered.

34I consider your prospects of complete reform are reasonably good.  You will need long-term supports, as I mentioned.  The best way that that is achieved is by a lengthy community-corrections order. 

35I have thought anxiously as to whether in all the circumstances the incarceration component was met by time served; that is, the 242 days or about eight months.  In the end I am of the mind that it is not sufficient for these serious crimes, even taking into account your impaired mental functioning, and your insight that has developed since.

36Grave as it always is to sentence anyone to prison, I consider the only just and appropriate sentence is longer imprisonment and a community-corrections order.

37Mr Carolan, can you please stand. 

38Doing the best I can, for the crime of arson, Charge 1, you are sentenced to seven months' imprisonment.

39For the crime of aggravated burglary, you are sentenced to ten months' imprisonment.

40Two months of Charge 1, the arson, is to be served cumulatively on Charge 2, giving a total period of incarceration of 12 months.

41In addition, for charges 1 and 2, and for the offence of common law assault,
I order that you be placed on a community-corrections order for three years.  There will be the usual mandatory conditions which I will explain, also program conditions, or conditions that apply to you as follows.

42You must do unpaid community work for 250 hours over the three years.  You have to undergo treatment for drug abuse.  You have to undergo treatment for mental health problems.  You have to be under the supervision of the Community Corrections Officers and do other programs as directed by them.  That will endeavour to reduce your risk of re-offending.

43A document will be produced and the conditions will explain to you, before it is provided to you, and if you consent you sign that document.

44You have already served 240 days in prison.  I declare that the 240 days is part of ‑ ‑ ‑

45MR LEWIS:  I'm sorry, Your Honour, it's 242.  I initially said 240.

46HIS HONOUR:  And so I had it written in front of me as 242, and I just said 240, did I?  242.

47The 242 days that you have served I declare is part of the sentence that
I have just imposed.  I will ensure this declaration is entered into the records of the court, so there is no doubt in the prison authorities that you have already served 242 days of the sentence that I have imposed.  The best part of eight months, four months to go.

48Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of three years with a minimum of two.

49The prosecution has sought a forensic sample from you.  That is, a scraping from your mouth so that your DNA can be extracted and placed on a database. 

50I have considered that application and I propose to grant it.  The reasons for that are the seriousness of the offences that you committed.  Your prior criminal history to a limited degree, that it is in the interests of justice that you provide a forensic sample and, in the end, through your counsel, you consented to such an order.

51I have to tell you, Mr Carolan, that when the authorities come to get the forensic sample from you, if you do not co-operate, they are authorised to use reasonable force to obtain the sample from you.  The way through it, of course, is to do as you have said through your counsel, consented to the order, so co-operate with them.

52There is another application, that is, for disposal of some items connected with the crime and I propose to grant the application for disposal of those items.

53Is there anything further?

54MR NORTON:  No, Your Honour.

55MR LEWIS:  No, Your Honour.

56HIS HONOUR:  Thank you.  Be seated, Mr Carolan, while some documents are produced.

57Just on the 464 application, Mr Lewis, it seems to leave gaps for all charges on the indictment and the number of the indictment, I think, something or other; I have not noticed it before, but it just looks like some gaps that perhaps you could fill in.

58MR LEWIS:  Certainly, Your Honour, just excuse me.  I see.  No, I understand the gap was just left there, Your Honour, because it depended on which charge Your Honour wanted to make the order, be it just the aggravated burglary or all of them, so ‑ ‑ ‑

59HIS HONOUR:  Can I do it on the common law assault?

60MR LEWIS:  I believe you can, Your Honour, yes.  Yes, right.

61HIS HONOUR:  Makes no difference to me, everything.

62MR LEWIS:  Yes.

63HIS HONOUR:  Mr Carolan, the community-corrections order will be for three years.  It is lengthy, Mr Carolan, you will be under supervision to be near on 30; you will be a bit short of that, but there it is.

64What has occurred is that on the anticipation that you go and live in the northern suburbs with your brother, you have to report or attend at the Greensborough Community Corrections Service, which is 4/18 Sherbourne Road, Greensborough; it is on the document, but that is where you have to go within two clear working days after the commencement of the order, and the order commences once you are released from prison.  So as soon as you get out, go there.  Follow?

65OFFENDER:  Yes.

66HIS HONOUR:  These following conditions apply to everyone who is on a community-corrections order, and they apply to you obviously, and they are important.  I am not just reading them out one after the other as if - just to get to the bottom of them - and the first one is very important.

67You are not to commit another offence for which you could be imprisoned during the time that this order is in force.  That is three years.

68Almost every offence you can think of is punishable by imprisonment, so the way forward is to commit no crimes in the next three years.  Well, do not commit any crimes ever, but if you in the next three years commit a crime punishable by imprisonment, you will come back here and all the mercy and sympathy for you, as it were, because of where you got yourself, well, that will be out the window.

69You must comply with any obligations and requirements under the sentencing regulations.  The best I can make of all that at the moment is they take your photograph and make sure they know who you are.  You have got to comply with all that.

70You must report to, and receive, visits from the Office of Corrections.  You must let the Community Corrections Officers know within two clear working days if you change your address or your job.  That is important, keep them informed of what is happening.

71You must not leave Victoria without getting permission to do so and you must obey all lawful instructions and directions from the Office of Corrections.

72Now the conditions that apply just to you, are that you must perform 250 hours of unpaid community work over the three years.

73You have got to turn up on time every time.  You have got to fit it in with the work that your brother might have for you.  They will be flexible, I am sure, if you keep them well informed, but only to a point.  You have got to get this done, and you have got to turn up when you're rostered to do your community work; on time, stay the whole time, and do not squib out of it for any reason.  Do you follow?

74OFFENDER:  Yes.

75HIS HONOUR:  You must be under the supervision of the Community Corrections Officers for three years.  You must undergo assessment and treatment for drug abuse and dependency as directed by the regional manager.  Right.  That is the key.  They will provide you with some assistance.  Take it up.

76You must undergo any mental health assessments and treatment that they arrange for you, and you must participate in programs and courses that might address your offending.  So take that up as well.  It is all directed to keeping you out of trouble, and thereby developing a relationship with your children over time, and not going back to gaol.

77But if you breach any of this, well, you will more than likely, when you come back here, I will have no other option just to return you back to gaol.  Do you follow?

78OFFENDER:  Yes.

79HIS HONOUR:  Right.  Sign that if you consent to it.  Your instructor can go down the back and provide it to Mr Carolan.

80All right, the other orders are signed and they will be provided to the parties. 
I am grateful to counsel for their considerable efforts in relation to this matter.  It almost became part of the thinking of some on the Bench that these days barristers work hard, but it is kept to nine to five, or something like that.  I have not been of that view, but it has been confirmed that those involved in this case worked over the weekend and I am very grateful to you all for that, and Mr Carolan, no doubt, is, as well.

81Mr Carolan, you have to head down to the cells.  Your family and sister and the like will be able to see you in due course, but not here in the court room or at the court house.

82Thank you.

83(Offender removed.)

84Thank you again, Mr Norton and Mr Zingler. 

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