Director of Public Prosecutions v Chapman

[2016] VCC 469

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01558
CR-15-01975

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEIGH NARELLE CHAPMAN

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2015; 16 December 2015 (for mention); 29 January 2016; 17 February 2016; 15 April 2016
DATE OF SENTENCE:	19 April 2016
CASE MAY BE CITED AS:	DPP v Chapman
MEDIUM NEUTRAL CITATION:	[2016] VCC 469

REASONS FOR SENTENCE
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Subject:  Sentencing; arson
Catchwords:             Plea of guilty; 7 fires
Legislation Cited:     Sentencing Act 1991 (Vic) ss6B, 6D, 6E, 6F, 6AAA

Cases Cited:R v Verdins, R v Buckley; R v Vo [2007] VSCA 102; DPP v O’Neill [2015] VSCA 325

Sentence:                TES: 3 years imprisonment with non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Manning	OPP
For the Accused	Mr D. Gibson	VLA

Pages 1 - 24

 

 

HER HONOUR:

1Ashleigh Narelle Chapman, you have pleaded guilty to seven charges of arson.  The maximum penalty for each charge of arson is 15 years' imprisonment, and although you will not be receiving that high a sentence, even in combination, I must and do take into account that that maximum penalty reflects the relative seriousness with which Parliament, on behalf of the community, regards such an offence.

2You have also pleaded guilty to, and agreed to have heard here, a related summary charge of possession of a controlled weapon without excuse.  For that charge the maximum penalty is one year imprisonment or 120 penalty units.

3The first two offences of arson occurred in late March 2015, and the other five over less than a 24-hour period in early September 2015.  You were aged 20 at the time of the first two offences, and had turned 21 by September last year.

4In March last year, you were living at Preston in accommodation owned by the Salvation Army, which provided accommodation for socially-disadvantaged persons.  The adjacent premises were part of the same program and shared a common wall.  At the time, there were three people living in that adjacent residence, and a friend of theirs was also present on the night of your first arson offence.

5Charge 1 relates to a fire at your residence on the night of 25 March 2015.  Shortly before 9 pm, the occupants of the adjoining property heard a female, who turned out to be you, screaming outside their front door, opened it, and found you running towards them screaming for help.  You were screaming that there was a fire inside your bedroom, and you said that your mobile phone was on a charger on your bed and had somehow started the fire.  Two of those neighbours went to your premises, observed flames in a bedroom and mattress on fire, and as the fire seemed too big to extinguish, they left and telephoned emergency services.  By that stage you were crying and apologising to them, and appeared to them hysterical.

6Emergency services attended - eight vehicles and 28 emergency services personnel - and the fire was contained in about 35 minutes.  You were attended by ambulance officers for smoke inhalation, and due to your level of distress, but you were not taken to hospital. 

7On the night, this fire was deemed not suspicious, and no formal investigation occurred because it was attributed to having been caused, as you said, by a phone charger left on a bed. As you later admitted lighting it, these events give rise to Charge 1 of arson. 

8There was considerable damage caused to the property in which you had lived, and minor damage to the adjacent property.  The cost estimates of repairs exceed $200,000, and clearly the residence in which you had been living became uninhabitable. 

9You were provided with alternative accommodation by the Salvation Army in a different house in a nearby street.  Three nights later, in the early hours of 29 March 2015, you knocked on the door of the adjacent property to where you had been relocated, and told the neighbour that he and his family had better get out of the house.  This was at approximately 1.30 am.  The neighbour questioned you, but you walked away, appearing to be very calm.  The neighbour looked through the window of your residence and observed white smoke, and called emergency services, who attended, this time seven personnel and two vehicles.  This fire was apparently readily extinguished.  Entry was gained through a window, and a smouldered pillow was found against a gas heater.  The heater was switched on and a burner on the gas stove was also alight.  The battery powered smoke alarm had failed to operate.  I am told that there was minimal damage caused to that property.  The causing of that fire is the basis of Charge 2 of arson.

10The fact that these fires had been caused by you emerged within an hour or so of the second fire.  At approximately 2.30 am, police who were attending for a different purpose at a McDonald's store in Preston, observed you and asked if everything was all right with you.  You said it was, and left, but shortly afterwards re-entered the store and motioned to police, who approached.  You told them that fire trucks would be going to your house, as you had put some pillows up against the heater and put the gas on, and tried to blow the place up.  Police then cautioned you, and you then told them that you had also set the nearby fire about a week ago.  You said that you were trying to work out the best way to kill your stepfather.  You also said that you were trying to kill yourself, and ran next door to let the neighbour know what was going on. 

11You also told police that you had a knife down the front of your pants, that is, when you were talking to them in the McDonald's store, and police then located it.  That was a 10 cm kitchen knife, which is the basis of the related summary charge of possession of a controlled weapon without lawful excuse.

12You were arrested and conveyed to hospital for a mental health assessment, during which you continually expressed suicidal thoughts and made remarks about wanting to blow up your house, and wishing there were neighbours and police in the vicinity of the blast.  Later that morning you were discharged from hospital and interviewed by police. 

13On examination of the location of the second fire, a note written by you was found, addressed to the Salvation Army and owners of the house apologising for destroying the house and stating that you have “lived a disturbing life” where your own blood did not care and would harm you, and the only person who did has passed away, and indicating that you were trying to kill yourself to be together with her again.

14You participated in a recorded interview, in which you made some more very concerning comments, including that you had thought about hurting people, hurting yourself, damaging property, and about emergency services personnel being hurt attending the respective fires.  You said you were “still feeling the same from the second fire as you had from the first one", but also said that you were, "feeling a little bit different".  You said you had deliberately turned on the gas, this is in the second fire, to make the fire make an explosion, and said that it was an experiment to see what would happen and how much it could harm a person.  You said you wanted to kill your father.  You said the reason you warned your neighbour was you wanted to see the fright in his eyes and the panic to get his family out.  You said that you had thought about, "a big explosion with people in it”, and “there could be limbs gone, and something could explode and go through and hit someone".  There were other disturbing comments, including to harm yourself.  You said you were emotionally upset because the explosion failed.  You said if it had worked, then you would go to gaol, but you would be out and know exactly what you needed to do. 

15You were remanded in custody after that interview, and spent about three months in prison, where your behaviour was troubling, both as to your own safety and state of mind, and towards others.  In due course, you were released on bail. That was in about July last year, under the CISP program, with assistance to obtain housing and access to programs to assist you. 

16From 20 August to 4 September last year, you were a temporary resident in a boarding house located in Whitehorse Road, Mont Albert, which consisted of 47 rooms, and was accommodation for persons linked with the Department of Human Services and mental health agencies.  On Friday 4 December 2015 at about 5 pm, you telephoned the management of this facility and said that you were leaving the following morning.  You said that was to return to Canada, not that I understand you to have any connection with a home Canada.  You said you would be checking out first thing, and would leave the key in the drop box.  At about 9.40 pm the same night, you knocked at the door of another resident and said you would be leaving the next day to return to Canada where you had grown up, and invited the occupant to come to your room for a drink, but that was declined.  You then left and walked towards your room, and shortly afterwards walked past the office with a packed bag, dropped off your key, and left your luggage outside the building near the road.  You returned to your room, then were seen to run from it, and the fire alarm subsequently activated.  Outside the building, you waited near your luggage until fire trucks arrived, and then walked east along Whitehorse Road. 

17Management had gone to your room and observed red flames through the door gap.  The sprinkler in the room activated and extinguished most of the flames, but when the door was knocked open, the room was full of smoke.  Emergency services arrived and evacuated all 37 residents from the building. 

18This fire caused a significant amount of damage to your room and furniture.  It was found that firelighters were located on the burnt couch, mattress and floor, with spent matches found in the debris on the floor.  There was unfortunately further extensive damage done to the building from fire sprinklers and precautionary actions by the fire brigade. Since the fire, the management of this housing facility has experienced extreme financial strain, and it has not reopened.  As a result, 21 long-term residents have been rehoused.  The lighting of this fire is the basis for Charge 3 of arson. 

19Overnight, that is, of the night of 4 September last year, a fire occurred in a rubbish bin outside commercial premises in Rooks Road, Nunawading.  A bin full of rubbish including cardboard boxes had a fire within it over that night, and was found about 10 am the next morning.  The bin had melted and could not be used.  This fire is the basis for Charge 4, of arson. 

20On the same night, a fire was lit in the carport of a residential premises in Rooks Road, Nunawading.  The sole occupant was inside the premises at the time, and was alerted by passers-by of a fire in her carport.  She was able to extinguish the fire before it caused serious damage, and before attendance by emergency services, but police investigation indicated that a plastic table under the carport had been set on fire, probably ignited by means such as a match or lighter onto cardboard boxes that had been put on to the plastic table.  This fire is the basis of Charge 5 of arson.

21About 95 metres from where the fire had occurred in the carport, at approximately 12.10 am, that is, very early morning on 5 September, a resident in Eastbridge Court, Nunawading, and her two children, began to smell smoke.  They searched the house and found a blue tarpaulin on fire in the carport.  It was hanging from the carport roof, alight and melting.  A car was parked in the carport attached to the house.  The resident's 16-year old daughter was crying with panic as all three attempted to extinguish the fire, which took approximately five minutes to be controlled.  When police attended, they located a burnt flannelette shirt, and it was deemed likely that the ignition of the fire was by means of a match or lighter.  This event is the subject of Charge 6, of arson. 

22Finally, in the early hours of 5 September, a patch of scrub was burnt in a small park reserve near Lorikeet Street, Nunawading.  Subsequent forensic examination revealed a burnt area of 20 square metres, near the edge of which they found a suitcase containing clothing, books and papers.  Documents in your name were found in it, including your bail conditions and charge sheets relating to Charges 1 and 2.  The fire was thought to have originated from the suitcase and papers.  The land is owned by the Melbourne Water Corporation, and it is expected that in time, the vegetation will regrow.  This event is the subject of Charge 7, of arson.

23Arson can be a very serious offence, as reflected in the 15-year maximum penalty.  As with most crimes, there is a wide range of situations in which the circumstances might be more or less serious.  Clearly, the circumstances of the first three charges here are very much more serious than the last four.  However, Charges 5 and 6 were in relation to fires lit late at night under carports of residential premises where people were present, and had the fires not been discovered as early as they were, there was the risk of them spreading into those homes, potentially endangering the occupants, as well as their properties. 

24Charges 1, 2 and 3 are all serious incidents in which there was real risk of harm to neighbours and co-residents, and also to emergency workers who attended.  They also each involved a level of forethought or pre-planning by you, particularly the first and third.  Although that might not have been sophisticated preparation, it is clear that you were thinking of what you were going to be doing, and in the first instance, devising a way of making it look accidental. 

25Although on the first two occasions you did go to warn neighbours, and I take that into account, your subsequent comments raise the question of whether you were doing so for purposes other than purely their safety, and also whether you were intending to harm emergency workers who would be called to fight the fires.  There remains some question as to whether you might have been intending harm to yourself, but you left the premises on each occasion. 

26In the third fire at the boarding house, you packed your belongings before moving them out, and then returned to light the fire.  You well knew that there were many other residents present, and many of those residents dependent on that accommodation.  You also knew there was staff who could be hurt if the fire took hold.  You did not warn any of them, that is, residents or staff, about that fire that you were about to light there, nor immediately after you lit it.  Further, you were on bail at the time of the third fire for the first two fires, and that is an aggravating feature of the third offence.

27You now offer no explanation for any of this offending.  You did tell police after the second fire that you were seeking the best way to kill your father, and also said in your record of interview on 29 March 2015 that your intention was not to hurt yourself, but to hurt others.  You have since said that what you told police in that regard you made up.  You would not tell either psychiatrist who has examined you over the last few months the reason or reasons for your lighting of any of these fires. That is, you would not tell Dr Zimmerman, a consultant psychiatrist who assessed you at your lawyers’ request, nor Dr Clayer, a senior registrar in forensic psychiatry, who assessed you more recently for a Forensicare report that I had requested. 

28Even if the reasons which you gave to police for lighting the first two fires were not true, your refusal to discuss your reasons now, particularly for the first three fires, is of serious concern to me in trying to assess the risk of you reoffending.  Ultimately, I cannot make that assessment in these circumstances.  Therefore in deciding how to sentence you, I have taken into account that there is real risk that you might light fires again, whether your aim is to harm yourself, your father, or anyone else against whom you hold a grievance, or people in the vicinity generally, whether they live near you, or may be emergency workers coming to help you or others.  I consider protection of the public to be an important purpose in your sentence for this reason, as well as protecting you from potential future harm.

29You are now aged only 21, and I must bear in mind that for a youthful offender rehabilitation should be given considerable weight as a sentencing purpose. 
A long further term in prison could be crushing for you, and for any resolve you currently have to address your underlying problems.  However, I am of the view that your rehabilitation should not be given such overriding weight as to exclude protection of the public, when it is, as I believe it is here, an important competing sentencing purpose. 

30I have taken into account, in mitigation of your sentence, that you have pleaded guilty to all of these charges.  It seems that the first fire was planned by you with some subterfuge and intention to disguise it as accidental by leaving a mobile phone on your bed with the wrong charger.  Nevertheless, three days later you approached police and admitted to lighting not only that night's fire, but also the earlier one.  On that occasion you also volunteered to them the information that you had a concealed knife on you.  After the second set of fires on the 4th and 5 September 2015, you were easily traced through documents you left, with other belongings, at the seventh fire, and of course it was known by those running the boarding house who had occupied the room and just left it where that fire had started.  It appears that you also admitted your involvement in each of those, the later five fires, soon after them.

31Your pleas of guilty were indicated at an early stage, and there was no disputed committal hearing.  Your pleas of guilty entitle you to significant leniency for saving the community the time and cost of disputed hearings, saving witnesses from the stress and inconvenience of having to give evidence in court, and for your being willing to facilitate the course of justice.  You have clearly accepted responsibility for your offending. 

32You have also made various comments which do, in my view, reflect a level of remorse.  Remorse may also be inferred from pleas of guilty.  In your case, it is difficult for me to conclude the level of remorse you feel, but I put that down to your personality rather than to a deliberate disregard for the impact of these offences on others, because as I have said, at times you have expressed regret truly consistent with understanding the impact of what you have done, and indeed, as I mentioned not long ago, you have even talked of setting about getting a job on your release from prison to be able to start paying back the owners of the property for the damage you caused.

33I have allowed considerable reduction in your sentence for the fact that you pleaded guilty and at an early stage.  I will tell you later what your sentence would have been had you not pleaded guilty but been found guilty on all of these charges.

34I turn now to your personal circumstances.  You are now aged 21.  I am told that you were born and grew up in Queensland, but had a most difficult childhood.  Although you have not given much detail about it yourself, there has been considerable information extracted from files subpoenaed from Queensland and examined by Dr Nina Zimmerman, a consultant psychiatrist who was retained to assess you and prepare a report on your behalf.  I accept from her supplementary report after viewing those materials, that she found information through a file from the Department of Communities, Child Safety and Disability in Queensland, which disclosed that you were removed your mother's care at six months of age due to neglect, but then brought up by your father and his new partner in a household where they applied measures that they called "strict discipline", but which by description, appear to involve both physical and emotional abuse.  Reports to that department when you were aged five and seven reflect injuries sustained at the hand of your father and stepmother, and appalling disciplinary measures for such a young child.  Aged nine, you were referred to Child and Youth Mental Health for assessment for anger, anxiety and behavioural issues, and when aged 15, you were reported for aggressive behaviour at school.  You were commenced on Risperidone medication to settle you down, but were still displaying behaviour likely to isolate you from other children.  A report to the department when you were age 17 reflects that you may have been hit over the head by your father, rendering you unconscious on two occasions.  You were otherwise reported to have developmental delays, and to have been engaging in minor self-harming.

35Queensland hospital records indicate that you had been diagnosed with Borderline Personality Disorder and Post-Traumatic Disorder, but Dr Zimmerman noted that the overwhelming consensus from hospital notes spanning several years shows you to be suffering from a Borderline Personality Disorder.  You have told the psychiatric in-patient unit at Dame Phyllis Frost Centre that you have also previously had a diagnosis of Asperger's, as well as borderline personality, but it is not clear whether you have been formally assessed on the autism spectrum. 

36What Dr Zimmerman also found on examination of clinical notes, being from both Caboolture and Rockhampton hospitals, was that you had engaged poorly with assessing psychiatric staff over the years, usually being quick to state that you felt well and did not require follow-up.  You had, however, more than 80 hospital contacts between 2012 and 2014, including a number of in-patient admissions, some involuntary, and being treated with both antipsychotics and antidepressants on occasions. 

37I am told that you completed Year 12 at school despite huge behavioural problems interacting with other students, and being bullied.  My impression is that you are intelligent, if misguided about when or how to apply that intelligence.  You have shown through completion of school, as I have said, and through completion of some courses that you have undertaken whilst in custody, that you are well capable of applying yourself to studies if you choose to pursue them. 

38I am told that you left your father's home at about age 17 and moved around Queensland, homeless for some time, until you formed a relationship in which you were happy and felt protected, but that tragically ended with the death of your partner.  This sent you into a spiral of further unhappiness, paranoid thoughts and feelings of abandonment and hopelessness.  You attempted self-harm on a number of occasions, as is confirmed through the hospital records from Queensland.

39You have some prior criminal history in Queensland, but none for arson.  Your prior offences in December 2012, April and August 2013 involved thefts and intrusion into homes or personal space of your victims.  Of concern is that on one date you were involved in confrontations holding a stolen serrated knife as a threat to people you confronted.  It seems that on arrest you were considered to be suffering from mental health issues and were taken for assessment.  Your sentences in Queensland included a suspended sentence, but otherwise you had not served any extended period in prison until remanded on these arson charges. 

40You apparently came to Victoria in 2014, at least in part to escape from the reaches of your father or his wife, although there is mention in a report by
Ms Warren that you thought you had seen your father in Melbourne.  You lived homeless for some time, and as I have said, by March 2015, were living in housing provided by the Salvation Army.  When initially in Dame Phyllis Frost Centre on remand last March, you were referred to the psychiatric in-patient unit in the prison due to your long psychiatric history in Queensland, your history of self-harm, and conflict in the unit related to your personality. You were not accepted into group therapy sessions for those with personality disorders, and that has been explained by the psychiatric reports I have read as consistent with your interaction being better in individual counselling, and being unsuited to group therapy sessions. 

41You were returned to the psychiatric unit while in custody from time to time.  There have been occasions where you have complained of hearing voices and have seemed paranoid and hyper vigilant, but you have discontinued medication that was prescribed. 

42On 25 October last year you stabbed yourself in your chest with your Epipen in an act of self-harm, and over the next month swallowed cleaning detergent, and again stabbed yourself.  You have reported anger, guilt, depression, difficulty sleeping, and not eating, to a psychologist, and told her that you were being bullied in the prison because you did not fit with the other women.  You told Dr Clayer that you did not deserve to get out of prison and “they” could keep you locked up forever, however you also spoke to her about obtaining work when released to pay for the damage you have caused.  You have also said you want to leave Victoria when released, as housing costs in Victoria are too expensive.  I am told that you now recognise that on your release from prison, it will be likely that you will be required to stay in Victoria if you are undergoing any type of supervised order. Supervision is likely to assist you on your release.

43Dr Zimmerman has concluded that there is a lack of evidence of a primary psychotic disorder or major mood disorder underlying your behaviour.  She notes that there is no evidence of any significant substance abuse throughout your life.  She does not find evidence that you have an enduring fascination with fire.  Her opinion is that by mid-adolescence, you were showing clear signs of a severe borderline personality disorder.  In oral evidence given last Friday, she said there were also signs of post-trauma symptoms, and a severe borderline personality disorder, which she said is similar to complex post-trauma syndrome, in which fleeting paranoid, and even brief psychotic phenomena can be seen at times of crisis.  However, she does not consider that you fall within any of what are called the "Axis IV mental illness disorders" set out in DSM-5, the formal diagnostic tool for psychiatric conditions.  She said in her oral evidence that what she calls post-trauma symptoms do not, in your case, qualify for a diagnosis of Post-Traumatic Stress Disorder.  Nevertheless, she said that the severity of your borderline personality disorder, and its symptoms at times, are such that on a clinical basis she would approach treatment of you for a mental health illness, notwithstanding the differentiation in DSM-5 between personality disorders and mental illness conditions. 

44Dr Clayer, who assessed you for a Forensicare report requested by the court, unfortunately did not assess you in person, but by video link, despite my conveying the specific request that a second session be undertaken face-to-face by a visit to the prison where you had been for the last seven months. 
Dr Clayer notes your reluctance to answer many of her questions, or to be forthcoming to her with information, and also the difficulty in quality of the video link over which she communicated with you on both occasions.  She relied heavily on the summary of the background material which had been obtained and set out in Dr Zimmerman's second report.  Dr Clayer noted that you appear to have a history suggestive of a severe borderline personality disorder with antisocial personality traits.  She considered that you had an abusive early childhood development, involving neglect and emotional and physical abuse, that you demonstrated some symptoms of a conduct disorder such as aggression towards peers or animals, but this could have been acting-out behaviour a learnt behaviour from protracted physical abuse that you experienced from your parents. 

45She considers that you have been traumatised by your childhood experiences, and have manifested your distress with frequent antisocial episodes, recurrent deliberate self-harm and anger directed at yourself and others.  She was not prepared to diagnose a pervasive development disorder.  She noted that hospital documents reported autism or Asperger's based on poor eye contact and difficulty relating to people. 

46Dr Clayer found you completely closed off to assessing your inner feelings and thoughts surrounding the subject offences.  Without knowing your feelings towards setting the fires, or their aftermath, or your motivation for setting them, she could not diagnose pyromania.  She did note that it is a reasonably uncommon disorder, and I take that by implication to be that she felt it unlikely. In any event there is nothing on which I could reach a conclusion that you have pyromania.

47Based on your personality structure and historical risk factors, Dr Clayer considered that there is a chronic risk of you self-harming, and acting impulsively and aggressively.  She too found no evidence of a psychotic disorder or major mood disorder.  She considered imprisonment is likely to impact more heavily on you in view of your borderline personality disorder and history of trauma, and the confined punitive setting could reactivate memories of trauma and lead to hyper arousal, with a subsequent increase in deliberate self-harm.

48Dr Clayer made some recommendations for your future wellbeing, differentiating what would be suitable if you remained in custody from whether you were released from custody.  Those recommendations were supported by Dr Zimmerman, and are set out in detail in Dr Clayer's report and hopefully will be useful to those supervising you at Dame Phyllis Frost Centre, to try to coordinate some programs and some specialised services to assist you.

49For completeness, I note that there was a psychological assessment of you performed last May by psychologist Elizabeth Warren, who saw you in preparation for a bail application.  This assessment occurred after the first two fires, but of course before the further fire.  During that assessment, you repeatedly reverted to the topic of your father, and Ms Warren concluded that you had not resolved your deep emotional dilemmas in relation to him.  She diagnosed a psychotic breakdown at the time of the first two fires, and was of the opinion that the actual fire lighting can be interpreted as a cleansing or misdirected wish to hurt your father, which had not been something you had consciously acknowledged, but was still present when you were in a psychotic state and not self-censoring your thoughts. You were said at the time to be open to all therapeutic engagement, but resistant to antidepressant or antipsychotic medication because of the effects on you of trials of those in the past. 

50While on its face there are aspects of Ms Warren's report that might support submissions that invoke what lawyers call the first four limbs of “Verdins principles", your subsequent offending, and the subsequent psychiatric reports, which do not support any findings of a psychotic condition, led your counsel to not press the submission about those aspects of Verdins’ case.  Further, the prosecution's submission is that on the authority of the Court of Appeal case of O'Neil, the fact that both Dr Zimmerman and Dr Clayer diagnose a borderline personality disorder, and not a mental illness, means that the first to fourth Verdins principles cannot be invoked, or the one to four cannot be invoked.

51In my view, Doctor Zimmerman's evidence last Friday highlights that that strict delineation, that is, between personality disorder as compared with mental illness, does not always easily apply in a clinical sense, notwithstanding the criteria in DSM-5.  Doctor Zimmerman said that while her diagnosis of your condition falls under Axis 2, and not Axis 4 of DSM-5, based on strict diagnostic criteria, at a clinical level she would be treating you as suffering severe enough symptoms, as she described them overlapping with post-trauma symptoms, to require treatment in the same way as for a diagnosed illness such as post-traumatic stress disorder. 

52I also note that at the outset of Verdins’ case itself, the Court of Appeal stated that "The sentencing court should not have to concern itself with how a particular condition is to be classified.  Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion, and diagnoses in relation to the offender.  It may be that no specific condition can be identified.  What matters is what the evidence shows about the nature, extent, and effect of the mental impairment experienced by the offender at the relevant time”.

53O'Neill's[1] case, and indeed, a number of other cases even before it, have pointed to the need to look closely at what evidence there is of a mental illness, and the effect of that condition on the offending behaviour.  In my view, whilst acknowledging that the diagnoses of both Dr Zimmerman and Dr Clayer are confined to a borderline personality disorder, it is clear from the evidence that your thought processes have at times been impacted by severe symptoms of your borderline personality disorder.  However, the extent to which that has impacted on your offending is very difficult to determine, at least in part because of your resistance to talking with the psychiatrists who have assessed you about your thoughts and motivation at the time of your offending.  In these circumstances, I have not felt it possible to regard your moral culpability for the offending as significantly reduced, but I do consider that there should be some moderation of the application of general deterrence, as you are so unusually affected by your personality disorder, and traumatic background that you are not as suitable a vehicle for general deterrence as the average person without your symptoms who commits offences of this type. 

[1]DPP v O’Neill [2015] VSCA 325

54I am satisfied and take into account in mitigation that your personality disorder has already, and will likely continue, to have the effect of making your experience of imprisonment harder than for a person without that disorder.  That is supported by the opinion of Dr Clayer, and by the description of how you have been reacting whilst in prison on remand.  You say that you have been enjoying being on your own and escaping the tensions of interacting with others by working in horticulture in the prison, but it seems that you still have very poor interaction with other prisoners. 

55Further, I note Dr Clayer's view that imprisonment may lead to reactivation of your memories of trauma, and lead to hyper arousal, with a subsequent increase in deliberate self-harm.  She considers that this was the case with you last year. 

56Albeit from a diagnosed personality disorder, in my view some moderation to allow for more difficulty, and even potential harm to yourself, in serving a prison sentence than for someone without your borderline personality disorder and its symptoms.

57I have considered whether a sentence which involves some further imprisonment followed by a Community Corrections Order would be suitable to achieve sentencing purposes in your case.  It was pointed out to me that because your offences were of arson, the usual upper limit of imprisonment of a total two years, if it is to be followed by CCO, does not apply.  However, given your reluctance to engage in assessments, notwithstanding intermittently expressing a willingness to engage in them, and given the complexity of your background, I do not consider that you are likely to perform well under a CCO. Nor do I accept that Community Corrections officers have the specialised experience necessary to work constructively with you, as would the services recommended by Dr Clayer and Dr Zimmerman, such as the acronyms MACNE or SPECTRUM, or indeed, CIP.

58Under s.6B(2) of the Sentencing Act, a serious arson offender means an offender other than a young offender who has been convicted of an arson offence for which she or he has been sentenced to a term of imprisonment or youth detention. A young offender is a person who at the time of being sentenced is under the age of 21, so although you were under 21 at the time of committing the first two arson offences, you are 21 now when you are being sentenced. All of this means that except for Charge 1, but because I will be imposing a term of imprisonment on Charge 1, for each of Charges 2 to 7 you will fall to be sentenced as a serious arson offender. That means that under s.6D, if I consider that a term of imprisonment is justified on each of those latter charges, in determining the length of that sentence I must regard the protection of the community from you as the paramount purpose for which the sentence is imposed. It also means that sentences will be served cumulatively, except to the extent that I direct otherwise. The prosecution has not submitted, and I do not consider that there is a need for a sentence longer than is proportionate to the gravity of each of those offences.

59As I have already said, I regard the last four offences, and particularly two of them, as much less serious instances of arson than the first three charges against you.  They are in fact, of such relatively low seriousness, that I would not have separately imposed a term of imprisonment on them had they occurred alone. However I am going to impose nominal terms of imprisonment in the circumstances, rather than the complication of different types of penalties, in particular, heavy fines, and taking into account that they were not isolated incidents.

60I have also decided that I should direct a considerable amount concurrency between charges which otherwise fall to be served cumulatively.  The concurrency is to take into account that the first two offences occurred within three days of each other, although each was a distinct and separate decision and act by you of considerable seriousness, but they were apparently driven by similar thought processes over that period, and whatever that meant to your motivation for those offences.

61Charge 3 stands differently, in my view, as it occurred after you had had the salutary experience of being remanded in custody, and had been engaged under the CISP program in an attempt to address your problems.  I do regard protection of the public as having a real application to the question of the length of your sentence on Charge 3, due to your having been remanded and being on bail, that being an aggravating factor, and as the nature of the offence of lighting a fire in a boarding house, and without any warning to any of the other residents or staff, clearly in my view calls for consideration of protection of the public.

62I have also considered whether a term of imprisonment with a known completion date would be appropriate for you in your circumstances, to avoid you having to interact well enough to satisfy the Parole Board that you should be granted parole.  However, I am ultimately of the view that you will need assistance and supervision for your own, and the public's safety, for you to transition back into living in the community.  This will also require the need for suitable housing to be arranged for you in advance, and for you to be booked into appropriate programs to assist you to address your underlying problems or undergo further treatment, such as the counselling you have been receiving most recently whilst in prison.

63In my view, there needs to be a level of supervision to deal with all of that so as to improve your chances of establishing a stable life for yourself in the future.  I have therefore decided that I should impose a term of imprisonment with a minimum term before you will be eligible for parole.  I have allowed a considerable period for which you may be on parole, to attempt to allow for you to be assisted and supervised when released from prison. 

64Would you stand up now, please.

65Ashleigh Narelle Chapman, on each of the following charges, you are convicted and sentenced as follows:  Charge 1 of arson, 21 months' imprisonment; on Charge 2 of arson, 18 months' imprisonment; on Charge 3 of arson, two years' imprisonment; on each of Charges 4 and 7, imprisonment for one day; and on each of Charges 5 and 6, imprisonment for one month.

66I direct that eight months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 3.  I direct that all but four months of the sentence on Charge 2, and all of the sentences on each of Charges 3 to 7 inclusive, be served concurrently with each other, resulting in a total effective sentence of imprisonment for three years.  I fix a minimum term before you could be eligible for parole of two years' imprisonment.  I declare pre-sentence detention of
309 days as reckoned served, that gets reckoned off the top of the three-year sentence, and off the non-parole period.  I direct that that be recorded in court records, and it will be deducted administratively.

67On the related summary charge of possession of a controlled weapon, I impose a term of imprisonment of one week. For clarity, I state that that sentence will be served concurrently with all of the other sentences imposed today, and that will be the effect of the operation of s.16(1) of the Sentencing Act, rather than a specific direction by me. 

68Pursuant to s.6F of the Sentencing Act, I declare that you have been sentenced on Charges 2, 3, 4, 5, 6 and 7 as a serious offender and direct that be entered in the records of the court in respect of each of those offences. 

69I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty to these charges and had been found guilty of them after a trial, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three and a half years.

70Now, I have been asked to make a disposal order which is not opposed on your behalf, it having had one item omitted, and I will sign that order.

71There has also been application made for compensation orders in respect of the damage caused by you to two of the properties to which you set fire.  One of those orders is to pay to Orion Holdings Australia Pty Ltd, which I take to be the owner of the boarding house where you lit the third fire, compensation in the sum of $19,567.28.  The other application is for compensation in the sum of $226,661 to Joe Leder, this being on behalf, I gather, of the Salvation Army. 

72In relation to the application in respect of the boarding house repairs, I note that that is a significant sum that is sought from you, of just over $19,500.  The circumstances of that offence seem to me to have been such that you very deliberately planned to take yourself away but set fire to that property, and I have been told, although I have no direct evidence of it, nor of the quantification of this amount of money, that the company running the boarding house was put into quite severe financial stress because it had to vacate its residents and close down the property.  It has been submitted on your behalf by Mr Gibson that I should, in my discretion, consider not making either this or the other compensation order, because you have no foreseeable way of making those payments, and that when you come out of prison, your rehabilitation is going to be best served if you do not have heavy financial obligations, or the slur on your credit record when it comes to looking for accommodation or jobs, of having huge debts or a bankruptcy, if that is how you chose to approach any indebtedness from these matters.

73I have decided that I should make the compensation order that is sought payable to Orion Holdings in the sum of $19,567.28.  How long it takes you to make that payment, or indeed if you choose to apply for bankruptcy instead of paying it is up to you, but I do note, to your credit, that you had discussed with Dr Clayer that you did see yourself as hoping to be able to work to repay some of the damage you caused. So I am going to make that order. 

74In relation to the order sought in favour of Joe Leder on behalf of the Salvation Army, I have a great deal more hesitation.  You clearly lit two fires in properties owned and run by the Salvation Army, where particularly in the first you caused very significant and extensive damage.  That organisation was providing accommodation for persons such as you in need of supported or emergency housing.  However, I am troubled by the fact that I have had three successive and ever-growing quotations as to the quantification of that damage, and the sheer amount of it is so obviously outside any realistic prospect that you would ever pay it, that it invites you to declare yourself bankrupt rather than set about making some recompense for the damage you caused.  In my discretion, I am not going to make that compensation order for those reasons.  It does not mean that that applicant is not due money for compensation in a general sense, and it does not stop them from pursuing it against you personally by individual proceedings, not that I am anxious to have anyone run up the costs of individual civil proceedings.  If at any stage in your future life, if you have got it back on a steady keel, and are working, you may choose to voluntarily make compensation payments to the Salvation Army. However but in my discretion, I am not going to make that compensation order sought today.

75All right, now, take a seat Ms Chapman, while I just check with counsel that the structure of the cumulation and concurrency achieves what I have said was my aim.

76MR MANNING:  Yes, I believe so, Your Honour.

77HER HONOUR:  All right, Mr Gibson, have you had a chance to check it?

78MR GIBSON:  I have, and I think I agree as well, Your Honour.

79HER HONOUR:  Yes, I ‑ ‑ ‑

80MR GIBSON:  It is complicated.

81HER HONOUR:  ‑ ‑ ‑ hope it works.

82MR GIBSON:  Gymnastic exercise.

83HER HONOUR:  And I state on record what my intention is so that if it is found it does not achieve, it, I am willing to amend it, because I want to make clear what was intended.  Overall, what is intended is that there be eight months' cumulation from Charge 1, and four months' cumulation from Charge 2 onto Charge 3, which I classified is the most serious in all the circumstances of the offences, and that everything else be concurrent.  All right.  Do you want to approach - while the orders are being prepared, would you like to approach your client to talk ‑ ‑ ‑

84MR GIBSON:  I will be seeing her afterwards Your Honour, so I can - thank you, though.

85HER HONOUR:  All right.  I'm going to ask both Mr Manning and Mr Gibson.  It is this issue of those cumulative effect that has me troubled.  As I have currently directed it, as I have said, I direct that eight months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 3.  And that is really stand alone because it is not as a serious offender.  Further, all but four months of the sentence on Charge 2, and the sentences on each of Charges 3, 4, 5, 6 and 7 be served concurrently with each other - do you believe I should also add "and with the sentence on Charge 1"?

86MR GIBSON:  Charge 1 and 3?

87HER HONOUR:  No, I have included three in this.

88MR GIBSON:  I beg your pardon, yes.

89HER HONOUR:  I have said "all but four months of Charge 2" and - because that is the bit that I want to be cumulative, and the sentences on each of Charges 3, 4, 5, 6 and 7, be served concurrently with each other.  I am now, on second thoughts, thinking I also have to say "concurrently with each other and with the sentence on Charge 1", otherwise they might, as a group, cumulate on Charge 1.

90MR GIBSON:  Before adding on to Charge ‑ ‑ ‑

91HER HONOUR:  Before the addition of the eight months.

92MR MANNING:  Yes I understand what Your Honour is saying, I think that would be prudent to include that as well.

93MR GIBSON:  I agree with that, Your Honour.

94HER HONOUR:  Yes.  I knew all along this one was - well, it is not - when I said "fraught", I spent some time trying to work out how to construct it.  The system still has Ms Chapman's previous address, so it has got to be changed.  All right, those orders have been signed.  If they are rejected by central records, I will amend them.  The parties will be let know, I am hoping that that last bit I added does not cancel out the cumulation that I directed, but I ‑ ‑ ‑

95MR MANNING:  I do not think it would, because Your Honour said "but for the four months" in relation to the charge.

96HER HONOUR:  Yes, no I mean the cumulation from Charge 1.

97MR MANNING:  Yes, the eight months, yes.

98HER HONOUR:  That I specifically directed.  But I do not think it does, but there is no easy - a lot of these additional amending sections have not - do not sit neatly under structure of the sentencing arrangements, but that is the challenge for people in my position. 

99All right, Ms Chapman, as I have said, your total sentence is three years' imprisonment with a non-parole period of two years, and 307 days of that is already reckoned, that is the time you have been ‑ ‑ ‑

100MR MANNING:  309, Your Honour.

101HER HONOUR:  309, I beg your pardon - counts towards that, and you will, however, be in the hands of the Parole Board as to when and on what terms parole is granted to you in due course.  I will adjourn the court - I will ask that Ms Chapman be removed first, Mr Gibson will come downstairs to talk to you.  Could we stand the court down, I have got another matter but - I will stand the court down until 4 o'clock. You are in that matter, I think, Mr Manning.

102MR MANNING:  I am, Your Honour, yes.

103HER HONOUR:  I am sorry, I just - the timing of this running over ‑ ‑ ‑

104MR MANNING:  No, not at all.

105HER HONOUR:  ‑ ‑ ‑ it is going to start late.

‑ ‑ ‑