Director of Public Prosecutions v Charles

[2022] VCC 756

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT Melbourne

CRIMINAL DIVISION

Case No. CR-21-01165

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

LEANNE CHARLES

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JUDGE:	Her Honour Judge Gaynor
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 May 2022
CASE MAY BE CITED AS:	DPP v Charles
MEDIUM NEUTRAL CITATION:	[2022] VCC 756

REASONS FOR SENTENCE

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Catchwords:     

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Fargher
For the Accused

HER HONOUR:

1       Leanne Kimberley Charles, you have pleaded guilty before me to one charge of criminal damage by fire, arson.  The facts underlying this offending are as follows.

2       At the time of this offending you were living as the sole occupant of a unit at
8 Railway Parade, Shepparton.

3       On 9 June 2020 the unit caught fire and was severely damaged but not destroyed.  The unit was a semi-detached, two bedroom, brick veneer, residential building, owned by the Department of Health and Human Services, as it was then called.

4       On 9 June 2020 at about 2.40 pm, a number of Triple 0 calls were made reporting that the unit was on fire.  None of those calls were from you. 
The Shepparton Country Fire Authority, ambulance and police responded and attended, discovering that Unit 3 was completely engulfed by flames.  Ultimately, the fire was extinguished and there was minor smoke damage caused to the next door unit.

5       An eye witness, Michael Tawney, saw you just minutes before the fire outside your premises yelling and walking back inside.  About 10 minutes later there was a loud bang, which caused Mr Tawney's windows to shake and he then saw you crying outside the front of his house and saw that Unit 3 was on fire.

6       Another witness, Cameron Shield, saw smoke coming from the premises at the front.  He approached you.  You appeared distraught and told him it was an accident and that you had kicked a candle over.

7       Another witness, Tyler Rogers, gave a statement in which he said he was outside his residence when he heard male and female voices yelling at each other and about five minutes later heard a very loud bang, at which time smoke started filling his house.

8       Your on/off partner of 17 years, Ronald Roberts, arrived at the scene on foot at about 4.33 pm, by which stage the fire had already been extinguished and you were taken to the Shepparton Police Station.  He said that he had slept at your house the previous night and left in the morning to go to court.  He said your bedroom was immediately on the left when entering the front door and that he slept in the bedroom at the other end of the premises.  He said that both of you had a candle next to your beds but neither was lit when he left the unit in the morning.  He said that you used a fair bit of methylamphetamine and alcohol but had not consumed any whilst he was with you.  He did notice you were upset because you had run out of cigarettes and were crying when he left the unit that morning.  There was no one else in the unit, bar you, at the time.

9       There was a conversation between yourself and First Constable Luke Lugoon at the scene, which was recorded on the body camera, in which you told police the fire had not been lit on purpose but that you had a lit candle on a mattress in the middle of the room.  You said that no one else was inside when the fire started.  Constable Lugoon asked you why the candle was kicked over and you said that it was because it would not go out and you claimed that you had called police.

10     In a record of interview with police you said you had bought a bottle of wine that morning at about 10.00 am, which you drank at a friend's house before leaving there at about 11.30 am.  You then bought cigarettes and another bottle of wine, which you said you dropped before reaching the unit.

11     You did not explain how the fire had started but said you had tried to put it out and that the fire was in the bedroom.  You said that you were angry with yourself and that you no longer wished to be with Mr Roberts.  You also said that you knew you were not allowed to treat your house like that and that you were 'pissed off' with yourself.

12     When asked if there was anything else you wanted to talk about you said, ‘no’, but made the enquiry, 'Do they have any like arsonists anonymous or anything?'.  The interviewer asked you why you had said that and you said, 'Because I just think it's a real problem, like, I think about it if I do have any recollection of it.  I mean this is something I don't want to talk about, people that have started fires'.

13     The CFA investigation of the origin of the fire located two distinct areas of origin,  they being in the second bedroom at the bottom end of the single bed and in the lounge room at the location of the single seat recliner.  The form of heat of ignition could not be determined but the cause of the fire was regarded as suspicious.  A further forensic examination by an arson chemist concluded that there seemed to have been two distinct origins of fire in the unit in the same areas as detected by the CFA.

14     It was considered that the presence of any significant amount of flammable material was considered unlikely.  There was no indication that the fire was electrical or otherwise accidental and that whilst the source of ignition could not be determined, both fires were probably ignited directly by a match or a cigarette lighter.  It was the opinion of that chemist that the cause of both distinct fires was the ignition of available combustible items on or beside the respective furnishings.

15     The maximum penalty for arson is five years imprisonment.

16     This matter proceeded by way of a committal proceeding, which took place on 2 June 2021, where witnesses were called, cross-examined and you were committed to trial, at which time you pleaded not guilty.

17     Eventually, there was a sentencing indication before
Judge Chettle in October 2021 and at a further directions hearing the court was advised that you would plead guilty to arson and the matter was heard in the Koori Court, ultimately, before me.

18     I now turn to your personal circumstances.  You are now 43 years of age.  You are an Aboriginal woman, who has endured a very difficult and traumatic history.  You have a significant history of substance abuse, including alcohol, cannabis and ice.  You have also taken Valium and Seroquel.  You also have a significant history of mental health problems, which include depression, anxiety and psychosis, for which you have been prescribed medication.  You have been diagnosed as having a borderline personality disorder in the context of a significant history of trauma.

19     You grew up in Shepparton, where you went to several primary schools as your family often moved home.  You completed Grade 6 but never went back after that.  Your reading and writing is poor but you are literate.  You are the eldest of nine children, which include full and half siblings.  Your family, whilst mainly living in Shepparton, also moved you to other areas of regional Victoria and Queensland, whilst you were growing up.

20     You have had a number of difficulties in your life.  You have been in a long term relationship with Mr Roberts.  You have three children with him, as well as two sons from a previous relationship.  Along the way, all your children have been taken out of your care by the Department of Human Services.

21     You described your home life to psychologist, Carla Lechner, whose report dated September 6, 2021, was tendered on the plea, saying that you had a happy child life.  However, Ms Lechner stated that she suspected you had a history of exposure to violence and abuse but you were not willing to discuss this.  You said your father, a truck driver, was not home and you said that your parents, whilst kind, were loose disciplinarians.  Your father died when you were about 12, although the circumstances are not known.  She asked you about whether you had a history of sexual abuse and you said that you did not want to talk about it.

22     Your first child was born when you were 16.  You then developed a heroin addiction.  You lost a partner in a high speed car chase and then you lost care of your son to your mother.  It has been quite difficult to track your personal history but as Ms Lechner stated, 'There are few details known about her developmental history.  However, it is likely that she has been subjected to abuse and neglect in her formative years.  This, undermining her subsequent vocational, social and emotional development'.

23     It appears you have never been able to work.  You have given birth to children since the age of 16 years and tragically, have lost custody of all of them.  There has been considerable stress between you and your mother, who appears to have taken care of all of your children at times.  Ms Lechner - - -

24     MS CHARLES:  I have been able to work, Your Honour.  Have I got a minute to speak after this?

25     HER HONOUR:  Yes, of course you have.  Yes.

26     MS CHARLES:  I'm currently unemployed for the last 20 years.  That's all.

27     HER HONOUR:  All right then.

28     MS CHARLES:  That's all.  I can work.

29     HER HONOUR:  I apologise and I thank you for that.

30     MS CHARLES:  Can I add that?  Yes.

31     HER HONOUR:  What sort of work did you do, Ms Charles?

32     MS CHARLES:  No.  I'm just currently unemployed for the last 20 years, just working with the courts.

33     HER HONOUR:  Yes.  So, I understand that there has been some employment.  But as you said, you have not been in employment for the last 20 years and you have been in receipt of a disability support pension for the last 14 years.

34     It would seem that from what I can tell, that you have been in trouble with a wide range of substances since your mid to late teens.  You have been a heroin user, as I had said.  You have used Valium.  You have used Seroquel.  You have used cannabis and at times you have been addicted to methylamphetamine.

35     The psychometric testing implemented by Ms Lechner revealed that - - -

36     MS CHARLES:  I've always been a cannabis smoker but um, I've been around addicted people to, what is it, methylamphetamine.  Yeah.

37     HER HONOUR:  Yes.  No.  I understand that.

38     MS CHARLES:  That was the abuse in my childhood.  Yeah.

39     HER HONOUR:  Yes.  Thank you.  Alcohol - - -

40     MS CHARLES:  I've never ever been a methylamphetamine user.

41     HER HONOUR:  I am sorry.  I apologise because in her report it seems that you told Ms Lechner that you said you had not used heavily in 2021.  You had last used in January of that year.  You told her, 'I used to look for it every day'.  All right.

42     MS CHARLES:  Yeah.

43     HER HONOUR:  It is clear that you no longer use heroin but I certainly accept that you have had continuing problems with alcohol  - - -

44     MS CHARLES:  Drug use.

45     HER HONOUR:  Yes and drug use.  As I have said, psychometric testing, which was administered showed severe psychological distress, depression and sadness.  You also reported sleep and appetite difficulties.

46     I do accept that you have had a long and difficult history.  The loss of the care of your children alone would be enough to ensure that that was the case.  It appears you have had little in the way of support and I accept that your long relationship with Mr Roberts was very much an abusive one, as far as you were concerned.

47     As a result of this offending you were at some stage homeless.  But as is often the case when offending escalates the response to that person afterwards can increase in intensity, such that a proper structure is set up and that appears to have been the case with you.

48     I should note that there was a neurological assessment of you.  The report of neuropsychologist, Martin Jackson, indicated that you were reportedly intoxicated on alcohol and Valium at the time of the offending which he says, 'Would have increased the likelihood of her acting impulsively and emotionally to a stressful situation'.  My understanding is that a large part of the stressful situation lay in the continuing abuse that you were receiving from your partner, who would come and go.

49     It was noted that you clearly presented with emotional dis-control, due to borderline personality disorder, which often develops in people who have been subjected to extended trauma.  He stated - - -

50     MS CHARLES:  And a boyfriend that just comes and goes - - -

51     HER HONOUR:  Ms Charles, Ms Charles.  Thank you.  That's been helpful but I actually need you not to talk anymore, if that is all right, please.  Because the only reason we are here is for me to continue my sentence remarks and as you know, I am going to place you on a Community Corrections Order.

52     MS CHARLES:  Beautiful.

53     HER HONOUR:  All right but I am required when I am giving sentence to set out the circumstances of your life, which is why I am doing this.  So, if you would be kind enough just to let me move on with that.  All right.  Thanks,
Ms Charles, good on you.

54     Mr Jackson stated, 'From Ms Charles' report the main distinguishing features between her life at the time of the offending and her current situation are primarily lack of substance use.  Your doctor has refused to prescribe you any more Valium.  This, he said, has improved your psychological state.  You have also attended to your alcohol use and which you had not used for four months at the time that you saw Mr Jackson in April of this year.  He said that you reported being a lot happier in the past four to five months and concluded, 'As such, she appears to be in a very different psychological state than she was at the time of offending.  Again, further opinion could be gained from a forensic or clinical psychologist.

55     It was Mr Jackson's view that you did not have any neuropsychological condition that would impact you in regards to any risk of re-offending.  Nor do you have a condition associated with an increased risk of offending in the future.  He did say there was a risk of re-offending that was based on your personality and mental health issues and whether or not you returned to substance use.

56     I am making reference to those parts of that report because as I have said, your situation appears to have improved markedly since the time of this offending.  You are now in new housing commission housing.  You have gained the support of the NDIS and I had a letter from Keara Justin, the Aboriginal Coordinator for Supports with Gallawah Supports and Services.

57     You were referred to her.  She said that you engaged very well with Katrina, their social worker, and that Katrina was seeing you about three or four times a week.  In October of last year you received an NDIS plan.  You have a support co-ordinator and you have continued to enjoy support under the NDIS plan, which also includes eight hours of support a day.

58     That means for start that you are now in stable accommodation and because of the NDIS plan, instead of being in a lonely and isolated situation, have good support and company every day.  This is in complete contrast to the position you were in at the time of this offending where you were alone, caught in an abusive relationship and yourself, abusing alcohol and prescription drugs.

59     I received also a letter from the Thrive Wellness and Consulting Organisation in Echuca, which confirmed that you started therapy with the Thrive Wellness and Consulting on 3 December last year, and that has also continued.

60     I should have reference to your criminal record.  Unsurprisingly, given the fact that you have been in the grip of substance abuse difficulties since your mid to late teens you have a long history of offending, going back to 1999, where you have been dealt with by various Magistrates' Courts for offending, such as recklessly causing injury, theft, hindering police, drunk in a public place, burglary, going equipped to steal, possessing a dangerous article, robbery, attempted theft, failure to answer bail, theft of motor vehicle, various driving offences, such as unlicensed driving, assault police, and a charge back in 2011 of recklessly causing serious injury for which your received six months imprisonment.  There has been shoplifting.  There have been intervention orders taken out against you, which you have breached.  There are charges of possessing and using cannabis.  A particularly prevalent offence in your history is being drunk in a public place.  Again, it goes on and on and it is always in the Magistrates' Court.  Just a large number of street offences, minor thefts, minor assaults.  You have been placed on Community Corrections Orders and which have not worked.  You have also been placed in gaol on a number of occasions.

61     That history has continued on up until the last appearance on 8 March 2022, where you were dealt with for shoplifting, then in January 2022, for dishonestly receiving stolen goods, possession of prescription drugs.  In December 2021, you were dealt with for contravening a family violence order and that means that some of this offending did continue.  Although the dates of it pre-date you being placed on the NDIS plan and receiving appropriate support. There were a number of matters resulting in low level charges being laid and heard by the Magistrates' Court, which have now been dealt with.

62     It was the submission of the Office of Public Prosecutions that I should deal with you by way of a term of imprisonment.  I understand why that submission was made but my concern is that your situation has improved so much.  You have stablised so much, particularly through the auspices of the NDIS that I am reluctant to interrupt this.  I do not want to interrupt your housing, which is difficult to get and I do not want to interrupt the support that you are receiving.

63     It is clear to me that from a very early age you have been subjected to all sorts of emotional physical and quite possibly sexual abuse that you are reluctant to talk about.  You started having children as a teenager.  They have all been removed from you and this is a cause of great grief to you I understand.  You lost your father when you were 12 and a partner in your mid-teens, who you were close to.  You have been, as I have said, in the grip of drugs and alcohol for almost two decades.

64     Given that the appropriate supports are in place and given that you are no longer abusing drugs in the way that you were, which in my view from the materials underlies your offending, I regard your prospects of rehabilitation of having very much improved.

65     As I have said, I regard the structure that is now being provided to you through the NDIS as incredibly important and from the reports I have received you are engaging well.

66     It is my view that placing you in custody could prove an enormous setback to the progress that you have made and to the structures and support that you now enjoy that are so important to your continuing in the community in the sober and non-offending manner that you are clearly now undertaking.

67     I have had you assessed for a Community Corrections Order and you have been found suitable for this.  In my view, a Community Corrections Order reflects both the need for some punishment for your actions as well as understanding the vulnerabilities and difficulties that you continue to endure that will be attended to under this order.  In other words, it takes care of all the issues that arise in your case.

68     It was noted that when you were speaking to Havolvi Pantharki, who was the assessing Community Corrections Officer, that you showed insight and remorse.  You stated that you had told the writer about binge drinking since the age of 12, taking illicit drugs since age 14, injecting methylamphetamine from the age of 25, using unprescribed Valium in the community and you also said that you were drunk and had used Valium before lighting the fire in this case.

69     I also received a report from the Mental Health Advice and Response Service of the County Court.  She noted that looking through the Victorian Public Mental Health database and Forensicare databases it was noted that you have received episodes of mental health review and treatment from
Goulburn Mental Health Service.  Since 1999 you have been admitted to the Goulburn Valley Hospital psychiatric units on three occasions.  The last time you were admitted to the Forensicare managed acute women's psychiatric unit between January and April 2017.

70     You have received diagnoses including acute stress reaction, borderline personality disorder, paranoid personality disorder, suicidal ideation, drug use and mental and behavioural disorder due to substance abuse.  You presented to that assessor as alert, calm, composed and engaged, which is a complete contrast to how you presented at the time that this offending occurred.

71     The conclusion was, 'Ms Leanne Charles has a documented history of borderline personality disorder, trauma, polysubstance misuse, mood and emotional dysregulation.  Ms Charles presented today as relatively stable in her mental state, sober, adherent with prescribed medication and reporting motivation to work with her NDIS support team'.

72     It was noted that you would benefit from ongoing counselling, with a focus on learning practical skills to self-mange your emotions and thoughts and to self soothe.

73     So, as I have said, in all the circumstances it is my view that a
Community Corrections Order correctly responds to the issues that I must attend to in the sentencing exercise before me.

74     I also take into account that you have pleaded guilty, although not at the earliest stage.  You are therefore entitled to the utilitarian benefit attached to this in recognition of the time and expense this has saved the community.  And as I have said, I regard your rehabilitative prospects as markedly improved, given the improvement, the very significant improvement that has occurred in your personal circumstances.

75     Now, before I put you on a Community Corrections Order, Ms Charles, I have to read out the conditions that attach to this order and then I have to ask if you consent to be placed on the order.

76     The core conditions of the order are that you must report to the
Community Corrections Office within two working days of the making of this order, that is, by Wednesday of this week.  Whilst you are on this order, which will last for 18 months, you must not commit any offence punishable by imprisonment.  And it is important that you understand, Ms Charles, that does not mean you have to go to court and go be sent to gaol.  It means that if you commit offence for which you could receive a gaol sentence, such as a very minor shop lifting or shoplifting a very small object, that will breach the order and I will bring you back and re-sentence you.

77     You must report any change of address or employment to Corrections within
48 hours of the making of that change.  You must report to and receive visits from the Corrections Office.  You must not attend the Community Corrections Office under the influence of drugs or alcohol.  You may not leave Victoria without the permission of the Community Corrections Office.  You must obey all lawful directions of the Community Corrections Office.

78     I am also going to order that you undergo treatment and rehabilitation for drug and alcohol difficulties.  You are to receive treatment and rehabilitation for mental health difficulties and you are to undergo programs, which are designed to reduced re-offending.  I am going to order supervision and judicial monitoring.  I will do the first judicial monitoring in three months' time.

79     What that means is, Ms Charles, is that in three months' time you will come back in front of me and I will get a report from Corrections about how you are travelling on the order.  So, could we have a date, please, for three months' time and you do not have to come to Melbourne.  You just Zoom yourself in.  Usually it is done through the Corrections.

80     MS CHARLES:  I will be there.

81     HER HONOUR:  All right.

82     MS CHARLES:  Yes.

83     HER HONOUR:  What date do we have, please?  Thank you.

84     MS FARGHER:  Your Honour, perhaps while we are waiting for a date, maybe for Ms Charles' benefit I can see in the report that she can report to Community Corrections via telephone.  I just note that she has tested positive for COVID and that might be something that - - -

85     HER HONOUR:  Yes.  Sorry, I also note that you have tested positive for COVID.  So, you will need to contact them by telephone by Wednesday.  Thank you for that.  I appreciate that.  How are we going with the date,
Adele?

86     ASSOCIATE:  Yes, Your Honour.  We could do 24 August at 9.30.

87     HER HONOUR:  All right.  The first judicial monitoring will be 24 August at 9.30.  Because I have dealt with this matter by way of a Community Corrections Office, I am not required to give a s6AAA declaration.

88     MS FARGHER:  As Your Honour pleases.

89     HER HONOUR:  Thank you.  Now, the only other issue is the compensation order that has been sought.  Does Ms Charles counsel wish to say anything about that?

90     MS FARGHER:  Your Honour might remember on the first occasion when this matter was heard, Your Honour indicated you wouldn't be making that order.  So, I believe it has already been dealt with.

91     HER HONOUR:  Yes.  You are right.  No.  It is pointless making this order because there is just no way that Ms Charles would be able to repay this.  So, I am not going to make it.  It is just a complete waste of time.  All right.

92     MS FARGHER:  Yes, Your Honour.

93     HER HONOUR:  I appreciate that that is sometimes the case but it is simply not possible.  All right.  Thank you very much.  I thank counsel for their assistance in this matter.  Good luck, Ms Charles.

94     MS CHARLES:  Thank you, Your Honour.

95     HER HONOUR:  I am very pleased to see that your life is so much better than it was and I hope in three months' time that that is still the case.  All right.  Now, I am going to leave the hearing but I will get my associates to stay on the line to let you know how the order will be signed.  All right.  Thank you very much.

96     MS CHARLES:  Thank you.

97     HER HONOUR:  Thank you.

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