Director of Public Prosecutions v Cheong
[2022] VCC 2131
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00843
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRENCE CHEONG |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2022 | |
DATE OF SENTENCE: | 16 November 2022 | |
CASE MAY BE CITED AS: | DPP v Cheong | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2131 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Arson – Commit indictable offence whilst on bail – Relevant but limited criminal history – Verdins principles – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 197; Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18, 44.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Community Correction Order for a period of 2 years, with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Raimondo | Office of Public Prosecutions |
| For the Accused | Mr J McGarvie | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Terrence Cheong, you have pleaded guilty to one charge of arson, contrary to ss 197(1) and (6) of the Crimes Act 1958 (‘Crimes Act’) , which carries a maximum penalty of 15 years imprisonment (Charge 1).
2You have also pleaded guilty to the related summary offence of commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 3).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were 28 years old at the time of the offending. At the time, you were staying in room 17 at the Burwood East Motel in Blackburn Road, Blackburn East.
6Also at the time of this offending, you were on three bail undertakings including bail for Informant Beasley for an arson related offence on 6 October 2020 and you were due to appear at the Ringwood Magistrates’ Court.
7The victim in this matter is Andre Chong. He is the owner and landlord of premises situated in Ashwood. This property was leased to Jeffrey Cheong, your father.
8You would occasionally stay with your father at the Ashwood address and you had a key to the premises.
9At 2.23pm on 16 January 2021, you attended at the Coles supermarket in Burwood East and purchased four one litre bottles of methylated spirits, a packet of fire starters, a hammer, and a pair of Ansell gloves. You then left the supermarket.
10At 3.12pm on 16 January 2021, you were recorded on CCTV getting off a train at Jordanville Railway Station. This railway station is on Huntingdale Road in Mount Waverley and is located within walking distance of the premises at Ashwood.
11At about 3.30pm, Jeremy Buswell was at his premises when he heard the sound of breaking windows. He went outside but didn’t observe anything. He returned inside his premises and then heard a smoke alarm. He went outside again and saw smoke coming from the building across the road in Electra Avenue Ashwood. He rang emergency services and attended at the building to see if anyone needed assistance. No persons were present. By this stage the fire had engulfed the premises. He returned to his premises. The fire brigade attended and extinguished the fire.
12Arson Squad expert John Kelleher attended at the premises to investigate the cause of the fire. The premises consisted of two bedrooms, lounge room, kitchen, dining room, bathroom, laundry and toilet. He observed that multiple windows throughout the house were broken from the inside out indicating deliberate smashing not caused by the fire. The gas stove was found to have all its knobs turned on in the kitchen. He located the remnants of a hammer on the entrance hallway floor. He also located nearby probably one, possibly two bottles of methylated spirits. An empty bottle of methylated spirits was found in the bathroom. He opined that there were multiple sets of the fire throughout the premises and that bedding in the master bedroom and a towel had been ignited and that possibly methylated spirits had been used as an accelerant. The fire was ignited by a match or a cigarette lighter.
13The empty bottle of methylated spirits located in the bathroom had a serial number which matched one of the bottles you had purchased earlier that day from the Coles Supermarket.
14On 17 January 2021, as the result of information received, the informant DSC Campbell executed a search warrant at your address at room 17 of the Burwood East Motel. You were not present. The police conducted a search and located in the main bedroom three full bottles of methylated spirits.
15The methylated spirits bottles have been examined and two latent prints belonging to you were found on one of these bottles.
16On 18 January 2021, you were arrested and conveyed to the Oakleigh police station for questioning.
17A Record of Interview was conducted in the presence of an Independent Third Person. You remained mute.
18You were charged and remanded in custody.
19The damage to the Ashwood premises has been assessed at $228,858.20.
Nature and gravity of the offending
20Plainly, the lighting of a fire in a residential unit is a dangerous act potentially placing any occupants of the premises or neighbouring premises at risk. The fire you lit also caused significant damage to the premises.
21At the time of the offending you were occasionally living with your father in the unit in Ashwood. As a result of a family violence intervention order imposed in June 2020 where your mother is named as the protected person, you were forced to move from your mother’s house. You reported to consultant forensic psychiatrist Dr Jacqueline Rakov that you missed living with your mother, who would take you to the shops regularly, take you out for dinner every Thursday night and to the city on weekends. Your father did not do these things with you.
22You felt that if you destroyed your father’s home you would be able to return to your mother. In a report prepared by Dr Sobia Khan, Forensicare consultant forensic psychiatrist, you provided a detailed account of how you planned and executed the damage at you father’s house. You said you ‘wanted to tell them how unhappy and angry I was’. You said you ran away from the house ‘so no one would notice me…I was hoping no one would discover what has happened…I did not think police would know it was me..’.
23Given the circumstances in which you planned and executed the fire, is was inevitable that you would be caught. However, while you appreciated the wrongfulness of your conduct, for the reasons outlined in further detail below, your mental health issues are very relevant to your moral culpability.
24Mr McGarvie conceded on your behalf that your offending is ‘unequivocally serious’ and would have been distressing for your father, as well as the owner of the property.
25In all the circumstances I concur with concession of your counsel, that despite your misguided motivations, the offending remains serious and created a dangerous situation in a built up area.
26I also take into account that at the time of the offending you were on three bail undertakings for unrelated matters.
Personal circumstances
27You are currently 30 years of age. You were born in Melbourne to immigrant parents from Malaysia and grew up in the eastern suburbs. You have a brother who is four years your senior, who now lives overseas and works in finance. Your parents separated when you were eight years old. You have a close and supportive relationship with your mother, who resides in Mount Waverley and works as an internet stocks trader. She provided a character reference, tendered on the plea, which speaks to your ‘happy and gentle’ nature as a child, prior to the onset of your mental illness. She also refers to several major life events which caused you great distress in your adolescence and young adulthood, including the loss of the family home in 2008 due to financial hardship, the permanent disabling of a very close childhood friend due to a skiing accident, the death of two close family friends in 2014 in the Malaysia Airlines Flight 17 tragedy, and the passing of your grandmother. Your mother acknowledges in her character reference the assault you perpetrated against her in 2020 leading to the intervention order and notes the remorse you have expressed to her ever since. In spite of this history, you mother continues to be a fundamental pillar of support in your life.
28Your father works as an engineering academic at The University of Melbourne and you describe having a more difficult relationship with him, stemming from his treatment of you during your childhood and adolescence. You enjoyed your primary school years, where you had an integration aide from Grades 3 through 6, but fell behind academically once you entered high school, failing Year 7. Your father, perceiving that you were vulnerable to being alienated and left behind due to your disabilities, subjected you to a regime of tuition outside of school, which created tension in your relationship.
29You deny being bullied in high school but had difficulty establishing friendships. You completed high school and went on to enrol in a double degree in a Bachelor of Science and Computer Science at Monash University but dropped out two years later due to poor academic performance. You worked as your mother’s assistant for a short period of time but otherwise have no consistent employment history.
30A number of psychiatric reports were tendered to the court in the course of the plea. They give a comprehensive account of your history of mental illness and disability. I have read and taken into account these report.
31While you suffer from Schizophrenia, managed by medication, Dr Khan in her report of 21 March 2022, formed the opinion that in reference to the time of the offending, you do not have available to you a mental impairment defence as you knew your conduct was wrong and you could reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
32You experienced severe receptive and expressive speech delay as a young child. You were diagnosed at that time with a mixed developmental disorder with both a developmental speech disorder and an intellectual disability. By age 11, you had developed a preoccupation with things such as whistles and stopwatches; the diagnosis of intellectual disability was revised at this age following repeated cognitive assessments. Associate Professor Andrew Carroll, consultant forensic psychiatrist, retrospectively diagnosed you with Autism Spectrum Disorder (‘ASD’) in a reported dated 30 March 2016, noting your deficits in social emotional reciprocity, non-verbal communicative behaviours and in maintaining and understanding relationships have become ‘more clearly manifest’ as the demands of adolescent and adult life have begun to ‘exceed [your] coping capacities’.
33You have also been diagnosed with a fetishistic disorder and Paranoid Schizophrenia. The latter condition is characterised by persecutory and bizarre delusional beliefs, auditory hallucinations and disorganised thoughts and behaviour. Dr Khan noted that while you were not experiencing active signs of schizophrenic illness at the time of the offending, your pervasive ASD, which has resulted in emotional distress, poor problem solving, and poor communication skills, with possible fascination and preoccupation with fire, remains a possible factor in driving your criminal conduct.
34You first began experiencing auditory hallucinations in 2010 to 2011, when you were still a university student. You heard ‘voices’ of your Malaysian family members; Dr Khan notes that you described these voices as ‘peaceful and soothing’. It was not until 2014 to 2015 that these voices became ‘unfriendly’ and started asking you to ‘do bad things’.
35You were first hospitalised in a psychiatric unit in 2015 with first episode psychosis following a suicide attempt. In total, you have been hospitalised on at least six occasions to psychiatric units for relapse of your illness in the context of non-adherence to medications or experiencing stress. Your last psychiatric hospitalisation was in September 2018 for two weeks. You made a second suicide attempt using sleeping tablets in September 2020 in the context of low mood; this was in response to the intervention order in relation to your mother, and the COVID-19 lockdowns. Your most recent suicide attempt was on 20 January 2021 whilst on remand at the Metropolitan Remand Centre. You jumped off the top bunk in your cell injuring your foot, requiring a wheelchair and crutches.
36Dr Rakov opines in her report, dated 4 June 2021, that you were unwell at the time of the offending by virtue of the enduring nature of ASD and were experiencing an ‘abnormal stress response…on the background of impaired emotional processing and limited distress tolerance skills’. While acknowledging that that you could comprehend the nature of what you were doing at the relevant time, Dr Rakov is of the opinion that as a result of your ASD you could not reason with a moderate degree of sense and composure about the wrongfulness of your actions. However as noted above, Dr Khan formed the view that you do not have the defence available and evidently the defence was not relied upon.
37You have a single but relevant prior criminal matter from an appearance in this Court in 2017. You were convicted relation to charges of burglary, arson, attempted arson and criminal damage.
38Two letters were tendered from Paula Ryan, your NDIS Support Worker, indicating her support of you over the past two years. She confirms that you are in stable supported accommodation and outlines the various general and specialist supports you receive including monitoring of you taking your medication.
39A letter from Eastern Health was tendered outlining your engagement with that service as part of the Eastern Health Adult Mental Health Program. The writers of the letter, Dylan George, Psychologist and Dr Reza Roohi, Consultant Psychiatrist, confirm that since your release from custody you have been reliably engaged in your treatment which includes a case management review and antipsychotic medication every three weeks, a medical review every month and a consultant psychiatrist review every three months.
Sentence considerations
40Mr McGarvie, who appeared on your behalf, highlighted a number of matters in mitigation.
41Your plea of guilty at an early stage carries significant utilitarian value, sparing the time and expense of a jury trial and saving witnesses from having to give evidence. In the current circumstances, the plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
42Turning to Verdins principles, it was submitted on your behalf that your mental impairment is causally connected to your offending to the extent that it affected your clarity of thought, your ability to exercise appropriate judgement and your ability to make calm and rational choices. As such it was submitted that you are less culpable as a result of your impairment. Further that in the circumstances, general deterrence should effectively not be given weight in the sentencing discretion. Mr McGarvie conceded however that specific deterrence has a modest role to play given your relevant prior criminal history. Mr Raimondo, who appeared on behalf of the Director of Public Prosecutions accepted that all limbs of Verdins are enlivened in this instance; however, he submitted that limbs three and four (general and specific deterrence) should be moderated, but not eliminated.
43Whilst I note the circumstances of your offending are relatively unique, I am of the view that general deterrence, while moderated significantly, still has a role to play, and given your relevant criminal history, specific deterrence, while also moderated, is also required. You have demonstrated some insight into your offending, telling Dr Khan in the course of your psychiatric assessment with her that you understand setting fires is wrong as it can cause distress mentally and financially. Dr Rakov concludes in her report that whilst psychiatric aspects ‘limit [your] ability to express remorse’, you have nevertheless shown an ability to learn lessons in a rigid cause and effect manner from past experiences.
44I note your negative experience of custody. You spent 52 days on remand, and as noted by Dr Rakov, you remain terrified by your recent traumatic experience and of the thought of returning to custody. Dr Rakov concludes that long term intensive supports in the community are more likely to diminish your risk of reoffending.
45It was submitted on your behalf that your prospects for rehabilitation should be regarded as fair, subject to stable medication and treatment for schizophrenia, along with appropriate psychosocial support for ASD. The prosecution takes the view that your prospects for rehabilitation are highly guarded and low, noting that they are directly tied to your being compliant with your medication regime, and that your compliance in the past has been poor.
46I note this offending took place when you were living unsupported in a motel and intermittently with your father, and that previous instances of offending have also taken place in the context of itinerant living arrangements. Significantly, you are now in receipt of NDIS funding and are connected to an NDIS Support Coordinator who has been working with you and your mother since your release from custody. You have not reoffended since being released on bail in March 2021. You are also settled in your current supported accommodation. Plainly, your prosects are dependent on you maintaining your medication and continuing to engage with the services that are provided to you, which you have demonstrated that you are able to do. Further, in my view you have shown insight in relation to the consequences of your conduct. As such in the circumstances I asses your prospects of rehabilitation as very good.
Sentence
47Mr Cheong, would you please stand.
48Terrence Cheong, on Charge 1, arson, you are convicted and sentenced to 52 days imprisonment as the prison component of the combination sentence pursuant to s 44 of the Sentencing Act 1991 (‘Sentencing Act’).
49Following the period of imprisonment, which you have completed, you will be placed on a community correction order for a period of two years, with conviction. While all community correction orders are punitive in nature, the order that I am imposing will focus on your continued rehabilitation. You will be required to undergo treatment and rehabilitation in relation to your mental health and you will be subject to supervision.
50In relation to Summary Charge 3, commit an indictable offence whilst on bail, you will be convicted and discharged.
51Pursuant to s 18 of the Sentencing Act, I declare that 52 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
52Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 12 months imprisonment in combination with a community correction order.
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