Director of Public Prosecutions v Cochrane

[2023] VCC 223

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00622

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRENT COCHRANE

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2022 & 14 February 2023
DATE OF SENTENCE:	17 February 2023
CASE MAY BE CITED AS:	DPP v Cochrane
MEDIUM NEUTRAL CITATION:	[2023] VCC 223

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence- one charge of arson- one charge of reckless conduct endanger life- guilty verdict- psychotic episode at time of offending- low moral culpability- excellent prospects of rehabilitation-no prior criminal history-delay

Legislation Cited:      Crimes Act 1958, Sentencing Act 1991

Cases Cited:R v Verdins [2007] 16 VR 269, DPP v Arvantidis [2008] VSCA 189, Alexander v R [2021] VSCA 217, Boulton v The Queen[2014] VSCA 342; (2014) 46 VR 308

Sentence:                  Community correction order for a period of two years, with 250 hours of community work.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. R de Vietri	Office of Public Prosecutions
For the Accused	Mr. T Marsh	Doogue and George Criminal Lawyers

HER HONOUR:

1Trent Cochrane, on 26 October 2022, after a six day trial, you were found guilty by a jury of one charge of arson contrary to section 197(1) of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment; and one charge of reckless conduct endanger life contrary to section 22 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.

Circumstances of Offending

2The trial, which commenced on 19 October 2022 was run on a relatively confined ground. You, in effect admitted that you had committed the offence, but raised a defence of mental impairment.

3The circumstances of the offending were largely uncontested. These events occurred on 15 September 2019. The victims were Thomas Robinson and his wife, Kathryn Robinson, both of whom were unknown to you.

4On the day prior to the offending, Mr and Mrs Robinson travelled to their beach house in Coronet Bay. They had owned the house for 24 years and often spent time there. At approximately 10:30pm, the couple went to bed.

5In the early hours of 15 September, they awoke to thumping sounds. Mr Robinson went to the front of the house and saw you standing at a gate located on the end of the garage. You told him that three or four males were after you and that you needed to ring the police. Mr Robinson stepped off the porch, opened the gate for you and let you into the house.

6The two of you walked in the kitchen. You attempted to use Mrs Robinson’s mobile phone without success. You subsequently threw the phone towards the television. You walked from the dining room back to the kitchen. Mr Robinson turned on his phone for you to use. You then called Triple 0.

7Mrs Robinson came into the kitchen, and her husband indicated she should leave the house with her phone. She went outside to call ‘000’. Meanwhile, you were having difficulties using Mr Robinson’s phone and continued express fear of the people purportedly chasing you. You managed to speak to an emergency services operator however, you had difficulty explaining the location of the house despite receiving assistance from Mr Robinson.

8In the first of those calls at 3:32am, you can be heard  saying, “Help me, help me, there’s people coming, help me” and referred to someone having a knife. In the next call at 3:37am, you told the operator the house was about to burn down and that there were children present and on fire. You said there were five children and that there were ten people there. You also made a reference to someone being dead. You identified yourself as John Smith.

9You then picked up matches from the kitchen bench and began lighting and dropping them, one match at a time. You then began lighting small pieces of paper. Mr Robinson urged you not to use the matches. Mr Robinson believed that you were still on the phone with the Triple 0 operator.

10Next you turned on the hotplate at the stove and placed some pieces of paper on it. They smouldered. You began taking items from the fridge and threw them onto the floor. You picked up a gas lighter, which was located on top of the fridge.  You walked towards the benchtop and began lighting more paper. (Charge 1: Arson)

11You pulled down the blind covering the kitchen window, towards the flames. You sprayed an aerosol at the flames, so that the flames would catch onto the blind. Mr Robinson went to get a fire extinguisher. You took a knife from the knife block and said, ‘Don’t’. You gestured towards Mr Robinson with the knife.

12Mr Robinson moved towards you and you stepped forward to grab his shoulder. Mr Robinson jumped back and injured his hamstring. Mr Robinson repeatedly told you to put the knife down. You grabbed hold of him again and held on to him. You said to Mr Robinson that you did not want to kill him.

13The fire was expanding and a large amount smoke was filling the kitchen. There was a small explosion from the aerosol can. The electricals to the house went out.  You told Mr Robinson to get on his knees. Mr Robinson initially did not comply, but you again insisted that he get onto the ground and the two of you both got on your knees. You still had hold of Mr Robinson at this time. (Charge 2: Reckless Conduct Endanger Life)

14You then put the knife down and, whilst maintaining hold of Mr Robinson, you began throwing things into the fire. The knife was then covered by a fallen bookcase. You made several more attempts to contact Triple 0. Those Triple 0 calls were played to the jury during the trial and they were harrowing, to say the least. In those calls Mr. Robinson can be heard pleading with you to stop what you’re doing. You can be heard saying the words ‘Stabbing’ and then, ‘Burn, burn, burn’.

15As smoke filled the kitchen Mr Robinson again called Triple 0 and asked for the police immediately. You and Mr Robinson began to make your way through the passage way towards the front of the house. The police arrived soon after, shortly after 4am.

16Police activated their body worn cameras. You had a brief conversation with police on the front porch before being arrested and taken to a divisional van, where you had a further conversation with officers.  You admitted to police that you had started the fire. 

17Mr Robinson was assessed by paramedics and was later transported to Wonthaggi Hospital where he was treated for smoke inhalation.

18You were assessed by paramedics at the scene and taken to Latrobe Regional Hospital for observation in relation to smoke inhalation.  Whilst at the hospital you underwent blood alcohol testing at approximately 7am. Your blood alcohol content reading was 0.139. You tested negative to other drugs. You have since given an account of your movements earlier in the evening of 14 September 2019, and this included that throughout the late afternoon and into the evening, you consumed approximately 15 standard drinks.

19The house was significantly damaged by the fire and ultimately a new house had to be rebuilt by the Robinsons.

20It is necessary to say something about your movements earlier in the evening as reported by you to various mental health experts, namely psychiatrists Dr Maria Triglia and  Dr Prashant Pandurangi, who each gave evidence at trial; psychologist Julie Anne Peake with whom you have been consulting since the offending, and Dr David Trainor, who conducted a Forensicare assessment following the plea. In essence, you were celebrating a birthday party in Coronet Bay. You had been drinking alcohol since the late afternoon and later went back to a friend’s house. At some point in the night, at around 1am you became acquainted with a woman whom you described as wearing something resembling a white nightie. The two of you eventually engaged in sexual activity in a shed at the back of the premises.

21At some point on your account, you left the party with the woman to go to Pearcedale, travelling in a vehicle which you subsequently learned was stolen. This caused you to “freak out”. The two of you ended up at the beach and you have recalled feeling very alert and that “something bad was happening”. Whether it was as a result of something this woman told you, or a belief you formulated on your own, you began believing that people were coming to get you. You reported to Dr Trainor that you assumed you were going to be killed and ran for your life.

22It is against this backdrop of fear and paranoia that you arrived at the home of the Robinsons. Believing that your life was in danger, you appear to have been anxious to alert authorities, and it was agreed during the evidence of the experts at trial, that you lit the fire in an effort to attract the attention of emergency services. You have a poor recollection of the events as they occurred at the Robinsons’ home. You reported to Dr Maria Triglia that when placed in the police van you believed you were being taken away to be killed. It was only upon being questioned by a doctor in the emergency department that you began to feel safe, like you were not being pursued anymore and you reportedly started to wonder what had occurred in reality.

Trial

23The trial was run a relatively confined ground relating to whether you were mentally impaired. Most of the evidence was uncontentious. The prosecution called Thomas Robinson, who gave evidence about the events of the night and your behaviour at his home; paramedics who attended to you at the scene and some police witnesses. The 000 call was played in which Mr. Robinson and yourself can be heard speaking with emergency services. It is evident from that call that the events as they played out were distressing and upsetting for Mr. Robinson. Indeed, it is apparent from that call that you were suffering from delusions and paranoia.

24The issue for the jury to determine was whether you were mentally impaired at the time you committed these offences. The trial centred on the question of whether you were suffering from a mental impairment; that is whether you suffered from a  disease of the mind. There was no dispute between the parties that you were experiencing a psychotic episode at the time, and that this had the effect that you did not know that the conduct was wrong (that is, you could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong). The issue was whether that psychosis was brought about as a result of mental impairment.

25Two experts were called during the trial and gave competing opinions as to what had caused your psychosis. The prosecution called Dr Maria Triglia who gave evidence that she considered that you had experienced an alcohol induced psychosis. You called Dr Prashant Pandurangi, who opined that the psychosis was the result of alcohol precipitating an underlying disease of the mind, associated with a previous trauma and referred to the events of approximately 17 months earlier. Clearly, the jury by its verdict, rejected the latter as an explanation for your psychosis. I will return to this shortly.

Victim Impact

26The victims in this matter, Thomas and Kathryn Robinson have prepared powerful victim impact statements, which were tendered during the plea hearing. As a consequence of you setting fire to their premises, both Mr and Mrs. Robinson lost their residence, in which they regularly spent time as a holiday home. They had many happy memories of time spent as a family in that house. Whilst insurance covered the rebuild of that home, the emotional impact has continued to stay with them. It is difficult to do justice to those victim impact statements but I will refer to some of the more poignant aspects of each.

27Thomas Robinson, as a result of you prohibiting him from leaving the house, was placed in great danger. He suffered smoke inhalation and has experienced ongoing respiratory and oesophageal issues. Mr. Robinson has concerns about the ongoing effects of the fire on his family. Shortly after the offending, he was diagnosed with anxiety, depression and Post Traumatic Stress Disorder, which remains the same. He is startled easily and has flashbacks multiple times a day. He has difficulty sleeping and now has concerns being around people he doesn’t know. As a result, he stays home and keeps to himself a lot more. He often dwells on his inability to leave the house that night whilst he was waiting for police. He has experienced confusion and as he stated,

“I still have difficulty understanding what happened. I simply tried to help a person needing assistance. In return I was taken captive, my house destroyed and I was nearly killed.”

28Kathryn Robinson has described the considerable impact that losing her holiday home and fearing for her husband’s safety has had on her life. She refers to the efforts she made following the offending to support her husband, who had become quite withdrawn. He would become upset when friends wanted to visit and was reluctant to discuss what had occurred. In the weeks after the fire, Mrs. Robinson found it difficult to return to work and be fully present in her role. She lacked the energy to properly commit herself to her job and ultimately decided to resign and retire from her work in religious education. This in turn has had a financial impact on the couple.

29Mrs Robinson has continued to ruminate on the events to the extent that she became fearful when caring for her grandchildren as to how they would cope if something happened again and she would have the extra responsibility of ensuring their safety. She too has had difficulties sleeping and still finds herself being hypervigilant when they visit their rebuilt holiday home.

30Mrs. Robinson described the sadness and anger she felt when she saw the devastation the fire had caused. The holiday home they had enjoyed for many years and at which they had many memorable family gatherings such as Christmas, had been destroyed. Priceless items such as photographs and pictures were lost, including some artwork that had special meaning to her and her husband such a painting of Wallagha Lake where they had gone camping with the family, and another given to them by friends when they first moved in, one of whom recently passed away. As she says, “there is an empty space there that can’t be filled.”

31I take into account the effect your offending has had on the victims, which has been profound. Their sense of safety, their confidence and their ability to work, sleep and socialise has been significantly compromised. Their holiday home, a place of happiness and retreat for them, destroyed, and all because of their preparedness to help a stranger and invite him into their home to call police.

Personal Circumstances

32You were 34 years of age at the time of this offending. You are now 37. You were born in Victoria and you are the youngest of two children in your family. Your parents have worked as professionals, likewise your sister. You enjoyed a good family life and early family environment, growing up in a country town on the family farm. You are fortunate to have a very good relationship with your parents and your sister, all of whom attended court every day to support you during the trial.

33Growing up you were heavily involved in football and cricket. Your schooling was relatively uneventful. You are described as someone who was studious, fun and never disrespectful. You were a good role model according to your sister and participated wholeheartedly in your education. You completed VCE and then went on to obtain a Bachelor of Civil Infrastructure Engineering at RMIT in 2006-2007, followed by an advanced diploma of Civil Engineering. Whilst you were at university, you worked at the Tooradin and District Sports Club doing bar and gaming work.

34You have continued to further your studies, completing a Certificate IV in Frontline Management and a Leadership Essentials for Supervisors with Master Builders Victoria in 2018. You have spent the past 15 years working as a civil engineer on major infrastructure projects across Australia, and in New Zealand.

35Your Curriculum Vitae was tendered on the plea (Exhibit 3) and it is evident that you have a strong work history and have been involved in many projects in senior roles for major projects worth millions of dollars in which you carried a high degree of responsibility. Your CV reflects that you have delivered Road and Rail Infrastructure projects, and have delivered projects on behalf of Government Infrastructure authorities. Most recently you worked as a Delivery Lead on the Gippsland Line Upgrade. You recently resigned from this position in October 2022 due to mental fatigue but intend to return to work at the conclusion of these proceedings.

36Tendered on your plea were a number of character references[1] from family, friends, colleagues and others who have known you both personally and professionally. Those with whom you have worked as a civil engineer speak extremely highly of you both in terms of your commitment to your work and the projects you have participated in; and the leadership that you have demonstrated within that industry. You are described as a hard-working, genuine person and a highly experienced and competent engineer. It is apparent from all of the references tendered that you are regarded amongst those around you as a kind and caring individual, reliable and helpful.

[1] Exhibit 2.

37You have been of great support to your parents, in particular during your father’s ill-health whilst he underwent treatment for cancer; and you would frequently assist your grandmothers during their lives, often dropping off groceries and spending time with them. You have been a celebrated sportsman in many fields. It is clear that you are a much loved and highly respected son, brother, friend and workmate. These proceedings have not only had a significant impact on the victims, but on your family as well who have done their best to support you. You are very fortunate in this regard to have such supports.

38There is no history of mental illness within your family and prior to this offending, you had not sought any counselling or therapy. You appear to have lived a relatively stable life without any mental health concerns until recent years. Apart from some concussion 12 years ago during a football match, you have not experienced any significant injuries or illnesses until 2018.

39In December 2017 you had a melanoma removed from the back of your arm, which initially caused you considerable concern, as the severity of your condition was unclear.

40In April 2018 you were the victim of an assault which had a significant impact upon you emotionally. You had returned to Victoria after working overseas and were celebrating an evening with friends at the Koo Wee Rup Hotel. As you were leaving the venue with your friends, you were approached by people in a vehicle. An assault was carried out by one or more occupants of that vehicle, whereby you were punched to the back of the head and left unconscious. You suffered fractures and were taken to hospital.  You were reportedly left with mild speech difficulties from this assault including having problems articulating words and in pronouncing certain words. You have attempted to cover these deficits by using a similar word. You tended to minimise the emotional impact of the event by trying to push it to the back of your mind. However, you have felt angry that the assailant was never apprehended.

41In December 2018 you experienced further distress upon learning that two of your father’s co-workers had taken their own lives. You have also suffered the loss of a good friend. These losses affected you greatly. In the months that followed, you worked excessively but with little enjoyment from your occupation. You have described that you felt empty and numb around this time. As a result, you stopped socialising and spent a lot of time on the couch at your parents’ home. You ultimately resigned in September 2019.

42Following your arrest for this offending in 2019, you began seeing a clinical psychologist Julie-Anne Peake almost immediately. You continued to see her throughout 2019 and 2020, up until May 2021. You saw Ms Peake again on 11 November 2022 following the jury’s verdict.

43Although you were residing with your parents at Tooradin, you have recently moved to Port Melbourne where you live alone. You are currently not in a long term relationship nor do you have any children.

44You have no prior criminal history.

Mental Health

45Ms Peake has prepared a report which was tendered on the plea (Exhibit 1). When you initially began seeing her, psychological tests indicated that you were experiencing moderate to severe psychological distress that was of clinical significance. She noted you had experienced an alcohol induced psychotic episode which had resolved. She considered that you were experiencing Post Traumatic Stress Disorder with dissociative symptoms, delayed onset;  and Major Depressive Episode of moderate severity, both of which are in remission.  These symptoms have improved over time with Cognitive Behaviour Therapy called Rational Emotive Behaviour Therapy, and are now considered by Ms Peake to be within normal limits. She observes that at the end of your treatment you had actually obtained post-traumatic growth and are in a better emotional place than before your assault in 2019. Ms. Peake notes that you were motivated to better yourself throughout treatment.

46Following the plea hearing in December last year, the court ordered a Forensicare assessment take place. A psychiatric report has been prepared by Dr David Trainor. He noted your lack of psychiatric history prior to 2018, and that there was nothing in your history to suggest conduct disorder or antisocial personality disorder. You have no history of lighting fires or demonstrated any interest in this. He notes that following the offending you reportedly struggled to come to terms with what you described as a break in reality,  and you worried that you may ‘lose control again’. You experienced nightmares for a month. You have reported experiencing no psychotic symptoms such as hallucinations or delusions. Dr Trainor notes that after being assaulted in 2018 you suffered a decline in mood and you became withdrawn, experienced language difficulties and anhedonia. He considers that at the time it is likely you were experiencing a depressive disorder and features of Post-Traumatic Stress Disorder.

47Dr Trainor considers that upon assessment, your thoughts were organised and coherent. You did not appear to be responding to non-apparent stimuli and you did not report perceptual disturbance. There is no evidence that you were suffering from an acute mood or psychotic disorder at interview. He considers that your offending was directly linked to your psychosis and would not have occurred had you not been psychotic.

48You reported to Dr Trainor that you have had no adverse incidents with alcohol previously. Apart from an incident when you were in New Zealand where you woke up in the bedroom of a woman who was staying in the same friend’s house as you, you have not had any concerning responses to alcohol. Nothing involving hallucinations or antisocial behaviour.  Since this offending, you have not consumed alcohol and you intend to remain abstinent. You told Dr Trainor that alcohol has destroyed your life and according to him, you appeared to appreciate the significance that the effects of alcohol have had on you, and you were insightful as to the dangers of future use. Dr Trainor recommends you undergo alcohol counselling to assist you in maintaining abstinence. He further recommends that your mental health be monitored by your GP.

Application of Verdins

49The Court of Appeal in R v Verdins[2] stated that impaired mental functioning at the time of offending may reduce an offender’s moral culpability if it had the effect of:

(a)   impairing the offender’s ability to exercise appropriate judgement;

(b)   impairing the offender’s ability to make a calm and rational choices, or to think clearly;

(c)   making the offender disinhibited;

(d)   impairing the offender’s ability to appreciate the wrongfulness of the conduct;

(e)   obscuring the intent to commit the offence; or

(f)    contributing (causally) to the commission of the offence.[3]

[2] [2007] 16 VR 269 (‘Verdins’).

[3] Verdins 275 [26].

50Here, it is accepted that you were experiencing a psychosis or psychotic episode at the time of this offending. Even Dr Triglia, although she concluded that you suffered an alcohol induced psychosis, also considered that your underlying depressive symptoms and your mood state and past experience of the assault contributed to the form the psychosis took (although were not the cause).[4]

[4] Trial transcript 107, T111, T134.

51Impaired mental functioning, whether temporary or permanent is relevant to sentencing in a number of ways as identified in Verdins, including:

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. [5]

[5] Verdins 276 [32].

52Where an offender’s mental health condition is related to the use of drugs whether legal or otherwise, they may be precluded from relying on the first limb of Verdins. However, as the Court of Appeal articulated in DPP v Arvantidis,[6] this will only be the case if they were aware that by taking the drug there was a real risk that their judgement would be so affected that they would behave irrationally, or that it would affect their ability to exercise control over their conduct. If they lacked this foresight, then the first limb of Verdins will continue to apply.

[6] [2008] VSCA 189.

53Here the drug consumed was alcohol, a legal and readily available drug. You had been drinking alcohol for many years, without any adverse effects of significance. Although you had hitherto frequently consumed high levels of alcohol, you had never, prior to this night of the fire, suffered any form of psychosis whilst affected by alcohol. Indeed during the trial, evidence was given by Ryan Braun who has known you since you were both 13 and has spent time socialising with you. He has witnessed you drinking large quantities on a number of occasions, including at festivals and New Year’s Eve parties. He described that from his experience, when affected by alcohol you would generally behave in what he described as “a bit of a jokester way.” He had never seen you behave in any sort of antisocial way when affected by alcohol or do anything irrational or inexplicable.

54Your lack of prior criminal history reflects that you have led a law-abiding life and there is no suggestion that you have ever conducted yourself inappropriately before, substance affected or otherwise. Therefore there is nothing from your past experiences with alcohol that would have led you to anticipate that you would have such an extreme reaction on this occasion. I also note the evidence of Dr Pandurangi that alcohol is not a psychotogenic substance. Whilst alcohol may lead individuals behaving in a disinhibited or perhaps even irrational or uncontrolled manner, it is not something that you would expect to cause psychosis.

55Dr Trainor, as I have noted, concluded that the offending would not have occurred but for your psychosis. I am satisfied on the balance of probabilities that you did not know that consumption of alcohol would have such effects as it did that night.

56The prosecution accepts that you did not know that if you consumed a large quantity of alcohol that you might become psychotic. Moreover, as the consumption of alcohol is legal, this case differs from cases involving psychosis induced by unlawful substances such as methyl amphetamines.[7]

[7] Alexander v R [2021] VSCA 217.

57To that end, the prosecution concedes that a sensible moderation of general deterrence and specific deterrence is open as a reflection of your reduced moral culpability. However Mr. de Vietri submits that these considerations are not extinguished altogether having regard to the very large amount of alcohol you consumed.

58On this point, I accept that there is no evidence here that it is the quantity of alcohol, (as opposed to you having consumed alcohol itself), which brought on the psychosis. Given that your psychosis appears to have been an unexpected response to you consuming alcohol, and one which you could never have anticipated, I do not regard the amount of alcohol that you consumed on that occasion as a factor which would elevate your moral culpability. I am satisfied that your moral culpability here is low. You are not being sentenced on the basis that you consumed a particular quantity of alcohol.

59Given the unusual circumstances of this case and your substantially reduced moral culpability, the principles of general and specific deterrence and denunciation have minimal application here.

60Echoing what the Court of Appeal said in Alexander v The Queen at [46], your diminished moral culpability does not detract from the seriousness of the offending, or your legal responsibility for it. Rather, the sentence appropriate to the circumstances in this case should reflect that you were suffering a psychosis and there is nothing to suggest that you were aware of the likely consequences of a psychosis being a reaction to the consumption of alcohol.

Remorse

61Although this matter proceeded to trial and you were found guilty on the verdict of a jury, it is submitted, and the prosecution accept, that you are remorseful for this offending. The trial was run on the narrow issue of mental impairment, and there was no challenge to the allegations or the impact of the offending. This is, as your counsel submits, one of the rare exceptions where there is no incongruity between the plea of not guilty and your remorse. I accept this.

62Furthermore you have expressed this remorse to the treating professionals who have assessed you, and to your character referees. You gave evidence at the plea in which you expressed your sadness and devastation at seeing what the Robinsons have gone through. By seeking immediate treatment through psychological counselling, you have demonstrated that not only are you sorry for your conduct, but that you are determined to ensure that you were educated and understand what led to your behaviour on this night. In doing so, you have gained considerable insight into your own mental health, and demonstrated that you have already taken steps to ensure that there is no repeat of such behaviour in future.

63Having regard to these matters, your lack of prior criminal history or any recording of any antisocial behaviour, your very strong family supports, coupled with the assessment by corrections that you present as a low risk of re- offending, I am satisfied that you have excellent prospects of rehabilitation.

Delay

64I accept that there has been considerable delay in the finalisation of these proceedings. Through no fault of your own this matter has taken time to come to a conclusion. There have been delays associated with the covid 19 pandemic. Previous listings of your trial were thwarted due to ill health of Counsel, and witness unavailability. There was a delay of over three years between the date of offending and the jury returning a verdict. I take this into account as a mitigating factor.

65I accept that during this period of time you have had the strain of legal proceedings hanging over your head which has caused you, and by extension your family, ongoing anxiety. Similarly, I note that the delay in proceedings would have impacted upon Mr and Mrs Robinson but again none of the delay is attributable to you. During this period of time, you have continued to make progress towards your own rehabilitation and Ms Peake’s report confirms that you have regularly attended appointments and, as I’ve noted you have made excellent progress.

Totality

66You are to be sentenced here for two separate charges. Although there was a degree of overlap between two offences as they arise from the same set of circumstances, your actions in prohibiting Mr Robinson from leaving his home as it was consumed by smoke and fire, does present an additional aspect of criminality and I accept increases the overall seriousness of the offence. To that end, whilst I am mindful of the principles of totality, there is a need for the sentence to reflect the individual charges and the conduct they comprise.

Nature and Gravity of Offending.

67The offending here was extremely serious. As a direct result of your conduct, you destroyed by fire the holiday home of Mr. and Mrs. Robinson, two people who were somewhat older than you and more vulnerable. Your actions in refusing to allow Mr. Robinson to leave as you continued to start fires within the home, and as thick smoke began billowing into the kitchen, was incredibly dangerous. Although it is not the subject of a separate charge, your use of the knife in ensuring that Mr. Robinson did not leave, added to the atmosphere of fear and terror that was permeating with increasing magnitude into his home.

68Mr. Robinson, who could fittingly be described as a good Samaritan, invited you inside his home in the early hours of the morning in an effort to assist you, as he understood that you were under some sort of threat. He genuinely tried to help you, and as is evident from the 000 calls, he was continually trying to calm you down whilst also managing his own rising fear as he watched his family holiday home start going up in smoke. It goes without saying that these events were utterly terrifying and traumatic for Mr. Robinson and his wife, as she left to get help. As a consequence of being kind and willing to help another human being, he has suffered considerably, as has his wife. It is fortunate that Mr. Robinson was not more seriously injured or indeed killed. The consequences of the offending, as devastating as they were, could have been far more serious. Fortunately they were able to rebuild their home with insurance.

69Having said that, this sort of conduct appears to be totally out of character. It is conceded by the prosecution that you were undergoing a psychotic episode.  By the jury’s verdict, the cause of that psychosis was alcohol. For the reasons I have already discussed, although the offending was very serious, and these offences are by their nature regarded has serious, by reference to the maximum penalties, I regard your moral culpability as low.

Relevant Sentencing Factors

70The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case.  These include the seriousness of the offending, your culpability, the effect of your offending on the victim and your personal circumstances.

71The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  I am to have regard to protection of the community.  I also have regard to principles of parsimony.

72The prosecution submits that general deterrence, specific deterrence, just punishment and denunciation, whilst moderated by the application of Verdins remain relevant sentencing factors in this matter. It is submitted that I must have regard to all of the factors listed in section 5 (2) of the Sentencing Act 1991. These also include the maximum penalty and current sentencing practices.

73Ordinarily, general deterrence is to be given considerable weight in the sentencing process for the offences of arson and reckless conduct endanger life. The offending was extremely serious. However, for reasons I have already outlined, I consider that your moral culpability is low. A sentencing judge must take into account all the relevant considerations in the specific case before them. As I have already noted, specific deterrence is not a matter that looms large here.

74The prosecution here submits that despite your reduced moral culpability, the seriousness of the offending and its impact on the victims calls for a term of immediate imprisonment. The prosecution submits that a combination sentence is open. Your counsel submits that having regard to the unusual circumstances of this offending, and your very low moral comparability, this case represents an inappropriate vehicle for deterrence and denunciation. In light of this, and your good character, it is submitted that the imposition of a fine or community correction order would adequately meet the relevant sentencing objective. Furthermore it is submitted that given the peculiarities of this case and the unlikeliness that you would reoffend, a conviction is not warranted.

75I am of the view that general deterrence, while moderated significantly, is not entirely eliminated. There is also a need for the court to denounce your conduct. Given your extensive efforts to rehabilitate yourself, I am satisfied that the protection of the community is less of a concern here but it is not irrelevant.

76The law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a community correction order is a punitive disposition which is capable of addressing all relevant sentencing considerations.

77As the Court of Appeal noted in Boulton v The Queen,[8]  a community correction order ‘may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.’

The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[9]

[8] [2014] VSCA 342; (2014) 46 VR 308. 

[9] Ibid [131].

78I am satisfied that despite the seriousness of this offending and the impact on the victims, for all of the reasons I have identified (in particular your low moral culpability, your good character and lack of prior criminal history), that sentencing objectives could be met here with a community correction order. I consider that the community is best served by you continuing your rehabilitation within the community and by contributing to society by way of unpaid community work. You have been assessed by corrections as suitable. You are considered a low risk of re-offending by Corrections and accordingly, minimal conditions are recommended by Corrections.

Conviction

79Before turning to the sentence to be imposed here, I need to address the question of whether the court should impose a conviction. Your counsel has urged me to exercise my discretion and not record a conviction. The prosecution submits that a conviction is warranted having regard to the seriousness of the offending.

80Section 8 of the Sentencing Act 1991 gives the court a discretion as to whether or not to record a conviction. In exercising that discretion, the court must have regard to all the circumstances of the case. This includes (a) the nature of the offence; (b) the character and past history of the offender; (c) and the impact the recording of a conviction might have on the offender’s economic and social well-being or on his employment prospects.

81For the reason that I have already articulated, the offending here was very serious. You have led an otherwise unblemished life. I accept that you are a person of good character and a hardworking member of the community. Your conduct on the evening in question was indeed highly out of character, occurring in the context of a psychosis.

82Your counsel has submitted that a conviction may impact upon your ability to continue to work as a civil engineer, or to be engaged to work on certain major projects. Registration as a civil engineer is administered by Consumer Affairs Victoria. Mr Marsh has referred me to an extract relating to professional registration (Exhibit 4), which sets out details as to eligibility for registration. An individual will be ineligible to be registered and endorsed if they are deemed not to be a ‘fit and proper person’ to provide professional engineering services. In determining whether one is a fit and proper person, the Builders Licencing Authority may take into account whether a person has been convicted or found guilty of an indictable offence in Victoria or elsewhere.

83Your character referees within the industry have also referred to the impact that a conviction might have on your ability to be contracted to certain projects. A criminal record may severely impact employment opportunities. As I understand it, certain high risk construction works with large budgets and complex teams are unwilling to hire people who are not seen to be of good character. You gave evidence about the accreditation process and the impact of both a finding of guilt and a conviction might have. You gave evidence that full disclosure is required as part of most construction companies’ corporate governance. There are also potential consequences with respect to insurance. In your evidence you stated that you do not believe that with a criminal conviction for these offences, the industry would remain open to you professionally.

84On the basis of your evidence and the other material tendered on your behalf, I accept that there would indeed be an impact on your economic and social well being, along with your employment prospects were a conviction to be recorded. Having said that, the fit and proper person test would require you to disclose a finding of guilt, regardless of whether a conviction is imposed. It does seem that on the basis of the findings of guilt on these two charges that you are a real risk of not meeting the fit and proper person test. This risk may be amplified by the imposition of a conviction.

85I have taken all of these matters into account as I am required to do pursuant to s 8 of the Act. Ultimately I have come to the conclusion that a non-conviction disposition would fail to adequately reflect the nature of the offending, which was clearly very serious. I intend to impose a conviction.

86Accordingly, I sentence you as follows:

87On charges 1 and 2, you are convicted and sentenced to a community correction order for a period of 2 years. There are a number of conditions attached to the CCO. They are as follows:

·     That you be under the supervision of a community corrections officer for a period of two years.

·     You are to perform 250 hours of unpaid community work

·     That you undergo treatment and rehabilitation- including that you undergo any mental health assessment and treatment

·     You are to participate in courses to reduce the risk of re-offending as directed by Corrections. [I understand that you will be assessed for an offence specific program eligibility through the Forensic Intervention Service (FIS)]

·     I will order that 100 hours of treatment and rehabilitation can be counted as hours of unpaid community work for the purposes of this condition.

88There are also a number of core conditions attached to any CCO:

·You must not commit any other offence punishable by imprisonment during the two years.

·You must comply with any and all obligations or requirements.

·You must report to and receive visits from Corrections.

·You must report to your local community corrections centre, which will be at the Melbourne Justice Service Centre within two clear working days from today.

·You must let a community corrections officer know within two working days of a change of address or job.

·You must not leave Victoria without first getting permission, and you must obey all lawful instructions from Corrections. They are all the mandatory core conditions that attach to any Community Correction Order.

89I note there is no pre-sentence detention.

Disposal Order

90Disposal orders made regarding items 6-12 only.