Director of Public Prosecutions v Dennis

[2021] VCC 1998

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01984

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU MATTHEW DENNIS

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2021
DATE OF SENTENCE:	30 November 2021
CASE MAY BE CITED AS:	DPP v Dennis
MEDIUM NEUTRAL CITATION:	[2021] VCC 1998

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentencing.

Catchwords:            Plea of guilty – Arson – Extensive criminal history – Verdins – Schizophrenia – Delay – Very good prospects of rehabilitation – COVID-19 pandemic.

Legislation: Crimes Act1958 ss 197(1), 197(6); Sentencing Act1991 ss 6AAA, 18, 44.

Cases:Worboyes v The Queen [2021] VSCA 169.

Sentence: Imprisonment for a period of 202 days together with a community correction order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Perry	Office of Public Prosecutions
For the Accused	Ms N Kaddeche	Leanne Warren & Associates

HIS HONOUR:

Introduction

1Beau Matthew Dennis, you have pleaded guilty to one charge of arson contrary to ss 197(1) and 197(6) of the Crimes Act1958, which carries a maximum penalty of 15 years imprisonment.  You have also admitted your criminal record.

Circumstances of the offending

2A prosecution opening was tendered on the plea and may be summarised as follows.  The premises the subject of the arson was at 5 Wheeler Road, Cape Patterson.  At the time you were the tenant and sole occupant of the home.  The house was a single-storey building with four bedrooms and was of fibro construction.  The owners of the property were Susan and Murray Cook who had let the premises through an estate agency in Wonthaggi.

3The premises were completely destroyed by fire on 28 December 2015 and demolition was required.  Police had previously attended at that premises on 25 December 2015 shortly after midnight in response to a Triple 0 call.  Attendance disclosed that the windows were being smashed and furniture thrown out of the house.  Police spoke to you on that occasion but you refused to exit the premises. The police left after the situation quietened down.

4You were observed by two of your neighbours at number 3 and number 7 respectively in Wheeler Road on the day of the fire.  Matthew Snell was the occupant of number 7 Wheeler Road and Dale Donahue the occupant of number 3 Wheeler Road.  Mr Snell spoke to you upon you entering number
5 Wheeler Road about the earlier incident and noted that you were packing a blue and white duffel bag with personal items where you were located on the rear deck area of the premises.  Approximately five minutes later, Mr Snell smelled smoke and then saw smoke and flames coming from the windows.  After making arrangements for his family's safety, he called Triple 0.  You did not remain at the scene but left the area.

5Mr Snell described the person he spoke to as being in his late 20s or early 30s, short brown hair and about six foot tall wearing what might have been a light blue singlet.   At the committal, he also described the tattoo on your leg.  On 26 January 2016, Mr Snell identified an image of you on a photo board, confirming that that was the person he spoke to and, to his knowledge, was renting the premises.

6Mr Donahue, who at the relevant time was the occupant at 3 Wheeler Road, Cape Patterson, saw you walking past his house and enter number 5 Wheeler Road on the day.  He estimated the time as being between 4.30 to
5 pm and said that after a rough period of 30 to 45 minutes past, he saw a small amount of white smoke coming from the corner window at the premises from his position upstairs in his own house.  Within seconds, he said the smoke turned black and flames were roaring through the window.  He secured his own premises and then phoned Triple 0.  Mr Donohue was not able to identify you during a photo book procedure at the Wonthaggi police station on 19 January 2016.  

7The Country Fire Authority and police members attended at the blaze which was extinguished by the fire officers.  The house had an insured value of $142,167.

8You were later arrested in Melbourne and interviewed regarding unrelated matters.  In the course of an interview, you were asked about the arson allegation and made no admissions. 

9On 28 December 2015, as a result of requests from investigating police members, John Desmond Kelleher attended at the premises of 5 Wheeler Road, Cape Patterson.  Mr Kelleher is a scientist at the Victoria Police Forensic Services Centre.  Examination of the premises revealed that there had been a fire on the western side of the house, probably in the western bedroom, which had spread into the roof cavity, collapsing the walls and floors.  Further, that there had been a fire in the lounge room western corner in the south-western half of the third bedroom. Less serious burning was observable at the rear of the premises.

10Examination did not reveal any cause of accidental ignition nor was it possible to determine conclusively any source of ignition.

Nature and gravity of the offending

11It is self-evident that Parliament considers the offence of arson as a serious offence which is reflected by the maximum penalty of 15 years imprisonment.  However, the offence can embrace a wide range of conduct and the maximum penalty is one of a number of factors to take into account in assessing the gravity of the offending.

12The circumstances in this instance disclose that, when you were interviewed on the day, it is accepted that you were displaying psychotic symptoms and, as will be discussed below, you have a longstanding diagnosis of schizophrenia, together with a history of substance use.  These matters, as I say, will be discussed later.

13Whilst no victim impact statement was prepared by the owners of the house, the experience of having their property destroyed by fire would undoubtedly have been distressing.  Further, while insurance may have covered the damage, offences of this nature also cause great inconvenience, as victims go through the time consuming administrative processes.

Personal circumstances

14You are now 42 years of age.  You were born and raised in Wonthaggi and have three brothers.  Your father was a builder and your mother worked as a pharmacy assistant.  They are both now retired and remain together.

15You struggled academically and behaviourally and were suspended from school at times.  You started using cannabis in your teen years and substances have been an issue in your life since.  You left secondary school at Year 10 to commence a glazing apprenticeship.  You participated in the apprenticeship for three years but did not ultimately complete the final year due to increasing alcohol and drug use.  You have since worked in an abattoir, on pearl boats, truck driving and in labouring jobs, but have struggled to maintain employment due to your long-term mental health and substance use issues.

16At the age of 16, you began using heroin and you have used benzodiazepine, cannabis and ice.  At the age of 19, you made an attempt on your life and you were admitted to hospital.  You experienced an onset of psychotic symptoms in the context of drug use and were later diagnosed with schizophrenia.  You have been on antipsychotic medication on a long-term basis but have ceased use at certain times.  It was in this context of mental illness and drug use that your criminal offending began as a young adult.

17You have received a number of community based orders and spent various periods in custody.  You have also been involved in violent incidents and conflict with police.  Your criminal history is extensive and you have served a period of imprisonment on a number of occasions.

18Your relationship with your family has suffered and you have at times been the respondent in intervention orders protecting your parents from you due to your aggression.  One of your brothers has also struggled with drug use.

19In the year leading up to this offending your psychotic symptoms became particularly acute and you were experiencing delusions and hallucinations.  This is confirmed in medical reports which I will expand upon below.  After the offending, you spent 202 days on remand before being granted bail on 25 July 2017.  Upon release from custody, you absconded interstate and eventually handed yourself into police in July 2019.  You were again granted bail.

20You are currently living with your parents in Wonthaggi and are in receipt of the Disability Support Pension.  You are compliant with medication, namely, paliperidone injections and quetiapine, and you are maintaining your treatment regime.  It was submitted that you no longer drink alcohol or use drugs.  After the conclusion of this matter and once borders open, you hope to travel with your parents in a caravan around Australia.  You also look forward to contacting your son.

21A report from Dr Nina Zimmerman, forensic psychiatrist, dated 2 October 2021, was tendered on the plea.  Dr Zimmerman assessed you on 28 September 2021.  In Dr Zimmerman’s opinion, you experience a constellation of symptoms consistent with schizophrenia and meet the criteria for substance use disorder, currently in remission.  Dr Zimmerman is of the opinion that it is more likely than not that you were psychotic at the time of the offending.  While you admitted that you were using drugs at the time of the offending, I note Dr Zimmerman's opinion as follows:

A differential diagnosis of episodes of drug-induced psychosis seems less likely given the chronicity of symptoms.  Indeed, it appears that there was a period of deterioration when he had been off drugs for some months.  That they played a role in precipitating and aggravating his psychotic illness is in little doubt.[1]

[1] At [115].

Sentencing considerations

22Ms Kaddeche who appeared on your behalf at the plea, outlined a number of matters in mitigation.  First and foremost, is your plea of guilty.  A contested committal hearing took place in June 2017 and I delivered a ruling in relation to coincidence evidence in March this year.  A sentence indication application was then made on your behalf on 7 October 2021.  You entered a plea of guilty on the same day.

23Whilst it is not an early plea, your plea has significant utilitarian value, sparing the time and expense of a jury trial and saving witnesses from having to give evidence again.  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.[2]

[2]Worboyes v The Queen [2021] VSCA 169 at [39].

24Ms Kaddeche submitted the principles in Verdins are enlivened in this case.  
Ms Kaddeche submits that your diagnosis of schizophrenia, extant at the time of the offending, reduces your moral culpability and ought moderate general and specific deterrence.  Mr Perry who appeared on behalf of the Director of Public Prosecutions, did not take issue with that submission.  In my view, while drug use may have played some part at the time of the offending, it is clear that your symptoms that were identified during the record of interview, together with the opinions of Dr Zimmerman, confirm that at the time of the offending you were psychotic.  As such, in accordance with Verdins principles, the sentence I impose is able to be sensibly moderated.

25Delay is of relevance in this matter.  The offending occurred almost six years ago and whilst a significant part of that delay was attributable to you absconding, you have had this matter hanging over your head for a number of years.  Further, you have not reoffended in the interim period and have demonstrated a lengthy period of sustained abstinence from criminal offending and drug use. 

26Deterrence, both general and specific, remain relevant sentencing considerations, albeit moderated in this instance due your psychiatric condition.  As to your prospects of rehabilitation, you have demonstrated a long period of stability since this offending and are compliant with your medication regime.  However, as noted by Dr Zimmerman, your prospects of rehabilitation depend on your ability to remain well and drug free, which you are motivated to do. Currently I assess your prospects as very good.

27Ms Kaddeche submitted that a combination order pursuant to s 44 of the Sentencing Act1991 would meet all the relevant sentencing considerations in this instance.  Mr Perry submitted that a Community Correction Order was within range.  I had you assessed for such an order and you have been found suitable.  You were also assessed by the Mental Health Advice and Response Service.  Consistent with the community corrections assessment, the report also recommend that you would benefit from mental health treatment and that your current mental health will not impede your ability to engage in a community correction order with conditions.

Sentence

28Beau Matthew Dennis, on Charge 1, arson, you are convicted and sentenced to 202 days imprisonment which will be the prison component of the sentence pursuant to s 44 of the Sentencing Act1991. In addition to the prison component of the sentence which you have completed, you will be placed on a Community Correction Order with conviction for a period of two years.   In addition to the standard conditions, there will be conditions that you will undergo treatment and rehabilitation for drug use and mental health.  You will also be subject to supervision.

29Pursuant to s 18 of the Sentencing Act1991, I declare that 202 days be reckoned as a period of imprisonment already served under the sentence I have imposed.

30Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty, I would have sentenced to a period of 2 years imprisonment with a non-parole period of 15 months.

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