Director of Public Prosecutions v Dent
[2018] VCC 756
•24 May 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02566
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH JOHN DENT |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat (sitting in Melbourne) | |
DATE OF PLEA HEARING: | 15 May 2018 | |
DATE OF SENTENCE: | 24 May 2018 | |
CASE MAY BE CITED AS: | DPP v Dent | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 756 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Mr S. Moglia | Magazis & Associates |
HER HONOUR:
1 Kenneth Dent, you have pleaded guilty on Indictment H12483376 to one charge of making a threat to inflict serious injury, one charge of common law assault, one of make a threat to kill, one of criminal damage, one of threatening to assault an emergency worker (police officer) on duty, two charges of possession of a drug of dependence and one charge of arson.
2 The maximum penalties applicable to the offences are, make threat to inflict serious injury, 5 years’ imprisonment, common law assault, 5 years’ imprisonment, threat to kill 10 years’ imprisonment, criminal damage, 10 years’ imprisonment, threatening to assault emergency worker, 5 years’ imprisonment, possession of a drug of dependence (charge 6 propoxyphene), 12 months’ imprisonment (charge 7 cannabis), 5 penalty units and arson, 15 years’ imprisonment.
3 You have also agreed to related summary offences being dealt with by this Court and have pleaded guilty to Summary Charge 7, resist police, the maximum penalty applicable being 6 months’ imprisonment and Summary Charge 16, committing an indictable offence whilst on bail (arson), the maximum penalty applicable being 3 months’ imprisonment.
4 Your crimes arise out of events which took place on 3 September 2017. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.
5 It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. Your behaviour was obviously quite unacceptable. You also have an extensive criminal history which includes criminal damage, assault and resist police, to which I shall shortly refer.
6 I turn to a brief summary of your offending.
7 You were 49 at the time of your offending and 49 at sentence. At the time of your offending you were living in Department of Health and Human Services (DHHS) housing at 6 Grevillea Court, Ararat.
8 Living with you was the victim, Alison Grimes. Grimes was a friend of yours and would stay with you occasionally.
9 On 3 September 2017 at approximately 5.15 am, Grimes was asleep in the front bedroom of the house at 6 Grevillea Court when she woke to hear you returning to the home. You were yelling at her and attempting to enter the house through the bathroom window. Eventually you were able to gain entry to the house through the back door. Also present in the house was Anthony Bradshaw.
10 Once inside the house, you continued to yell at Grimes. You and Bradshaw were screaming at her, saying that you were going to beat her up. Grimes felt scared.
11 You walked to the bedroom, where Grimes was, and said “I’m going to kill you.” You were also yelling to Bradshaw “Ants do it, smash her now, just do it, I am the boss around here.” Grimes remained in the bedroom, packing her belongings (Charge 1).
12 Grimes went to the kitchen and sat on the couch. You sat beside her, then stood up and hit her with a single, closed right fist on the front of her mouth, which caused her pain. She walked back to the bedroom and stayed there (Charge 2).
13 Approximately ten minutes later, you exited the house and walked to the fence shared with a neighbouring property at 8 Grevillea Court. Jayde Weir lived at that property with her 1 year old child.
14 Ms Weir was standing inside the kitchen, looking out the window. You looked at her through the window and said “If you call the cops, I’ll get the bikies onto you”. You then said, “They’re on their way. I’ll put a bullet in your head.” You also said that you had an RPG and would blow yourself and Ms Weir up (Charge 3). Ms Weir called Emergency Services.
15 You walked to another neighbouring property at 4 Grevillea Court, where Benjamin Soule and his mother, Janet McKenna lived in DHHS housing. You banged on the front door of the house. Soule was woken by the banging and walked to the front door. As he walked to the door, you hit a glass window next to the door, shattering the glass and making a fist-sized hole. Soule yelled out “Who’s there?” You replied it was you and said “That slut has locked me out of my house with my keys and my money.” You then walked away (Charge 4).
16 At 5.30 am, police attended 6 Grevillea Court and saw you standing in the shadows next to the house. Sergeant Young got out of the police vehicle. You walked towards that vehicle holding a 20-centimetre-long hunting knife with a 9-centimetre-long blade. Young and Senior Constable Laugesen directed you to drop the knife. You replied, “If you spray me I’ll throw the knife at you.” Young directed that you drop the knife, however, you continued to walk towards him.
17 Young sprayed his OC spray, however it did not reach you. You threw the knife at Young, which missed him by about 60 centimetres. It hit the divisional van and became lodged in the door sill (Charge 5).
18 You ran towards the house and Young gave chase. As you entered the front door of the house, Young pushed you to the ground. Whilst on the ground, you took hold of a metal fitness equipment instrument with two 2.5 kilogram weights attached. You crawled along the floor, however, Young deployed his OC spray which had an immediate effect. You were arrested and conveyed to Ararat Police Station. When searched a number of tablets were located on you, and some green vegetable matter (Charges 6 and 7, possess drugs of dependence).
19 You were interviewed by police, charged and released at 1.00 pm to appear at Ararat Magistrate’s Court on 16 October 2017. A Personal Protection Order Application was executed in respect of Grimes.
20 Following your release, you returned to Grevillea Court. While there you consumed approximately six glasses of wine and took some sleeping pills. You then used a lighter to set fire to two arm chairs in the dining room area of the house. You went to sleep, waking up about an hour later, due to the smoke caused by the fire in the dining room. At approximately 10.00 pm you left the house (Charge 8).
21 The fire resulted in the house being extensively damaged, at approximately $127,000 value. (Summary Charge 16, commit indictable offence, arson, while on bail).
22 On 4 September 2017, you were arrested and participated in a further record of interview.
· Regarding the initial offending, when interviewed, you stated you needed marijuana for your pain, that:
“… she told me she hated me guts but apparently she loves me now she reckons. I only give her a little touch- little smack in the mouth. Didn’t punch with this thing or I would’ve fuckin’ broke her fuckin’ head even though she done a good job on me. First I was really fucked up. She’s really fried.”
· You said that “She went into her room and cried and carried on. “I said, ‘I’m gunna chop your fuckin’ head off if you don’t come good.’” You said you asked Bradshaw to do it (chop Grimes' head off for you). You told Bradshaw “to punch ‘em out, that’s all”.
·You then said “I smashed the other- the other fuckin’ house fuckin’ window easy as shit.” You said you had smoked a couple of bongs and taken Olanzapine, 20.
·Regarding what you said to Weir, “I told em not to or I was gunna jump the fence. I said, ‘look, just go inside and relax…’ “…be over in a minute. Don’t say nothing.”
·You said you threw the knife on the ground and did not throw it at the “copper” and further said, “Well, pretty sharp by the looks of it, it hit the ground and bounced into the cop car pretty easy.”
·Regarding your subsequent offending you said, “Just burn all the memories and everything”.
23 Your offending resolved at a committal mention on 21 December 2017. The prosecution concedes and I accept, your pleas of guilty were entered at the earliest opportunity. You are entitled to have that fact taken into account in your favour and I do so. The community has by your pleas of guilty been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. I accept your pleas of guilty were entered at the earliest opportunity. I am prepared to accept your pleas of guilty are indicative of some remorse by you but are concerned about the extent of it particularly in light of your extensive criminal history - I note no prior offences of arson.
24
As at your plea hearing, you had spent 253 days in custody by way of
pre-sentence detention (up to and including 14 May 2018).
25 You have admitted an extensive criminal history commencing in 1999. Some of your offending can be described as dishonesty-type offences, theft, burglaries and obtain property by deception and the like. There are also a number of other offences, including assault by kicking, assault police (27 September 1993), recklessly cause injury (27 April 1998), criminal damage, intentionally cause injury and hinder police (29 September 2000).
26 On 17 April 2001, intentionally cause injury, resist police, wilful damage to property, 27 April 2001, resist police and assault police, amongst other charges, 9 August 2004, use threatening words in a public place, unlawful assault and assault police; 29 October, 2017, criminal damage; 18 August 2008, possess cannabis, 22 June 2009, possess cannabis, 30 January 2012, possess cannabis, resist police, 17 December 2012, possess cannabis, 20 May 2013, possess cannabis and 14 August 2015, possess/use/carry prohibited weapon without exemption, to name but a few. You have, over the years, been sentenced to a number of sentencing dispositions, including suspended sentences, and Community Corrections Orders, which you have breached, although I note your most recent Community Corrections Order was not breached.
27 Mr Moglia, who appeared on your behalf, provided a written outline of submissions for your plea hearing and addressed those during the course of it.
28 He referred to the relevant chronology of your pleas of guilty. That your offending was committed on 3 September 2017, then at a committal mention a guilty plea was entered on 21 December 2017. Initially your plea hearing was listed for 29 January 2018, although it was ultimately heard on 15 May 2018 (due to circuit listing). I accept, as I have said, and the prosecution concedes, your pleas of guilty were entered at the earliest opportunity.
29 Turning to your offending history, Mr Moglia referred to your 20 year history of mental and physical illness and that at the time you lit the fire and remained in the house, you “wanted it to be over”.
30 Mr Moglia submitted that the arson offence was the most serious of the offences before the Court, however urged that it had not occurred in aggravated circumstances such as the result of revenge, fraud or to harm others. That is so.
31 Turning to the first set of offending involving assault, threat and damage offences, he conceded they were inexcusable, however, urged the consequences of them were ‘relatively minor’.
32 Mr Moglia referred to your interview with police at which time you also admitted your offending. As I have said, I accept that your pleas of guilty were entered at the earliest opportunity, saving witnesses the need to give evidence upon your trial and such is indicative of not only remorse but your desire to facilitate justice, and is of utilitarian benefit. I also note the early stage at which you indicated your intention to plead guilty preceded by admissions to police in the record of interview.
33 Mr Moglia set out details of your personal circumstances and history much of which were contained in the reports to which I shall shortly refer and, therefore, I will not repeat his submissions in that regard. Mr Moglia highlighted a number of matters, urging you had not had an easy life, in particular since your partner died in 2014, after which you went further downhill.
34 He described you as a ‘struggler’ and that particularly after her death “things got the better of you”.
35 He urged there was a basis for your despair in lighting the fire in your own home. That you indicated to police this was an attempt on your own life. No one else was home at the time.
36 Following being bailed by police on the initial set of offending, you said you returned home and found the property in disarray.
37 Regarding the threats made to your neighbours, Mr Moglia conceded they were angry words and would have been troubling to the neighbours. Police attendance and your production of the knife he also agreed was concerning. The police, he submitted, responded appropriately to the danger they perceived from you in employing OC spray.
38 Mr Moglia conceded a term of imprisonment, at least in relation to the arson offence, would be warranted.
39 Looking at the seriousness of arson offences, he referred me to the Sentencing Manual (paragraph 32.15.11.1), referrable to a number of occasions where the Victorian Court of Appeal has dealt with arson offences from 2013 to the present. I have read that summary.
40 Turning to the Court of Appeal summaries to which I was referred. It is difficult comparing cases factually as facts vary enormously case to case as do all matters personal to an offender and in mitigation of sentence. Ultimately I must determine the appropriate sentence in your case taking into account all sentencing considerations.
41 Mr Moglia urged, and I accept, there are a number of the aggravating features that would place an arson offence in the upper category that were absent in your offending.
42 It is difficult, however, as I say, comparing cases factually. Of course there are varying degrees of gravity of the offence of arson and I understand and accept yours is not in the ‘upper category’.
43 Mr Moglia submitted that in custody you had completed a number of courses and you had good intentions regarding undergoing future courses and counselling if offered to you. Before me were a number of certificates. A Release Related Harm Reduction Certificate, a Managing Worry Program Certificate, a Managing Loss Program Certificate, Completion of Use Hygienic Practices for Food Safety, Participate in Workplace Safety Arrangements, Managing Sleep Certificate, and a Managing Emotions Certificate. You have used your time productively in custody.
44 Mr Moglia referred to the significant number of medications you were prescribed as at 6 February 2018.
45 You would need help, Mr Moglia submitted, whether you were placed on a Community Corrections Order, which was his primary sentencing submission, or if sentenced to a term of imprisonment with a non-parole period. You would ultimately benefit from transition assistance when returning to the community.
46 Whilst not relying upon Verdins principles relevant to your time in custody, I accept that as a result of your medical and mental health issues including your medications, some day to day things in custody would be more difficult for you than for more able bodied and mentally capable prisoners. I also note you have a very large hernia and an earlier operation resulted in the loss of a bowel. To a degree you will be more vulnerable in custody as you will not be so ‘carefree’ about your health.
47 Such, in my opinion, can be taken into account consistent, not with Verdins principles, but rather with general sentencing principles. Mr Doyle, who appeared on behalf of the prosecution, conceded I could take your medical and mental health into consideration consistent with general sentencing principles and I have.
48 Mr Moglia submitted that you had reasonable prospects for rehabilitation, although I have some concerns with that description, given in particular concerns most recently raised in the reports regarding your risk of future offending should you in particular return to the use of illicit substances or alcohol. At best your prospects of rehabilitation are guarded. I must, however, when sentencing you seek to maximise your chances of rehabilitation as they may be.
49 You also have an extensive criminal record including offending for similar type of offending, albeit not previous offending involving the offence of arson.
50 Mr Doyle, who appeared on behalf of the prosecution, regarding your rehabilitation prospects referred to episodes in your past history when you had ‘fired up’ when affected by substances from about 1993.
51 Mr Doyle referred to your prior criminal history also having involved offences of criminal damage, recklessly cause injury, intentionally cause injury, resist/assault police (i.e. offending of a similar type to that before me).
52 You had a pattern of behaving in an aggressive fashion from a relatively early stage, he submitted. Mr Doyle submitted that all those things impacted upon your successful rehabilitation prospects. I agree.
53 Mr Doyle referred me to the decision of DPP v Derby[1] (paragraph 23) referrable to arson. One consideration is the value of damage caused and the value here was approximately $127,000.
[1] [2007] VSCA 92
54 Regarding the prosecution submission on sentence, the prosecution was not submitting that to impose a Community Corrections Order with a term of imprisonment would be outside the range of appropriate dispositions. Mr Doyle, however, submitted that the most appropriate sentence for your offending was a head sentence with a non-parole period, given this offending against an extensive prior criminal history.
55 Mr Doyle observed that whilst you had relatively recently completed a Community Corrections Order, prior to that there have been a number of breaches of Court orders.
56 The prosecution submitted that the 253 days on remand as at your plea hearing would not be an appropriate sentence for all of your offending.
57 Before me was a report from Dr Best, Forensic Psychiatrist, dated 12 January 2018. Dr Best met with you on 31 December 2017 for an 80 minute contact visit at the Metropolitan Remand Centre.
58 You stated you were on a disability support pension on the grounds of mental and physical illness. Prior to your remand in September 2017, you had been living independently for six years in a Ministry of Housing property.
59 You reported a 20 year history of mental illness and having been a patient of Ballarat Mental Health Services.
60 You had a history of admissions to psychiatric units in the past five years, requiring involuntary treatment under the Mental Health Act 2014 (Vic). Further, you had a long history of illicit substance use (ice, cannabis and the abuse of prescription medication).
61 Turning to your past psychiatric history, you said you had had mental health difficulties for 20 or 30 years and had been on prescribed medication “for years”.
62 You reported some years ago having two involuntary admissions to the inpatient unit at Ballarat Mental Health Services, being discharged to the community and then seeing mental health clinicians at Ararat.
63 Five years ago you were discharged from their care and your general practitioner took over. You reported a diagnosis of bipolar effective disorder and schizophrenia and that you took antipsychotic medication regularly. You were seeing a psychiatrist at Metropolitan Remand Centre. A list of your current medications was contained within her report (page 4).
64 You had previously been diagnosed with Type 2 Diabetes in 2011. Further, you reported a very large abdominal hernia after emergency abdominal surgery in 2011. You wear an abdominal band to hold the hernia in place. A number of other previous medical conditions were noted, specifically, surgery to your right shoulder 20 years ago, surgery for ruptured anterior cruciate ligament when playing football, and having been in a motor vehicle collision in 1995.
65 Turning to your drug and alcohol history, you reported cannabis use from age 20, escalating to daily use.
66 You also reported you used ice a fair bit when you were locked up and had never touched it before Ms Grimes came. You reported two years ago being introduced to injecting ice by Ms Grimes, using up to 1 point a day in the six to 12 months prior to your remand.
67 You also reported drinking alcohol from when you were 14 years of age. Prior to remand, you were drinking ‘quite a fair bit of wine’ on a daily basis.
68 Turning to your personal circumstances and history, you were born in Ararat, the only son in a sibship of six children. You described your home life as “pretty good” and of having enjoyed schooling, had stable friendships and performed reasonably well academically. You left school in Year 10 and completed two years of a gardening apprenticeship. You then worked on a chicken farm for 12 months, then at an abattoir at Ararat and Bordertown for 13 years.
69 When you were 25 years of age, you began a 10 year de facto relationship from which there are three daughters. That relationship ended when you were 35 after you were jailed and your then partner began another relationship.
70 You reported you had great success playing football for various football clubs in the local area, reporting some injuries on the sports field.
71 You reported in 2011 being involved in a house fire, saying:
"Someone bombed me home when me and Ann Marie were in it, and I managed to save me and Anne-Marie, I put Anne Marie in the shower and called an ambulance.”
72 You said you were hospitalised for 15 months as a result of suffering significant smoke inhalation.
73 You reported undergoing rehabilitation to re-learn how to walk. During that time you developed a dependence on pain relief medication.
74 You had not worked since that house fire.
75 In 2014 Ann Marie died from a drug overdose and medical condition.
76 You reported meeting Ms Grimes after Ann Marie died, and that you were initially friends. That after Ms Grimes was released from a period of incarceration and was homeless, you invited her to live with you.
77 Regarding your current offending, you said that at the time of it, you had missed your usual medication for a few days and had come home early in the morning to get your medication.
78 You said you were hearing voices as described within the report (page 7).
79 You reported recalling police arriving, being sprayed with capsicum spray and being taken to the police station for questioning.
80 Following being bailed and returning home, you said, “I got home and the window was broken when I got home and things were gone, I think she stole them.” You entered the house, drank more wine and smoked cannabis. A friend arrived who told you your friendship with Alison was over. You then reported that you:
"Decided to inject meself in the heart with Ice and I decided it was all over...but it bent the needle... I went to sleep, woke up with the place on fire, there was smoke everywhere and I got out... I lit the fire before I went to bed, I wanted it to be over, I wasn't thinking right".
81 Turning to Dr Best’s opinion and recommendations, your offending history showed requests for mental health assessments from 2007 and onwards. You had reported longstanding mental health difficulties for the past 20 to 30 years. You are currently taking Olanzapine antipsychotic and sodium valproate, a mood stabiliser.
82 You had over the years developed a dependence on pain medication prescribed after the house fire and further required surgery for a very large abdominal hernia. You are currently on Methadone secondary to your dependence on your pain medication.
83 In the opinion of Dr Best, your history suggested a relationship between mental illness, cognitive difficulties, illicit substance abuse and propensity for violence and violent offending when drug-affected.
84 At the time of assessment, however, there was no evidence of any mood disorder. Nor were you in need of any immediate psychiatric treatment, however, in her opinion you should continue with your current medication.
85 While not formally concluding, Dr Best wondered whether your history of head injury, hypoxia and chronic illicit drug use had led to cognitive difficulties and/or decline which may have impacted on your day to day intellectual functioning.
86 Ongoing illicit substance use was likely to further compromise your intellectual functioning. She recommended neuropsychological assessment to assist to delineate your strengths and weaknesses. It was possible, in her opinion, you had an acquired brain injury with a below average IQ of borderline intellectual functioning.
87 You also identified a history of “emotional difficulties” making you feel suicidal at times. You struggled to make good decisions, remember rules, resist temptations, manage your emotions and think flexibly. Further, you have limited insight into drug and alcohol use. Those difficulties may, she thought, be related to an acquired brain injury.
88 Given your long history of cannabis use and alcohol misuse, you met the criteria for cannabis use disorder, alcohol use disorder and methamphetamine use disorder. In her opinion, you would benefit from a program of drug rehabilitation tailored to your level of intellectual functioning.
89 Your absence from illicit substances may reduce your risk of re-offending in the future.
90 Dr Best concluded, giving your difficulties it was possible your offending behaviours in the past stemmed from an acquired brain injury as well as illicit drug use.
91 Dr Best noted that she did not have any access to mental health records when making her assessment and suggested a further history be obtained from the various sources (paragraph 10).
92 There was a report from Arbias prepared by Dr Sara Fratti, Neuropsychologist, dated 22 March 2018, prepared following receipt of that report of Dr Best as a result of matters raised within that report.
93 I turn to Dr Fratti’s report. A number of documents were available to Dr Fratti as contained within her report (page 2) which included a number of medical and hospital records.
94 Details were provided by her of your background and history, and I will not again repeat those details.
95 You denied any learning or developmental difficulties, that you completed Year 10, describing yourself as a ‘pretty good’ student, especially at maths and English. You said you ‘excelled’ at contact sports and had been a professional football player ‘for some time’.
96 Dr Fratti noted you have been in receipt of a disability support pension as a result of mental and physical illness since 2011 after being injured in a house fire.
97 Brief reference was made by Dr Fratti to your forensic history, extending back to 1987 with numerous charges relating to theft, assault, resist police, drunken behaviour, criminal damage, intentionally cause injury, multiple breaches of intervention orders and use and possession of illicit substances.
98 Regarding your present incarceration, you referred to “it was the ice”. You had no remorse for your actions, placing full responsibility on Ms Grimes.
99 Since you had been in custody, you had attended anger management programs and activity programs which you felt were beneficial.
100 Turning to your substance abuse history, you confirmed with Dr Fratti your history of cannabis, speed, ice and also alcohol consumption. You confirmed using approximately 1 point of ice per day until your recent remand.
101 Turning to your medical history, Dr Fratti noted you had complex medical and psychiatric histories.
102 Regarding the motor vehicle collision when you were 26, although the records indicated somewhat older, you denied losing consciousness. You were admitted to Ararat Hospital and tested negative for alcohol and other drugs. At the time of the collision there were no abnormalities detected on brain CT scan. However, during admission your mental state deteriorated and you underwent a psychiatric review due to acute psychotic symptoms and auditory hallucinations.
103 Hospital notes indicated, in addition to the motor vehicle collision, at least five additional admissions between 1998 and 2014 due to acute anxiety, alcohol withdrawal symptoms, confusion and chronic delirium. In 2011 the results of a brain CT scan performed indicated poor compliance with antipsychotic medication but no acute intracranial pathology.
104 You reported being involved in a house fire in 2011 and suffering hypoxia. Medical records indicated that incident occurred in February 2010, following which you spent approximately five weeks in hospital due to complications secondary to bowel perforation. You required multiples surgeries. You were referred to Caulfield Rehabilitation for post-operative monitoring, although details of that were not available to Dr Fratti.
105 You said you developed dependence to opiate pain killers to cope with pain since that admission.
106 Turning to your psychiatric history, you reported engagement with mental health services for over 20 years as a result of diagnosis of depression, bipolar disorder and schizophrenia. The death of your previous partner, Ann Marie, had led to an increase in your alcohol and substance consumption and further deterioration of your mental health.
107 Testing revealed your overall intellectual ability fell between the low average to average range.
108 Dr Fratti concluded, based on neuropsychological testing, your profile was not consistent with acquired brain injury.
109 A CT scan of your brain in 2011 detected generalised atrophy related to heavy alcohol consumption. You did not, however, show any deficits that could be suggestive of a potential alcohol-related brain injury. On the contrary, your memory was intact.
110 It was possible your ability to abstain from alcohol and drugs in prison contributed to an overall improvement in your cognition. However, there was significant risk of cognitive deterioration should you return to heavy drinking or substance use in the future.
111 Regarding whether any of your cognitive impairments impacted on your offending behaviour, Dr Fratti concluded that overall the results of your current neuropsychological assessment did not indicate the presence of cognitive impairments that could have impacted on your offending behaviour.
112 It appeared to Dr Fratti your current offending occurred in the context of ongoing alcohol and substance misuse. Your judgment, therefore, may have been clouded by the acute effects of alcohol and substance use.
113 Turning to your risk of reoffending, Dr Fratti noted, as do I, your forensic history is extensive. Such she considered was a significant risk factor for recidivism. A further risk factor was your substance misuse and the connections generally seen between such use and criminal behaviour.
114 Dr Fratti observed that your offending behaviour commenced, as I also note, in the 1980s, years before your episode of “inhalation burns and hypercarbia” and often in the context of ongoing substance use and poorly managed mental health, eg: poor compliance with medications.
115 Further, Dr Fratti noted that at the time of your offending, you were using ice and cannabis on a regular basis.
116 In the opinion of Dr Fratti your risk of re-offending would be minimised if you remained abstinent from alcohol and substances and received appropriate mental health treatment.
117 Dr Fratti concluded her report with a number of recommendations, noting your ability to rehabilitate would depend upon your willingness to abstain from substances and engage with mental health services. Your relapse into substances would increase your risk of recidivism and deterioration of mental health and development of an acquired brain injury.
118 Dr Fratti concluded that from a cognitive perspective you showed good cognitive skills with a capacity to learn and retain new information or new sets of skills.
119 In my opinion on the material currently before me, the principles in R v Verdins & Ors[2] are not enlivened when sentencing you. Mr Moglia, who appeared on your behalf, conceded Verdins principles did not apply, and such, on the material before me was an appropriate concession.
[2] (2007) 16 VR 269
120 I have concerns regarding your rehabilitation prospects. They are at best ‘guarded’, although I am comforted by your recent attempts to undertake courses, and in sentencing you, as I have said, I must seek to maximise your prospects of rehabilitation.
121 As well as matters personal to you to which I have referred including your prospects of rehabilitation as I find them to be, I must also take into account general deterrence, which is of considerable importance in a case such as this.
122 Also the need for specific deterrence when sentencing you in particular in relation to your extensive criminal history for offences of similar type, albeit not arson, but violent type offending and damage type offending.
123 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
124 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose just punishment.
125 When sentencing you I take into account principles of proportionality and totality. In my opinion, being mindful as I am of decisions of Boulton & Ors[3] that have discussed community correction orders including that they have both a rehabilitative and a punitive aspect to it, in my opinion, to impose a community correction order would not adequately reflect all sentencing considerations in this case.
[3](2014) 46 VR 308
126 As I say, when sentencing I take into account principles of proportionality and totality, and I sentence you as follows.
127 On Charge 1, you are convicted and sentenced to 8 months’ imprisonment.
128 On Charge 2, you are convicted and sentenced to 10 months’ imprisonment.
129 On Charge 3, you are convicted and sentenced to 10 months’ imprisonment.
130 On Charge 4, you are convicted and sentenced to 10 months’ imprisonment.
131 On Charge 5, you are convicted and sentenced to 6 months’ imprisonment.
132 On Charge 6, you are convicted and sentenced to 2 months’ imprisonment.
133 On Charge 7, you are convicted and fined $150.
134 On Charge 8, you are convicted and sentenced to 2 years’ imprisonment. That is the arson charge.
135 On summary Charge 7, you are convicted and sentenced to 1 month’s imprisonment.
136 On summary Charge 16, you are convicted and sentenced to 14 days’ imprisonment.
137 I order the following in relation to cumulation and concurrency.
138 Charge 8, arson, is the base sentence and I direct the following in relation to cumulation.
139 I direct that 4 months of Charge 1 be served cumulatively upon Charge 8.
140 I direct that 5 months of Charge 2 be served cumulatively upon Charge 8.
141 I direct that 5 months of Charge 3 be served cumulatively upon Charge 8.
142 I direct that 4 months of Charge 4 be served cumulatively upon Charge 8.
143 I direct that 2 months of Charge 5 be served cumulatively upon Charge 8.
144 I direct that 14 days of Charge 6 be served cumulatively upon Charge 8.
145 I direct that 14 days of summary Charge 7 be served cumulatively upon Charge 8.
146 I direct that 7 days of summary Charge 16 be served cumulatively upon Charge 8.
147 For clarity, the orders for cumulation are upon each other and upon the base sentence.
148 That results in a total effective sentence of 3 years 8 months and 35 days, and I direct you serve a period of 2 years and 6 months before you are eligible for parole.
149 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict - in other words, if you had pleaded guilty to all of these offences and been found guilty of them I would have sentenced you to a term of imprisonment of 6 years with a non-parole period of 4 years.
150 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 262 days in custody (up to and including yesterday, 23 May 2018) by way of pre‑sentence detention and I direct that that be entered into the records of the Court.
151 The prosecution made application for a disposal order and this was not opposed by counsel on your behalf and I make the order in the terms sought.
152 For completeness only, I note the prosecution were not making application pursuant to s.464ZF Crimes Act 1958, and I do not think there were any other orders.
153 Now let us have a go at the maths. I am not asking if you agree with the sentence, I am just asking if you have got all the figures and if they all add up.
154 MR SHARPLEY: Yes, Your Honour, I have 45 months and five days.
155 HER HONOUR: Forty-five months and 5 days.
156 MR SHARPLEY: We have two years plus 20 months plus 35 days, according to my - - -
157 HER HONOUR: I have got a total head of 3 years 8 months and 35 days.
158 MR SHARPLEY: Yes, that's the same thing, Your Honour, yes.
159 HER HONOUR: Well, that's good.
160 MR SHARPLEY: That's what I've got.
161 HER HONOUR: We're in heated agreement.
162 MR SHARPLEY: Heated agreement.
163 HER HONOUR: I'm not asking you if you agree with the figures, I just want to know they all add up.
164 MR SHARPLEY: They do add up, Your Honour.
165 MR McKENNA: Yes, Your Honour.
166 HER HONOUR: You agree. All right. So that is 2 years 6 months, as I have said.
167 Now what do we say - non-parole period. What do we say about the PSD; is that right?
168 MR McKENNA: It's agreed on 262, Your Honour.
169 HER HONOUR: All right. Up to and including yesterday.
170 MR SHARPLEY: Yes, Your Honour.
171 HIS HONOUR: All right, I have ticked that, and that will be entered into the records of the court, and I think I have covered everything else. Is there anything further in this matter?
172 MR SHARPLEY: No, Your Honour.
173 MR McKENNA: No, Your Honour.
174 HER HONOUR: All right. Thank you both very much. Thanks, Mr Dent, you will have to leave now, if you wouldn't mind.
175 All right, thank you.
176 MR McKENNA: If Your Honour please.
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