Director of Public Prosecutions v Dwyer (a pseudonym)

[2019] VCC 678

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISABELLE DWYER (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	15 May 2019
CASE MAY BE CITED AS:	DPP v Dwyer (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 678

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr S. Kennedy

HER HONOUR:

1Isabelle Martha Dwyer[1], you have pleaded guilty before me to four charges of making a threat to kill and one charge of causing an explosion likely to endanger life.  The facts underlying your offending are as follows.

[1] A pseudonym name

2The offending occurred in the context of a long-running dispute that you had with the first victim in this matter, Summer Rignall[2].  You and she had a friendship, but you had a falling out in the 12 months leading up to August 2017. 

[2] A pseudonym name

3On 13 August 2017, you sent a text message from your mobile phone to
Ms Rignall threatening to kill her.  These actions underlie Charge 1 on the indictment, making a threat to kill.

4Between 13 and 15 August 2017, you sent Ms Rignall a further eight text messages.  Early on the morning of 15 August 2017, you reported to police a criminal damage at your home in Newcombe, this apparently involving the breaking of a window.  You believed that Ms Rignall was responsible and made a formal statement to police.

5Police attended at your premises, at which time you received a phone call which you believed was from Ms Rignall, subsequently sending a series of text messages to her, including one message making a threat to kill - which underlies Charge 2 on the indictment, making a threat to kill.

6Ms Rignall was interviewed by police over the broken window but was released pending a summons.  You then took out a personal protection intervention order against Ms Rignall which was served on 17 August 2017.

7Between 15 August and 3 September 2017, you sent Ms Rignall 162 text messages of an abusive and threatening nature.  On 18 August 2017, you sent a message to one Lucas Scarf[3], the ex-partner of Ms Rignall, essentially abusing Ms Rignall and threatening to kill her.  And these actions underlie Charge 3 on the indictment, making a threat to kill.

[3] A pseudonym name

8On 28 August 2017, Ms Rignall obtained a personal protection order against you, which was served on you on 31 August 2017.

9In the early hours of 12 September 2017, you were asleep at home in your lounge room, and a friend Adam Edwards[4] was also present; the two of you having drunk alcohol from a four-pack of Canadian Club glass bottle stubbies.  At about 12.45 am, the two of you were awoken after your car, a Holden Commodore, was deliberately set alight in the driveway of your home.

[4] A pseudonym name

10You rang the Geelong Criminal Investigation Unit which was unattended at the time.  The phone message recorded by you and subsequently heard by Detective Senior Constable Jason Tom included the complaint about
Ms Rignall and a threat to kill her, and that message underlies Charge 4 on the indictment, making a threat to kill.

11Police attended your home at about 12.50 am, but you were abusive towards them and they were unable to investigate the suspiciously-lit fire after you told them to "fuck off" your property.  At 1.05 am, you left a further message on the Geelong CIU phone, telling police you were going to go and complain to the Ombudsman.

12At 1.35 am, you sent two text messages to Ms Rignall, which comprises a summary charge to which you pleaded guilty and which was dealt with in this plea hearing, pursuant to s.145 of the Criminal Procedure Act, that being a charge of contravening a final personal safety intervention order.

13At about 2 am, you took a 5 litre petrol can out of your rear shed and left your premises in your car, attending a nearby service station and placing 4.3 litres of unleaded petrol in the petrol can.  You then re-attended that same service station at 2.22 am and put a further .369 litres of unleaded petrol into your car.

14You returned home and took two small butane gas cylinders, taped them with duct tape to the 5-litre fuel can that you had filled with unleaded fuel and then placed this inside a shopping bag.  You made a second explosive device using an empty Canadian Club glass bottle containing petrol, which you taped to another butane cartridge, putting a piece of cloth into the glass bottle and a firelighter taped to the end of the cloth. 

15At approximately 4.10 am, you attended Ms Rignall's home where she was present with two friends, Georgia McCullagh[5] and Rebecca Strutt[6], victims two and three in relation to this course of offending.  There was a Holden Statesman outside Ms Rignall's address which was being used by Ms McCullagh and which belonged to another woman, Gayle Hunt.  A Honda belonging to Ms Strutt was parked in the driveway with the Holden.

[5] A pseudonym name

[6] A pseudonym name

16You used the 5 litre can and gas cylinders to make an explosion at the rear of the Honda, resulting in several explosions, and coming very close to igniting the next-door neighbour's property.  Those actions underlie Charge 5 on the indictment, causing an explosion likely to endanger life.

17The second device you made did not ignite and was seized and retained by police.  The fire which began on the Honda spread to the Holden, causing extensive damage to both vehicles.  Ultimately the Country Fire Authority attended and extinguished the fire before any houses were damaged.

18You then returned home and walked in the front door where Mr Edwards was still awake, saying, "It's done" before going to sleep.

19The next morning, at about 10.47, police attended your premises, arrested you, and took you to the Geelong police station.  You made admissions to breaching the intervention order by sending text messages to Ms Rignall, but denied any involvement in or knowledge of the fire at her premises, saying you had been asleep.

20Forensic examination of Ms Rignall's premises revealed evidence against you, including a DNA profile obtained from the unexploded Canadian Club device, which was estimated at being 20 billion times more likely to have originated from you than another random person in the Australian community.

21You have also pleaded guilty to the summary charge of unlicensed driving, which was also heard during this plea, in relation to your driving on that night when you did not hold a driver's licence.

22Ultimately this matter was resolved on the day of a contested committal hearing on 13 August 2018, and the matter proceeded by way of a straight hand-up brief.

23The maximum penalty for making a threat to kill is ten years' imprisonment. 
The maximum penalty for causing an explosion likely to endanger life is
15 years' imprisonment.  The maximum penalty for unlicensed driving is
25 penalty units or three months' imprisonment, and the maximum penalty for contravening a final personal safety intervention order is 240 penalty units, or two years, or both.

24The victim impact statement of Ms Rignall was read out in court.  In it, she stated that your actions had not only financially damaged her property, they had terrified her children who had become scared to come home unless they were convinced you were not going to come back to cause harm to either her or her property, as you had threatened in your text messages.

25She said as a result of the subsequent physical and mental difficulties she underwent, she was put off work, and this put her in financial trouble to the point of nearly losing her home, which also impacted on her children.  She concluded:

"All in all, Isabelle has mentally scarred me and my children's lives, as it will take a long time before we can recover from everything that has been taken from us."

26I now turn to your personal circumstances.  You are now 54 years of age and reside with your brother  on the outskirts of Ballarat.  I received a psychological report from Gina Cidoni which was dated 29 March 2019. 
In it, Ms Cidoni noted a difficult family history with long-running problems with your mother who suffered from mental health difficulties, specifically a bipolar condition and ultimately an addiction to alcohol.

27You were raised in Ballarat and went to school there, but left home at 15 to attend a hairdressing school in Melbourne, during which time you lived in a hostel being supported by your parents, and when you completed that course you returned to Ballarat.

28You reported to Ms Cidoni that in addition to the difficulties with your mother that I have outlined, she also had Munchausen syndrome and repeatedly took you to doctor's appointments, and was on occasion physically violent towards you.

29You then went on to establish a strong work history in hairdressing. 
You completed an apprenticeship at a hair salon in Ballarat, working there for two years before returning to train as a barber.  You then worked for a barbershop before purchasing your own business, which you ran for seven years before selling it.  You moved to Geelong and worked at a salon there for ten years.

30You were working at the time of this offending, but following your arrest and release on bail after 28 days in gaol, returned to Ballarat to live with your brother in the family home.  There, you and he have cared for your mother who suffers from dementia and who requires intensive support.  Indeed, matters have got to the point where she has in the last couple of weeks been moved to a care facility, and it is expected she does not have long to live.

31Your brother gave evidence on the plea of the assistance that you have given him in caring for your mother in the last 18 months, and he described a life which could fairly be described as "quiet".  He said he could not have managed his mother without you, but also that your only social activities have revolved around your two children and grandchildren who reside with your former husband a few miles away.

32In addition to the traumatic history that I have outlined, and which was described to me by your counsel, you underwent an amount of trauma in your early 20s when your then partner was knifed at a party and died in your arms.

33You married some years later and were married for a number of years, but at one point in the marriage, you and your husband and children moved into a house which had previously been owned by a man who owed large gambling debts, over which he committed suicide.  This was not known to those to whom he owed money.

34Enforcers, if you like, were sent around.  Your husband was mistaken for the man who owned the money, and shot.  This caused great disruption to your marriage, your husband lapsing into mental health difficulties, post-traumatic stress disorder, and you and he subsequently separating.

35You have been in trouble along the way, and you do have a history of involvement with the criminal law.  You were dealt with in 1987 for being armed with an offensive weapon and possessing cannabis.  You were dealt with in 1987 for unlawful possession, then burglary and theft.  And in 1988, it is clear, as your counsel informed you, you were beginning to involve yourself in drug use, starting with amphetamine.  You had been dealt with for the charge of using amphetamine in the Bendigo Magistrates' Court in May 1988.  In 1989, you were gaoled for 12 months for trafficking heroin and amphetamines, and possession of heroin.

36Thereafter, there was a ten-year gap.  It appears in that time that you rid yourself of your addiction, but you were dealt with in the late 1990s and early 2000s for minor offending including driving offending, behaving in an offensive manner in a public place, and handling stolen goods, all of which you were dealt with by way of a fine.

37The last time you appeared before this court was in 2008 when you were fined for using a carriage service to harass, so you had not offended for almost ten years at the time of this offending.

38Significantly, Ms Cidoni has diagnosed you as suffering a "distressed and disturbed" personality disorder.  Ms Cidoni said there were suggestions of decomposition into a psychotic depression in periods of intense stress. 
Ms Cidoni stated:

"To act in the way she did, she clearly built quite a story in her head where she believed she was unsupported by police and her actions against the perpetrator were justified." 

39Ms Cidoni found after conducting psychological testing that you suffer a psychotic depression that was a sub-type of a major depressive disorder that:

"occurs when severe depressive illness includes some form of psychosis, where there is a break with reality.  This could include paranoid delusions or strange and illogical ideas.  There is anger brought on by rumination."

40In other words, the diagnosis was that you have suffered from a major depressive disorder for some years which caused a decomposition around the time of your ongoing feud with Ms Rignall.

41Now, that in no way excuses what you did, Ms Dwyer, but it does explain it.  Ordinarily, I would not hesitate to gaol a person who acted as you did to a term of imprisonment.  This was extremely dangerous behaviour.  You could have gravely injured or even killed someone.  You put Ms Rignall's neighbours in danger. 

42I am satisfied that your ongoing major depressive disorder, which Ms Cidoni believes you have been suffering with for some years, had a part to play in this behaviour.  More importantly, since offending in this way, you have retired to live in a quiet fashion in a stable situation with your brother who runs his own engineering business from home and is a person with no prior history.

43In giving evidence to the court on plea, welcomingly, he described what he said was a reconciliation between yourself and your mother, and a resolution of the long-running issues you have had with her for most of your life.

44I acknowledge the way in which you have conducted yourself since being arrested for this offending, the stable and supportive environment in which you live, where you have good access to your former husband, with whom you remain on good terms, and your children and grandchildren.

45And because you suffer a particular serious depression which was activated to almost, it would seem, psychotic levels, and levels of paranoia as a result of this ongoing feud by Ms Rignall, I am satisfied that you do not present a danger to the community at large. 

46Ms Rignall, I note, and this is by no means an observation that I am making that in any way justifies your actions, but I note that Ms Rignall has an extensive criminal history and in late 2018 was gaoled for trafficking in methylamphetamine, and indeed I was informed continues to be held at Dame Phyllis Frost.

47I note that Ms Cidoni's opinion was that there would be concerns about your coping if I were to imprison you.  She said that imprisonment:

"could have a devastating effect upon her, in view of her fragility, and would cause a further deterioration of mental health."

48This is a matter that must be taken into account by a sentencing court, according to the observations of the Court of Appeal in Verdins, and I am satisfied that the last two limbs of the various matters laid out by Their Honours in that case have been met in your case.  So there is a combination of mitigating circumstances that have led me to conclude that placing you on a community corrections order is appropriate.

49I also note the oft-quoted observations of the Court of Appeal in Boulton's case that a community corrections order does not just serve the purpose of rehabilitation and support, but is also meant to serve as a deterrent against a person who is placed upon it and has punitive aspects to it.  You can be quite sure, Ms Dwyer, that if you do not abide by the conditions of the order, you will be in serious trouble.

50Before I can place you on this order, I must first outline the conditions to you and ask if you consent to be placed on that order.  Would you mind standing up, please, madam?  Thank you. 

51The conditions of the order are that first you must report to the Office of Corrections within two days of the making of this order; that is, by Friday of this week.  And that will be at the Ballarat Community Corrections Centre.

52Whilst you are on the order, which will last for a period of 18 months, you must not commit any offence punishable by imprisonment.  That does not mean you have to commit an offence and then be gaoled.  It means that if you commit any offence for which theoretically you could be gaoled, like knocking off a box of matches from Woolworths, that will breach the order.

53You may not leave Victoria without the permission of the Office of Corrections.  You must report any change of address or employment to the Community Corrections office within 48 hours of the making of that change.  You must not attend upon the Community Corrections office under the influence of drugs or alcohol.  You must report to and receive visits from Corrections officers, and you must obey all lawful directions of the Community Corrections office.

54I am going to order two special conditions.  Firstly, you are to be under supervision.  These have been recommended by the Community Corrections officer who found you suitable for placement on the order.  Secondly, you are to attend for assessment and treatment for mental health.  Are you prepared to enter into this order?

55OFFENDER:  Yes, Your Honour. 

56HER HONOUR:  Thank you. 

57MR MOORE:  Your Honour, could I just mention one matter?  It's of little practical effect, Your Honour, having regard to the sentence, but it's been put ‑ ‑ ‑ 

58HER HONOUR:  I am sorry.  Can I just interrupt?  In relation to Charge 5, I am going to attach 28 days' imprisonment to the order which I declare has already been served by way of pre-sentence detention, and I think it is appropriate to mark the general deterrent aspects and seriousness of this offending, but then released on the community corrections order.  That can be in relation - yes, just in relation ‑ ‑ ‑ 

59MR MOORE:  And declare that as already served?

60HER HONOUR:  Pardon?  I declare that 28 days has already been served by way of pre-sentence detention.  Sorry, I interrupted you, Mr Moore.

61MR MOORE:  Yes, Your Honour.  It's been pointed out to be my learned instructor, Ms Threlfall, that the offence of threat to kill is a serious offence as defined under the Sentencing Act.  That has little practical consequence here.

62HER HONOUR:  Ordinarily, I would have to declare it cumulative unless declared concurrent.

63MR MOORE:  That's right.  And safety of the community is the paramount sentencing consideration.  Your Honour has already found that she is no danger to the community.

64HER HONOUR:  Thank you, Mr Moore.  I have made special mention of the fact that when you look at the combination of how she has lived since, where she is living, which is well away as well from Ms Rignall, the singular nature of the offending, of the circumstances of this offending, the break in time and almost ten years of non-offending, and that she therefore does not ‑ ‑ ‑ 

65MR MOORE:  No, the Crown does not cavil with it at all.

66HER HONOUR:  No, but I am grateful to your instructor asking you to alert me to that, because it is something that that a sentencing court ‑ ‑ ‑ 

67MR MOORE:  Just as long as it's acknowledged.

68HER HONOUR:  ‑ ‑ ‑ in these circumstances, must address.  But for a combination of those circumstances, I do not find she is a danger to the community.

69MR MOORE:  Yes, Your Honour. 

70HER HONOUR:  If she had been rousing around and continuing to continue this war with Ms Rignall, Ms Dwyer, I can assure you, you would not have been placed on a community corrections order.

71And probably one of the most helpful things that happened to you in all of this was that one of your bail conditions were that you were not to remain in Geelong.  It has returned you to your family home, allowed you to reunite with a very supportive part of your life, and you have, of course, indicated to me your intention to continue living in the situation you are now reside in.  Are you prepared to enter to this order, thank you?

72OFFENDER:  Yes, I am, Your Honour. 

73HER HONOUR:  Thank you.  Just have a seat and we will prepare the paperwork.  Yes, I am going to sign a disposal order.

74Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 15 months and ordered that you serve a minimum term of six months.

75Thank you.  Is there anything other than the disposal order that I need to ‑ ‑ ‑

76MR MOORE:  No.

77HER HONOUR:  Thank you for your assistance in this matter, Mr Kennedy.

78MR KENNEDY:  Thank you, Your Honour. 

79HER HONOUR:  I am not ordering work hours.  I am just a bit concerned about Ms Dwyer's mental health, and it seems to me that that is the most protective factor that I can deal with, both for her and for the community. 

80MR MOORE:  If Your Honour pleases

81HER HONOUR:  Yes, thank you.  I think it is fairly important, Mr Kennedy, that Corrections have a copy of her psychological report.

82ASSOCIATE:  They've got it.  They've got it.

83HER HONOUR:  They have got it?  Just make sure it gets passed on to Ballarat.

84ASSOCIATE:  Yes. 

85HER HONOUR:  So they know.

86MR KENNEDY:  Thank you, Your Honour. 

87OFFENDER:  Thank you, Your Honour. 

88HER HONOUR:  Ms Dwyer, can I just say something to you?  I have placed you on supervision.  That means that you are going to have to attend fairly regularly on Corrections, all right?  Now, I can see from the report that I received from Ms Cidoni that you get anxious and you get worried, and you can work yourself up and think that things are being done to you, and that things that are happening that actually are not.  You can get yourself into quite a state.  Do you understand that? 

89Now, it is really important to remember that you must not do that, as best you can, with the staff at Corrections.  You are going to have to deal with them, all right?  It may be that you have a case manager you do not particularly like. 
I do not want you going home, brooding about it, and turning her into the Wicked Witch of the West, and giving yourself an excuse to not behave on the order.  You need to.

90OFFENDER:  They've always been good people.

91HER HONOUR:  Good.  All right.  Yes, I see you have got some experience with them.  But you understand what I am saying?

92OFFENDER:  Yes, I do.

93HER HONOUR:  Particularly in relation to this offending.  If you come back before me on a breach of any seriousness, you will not give me a lot of choice about what to do on resentencing.  So try and bear that in mind, all right?

94OFFENDER:  I won't be back.

95HER HONOUR:  Thank you very much. 

96OFFENDER:  Thank you. 

97HER HONOUR:  Thank you. 

98HER HONOUR:  Thank you.  You are excused.  Thank you, Mr Kennedy.

99MR KENNEDY:  Thank you, Your Honour. 

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