Director of Public Prosecutions v Edwards
[2017] VCC 1219
•25 August 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CR-16-02206
Indictment No: G10877056
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IVAN RUSSELL EDWARDS |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 23 August 2017 | |
DATE OF SENTENCE: | 25 August 2017 | |
CASE MAY BE CITED AS: | DPP v Edwards | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1219 | |
REASONS FOR SENTENCE
---
Subject:1 charge of Arson – elderly offender with multiple serious medical conditions – probable impact on cognitive capacity at time of offence – CCO of 3 years.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Flynn | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M Brugman | Michael Brugman, Barristers & Solicitors |
HER HONOUR:
1 Ivan Russell Edwards, you have pleaded guilty to one charge of arson, which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (“Exhibit A”). At 1.52am on 28 March 2016, you attended the automatic teller machine at a branch of the ANZ bank in Pakington Street, Geelong West. You attempted to withdraw funds, unsuccessfully, being advised that there were insufficient funds in your account. You apparently contacted an ANZ customer service hotline, but were not satisfied with the explanation as to why your Disability Support Pension had not been paid into your account. You then attended Geelong Police Station at approximately 2.00am and asked police if they could contact the ANZ bank on your behalf. You were told that it was not a police matter and to contact the ANZ bank when it next opened. You left the police station in an agitated manner and, at approximately 2.37 am, re-attended the automatic teller machine of the ANZ branch in Pakington Street and began smashing the machine with a jemmy bar. You then poured fuel from a can onto the machine and threw a piece of paper, which you had lit, at it. This caused the machine to immediately ignite and begin burning. Your offending was captured on CCTV footage, which showed your actions clearly. In the footage, you were wearing the same clothing which you were wearing when police ultimately arrested you at your home in Norlane on 30 March 2016.
3 The Country Fire Authority attended the scene and extinguished the fire, but the automatic teller machine was destroyed, as was part of the bank building in which it was housed. The total damage caused was $194,418.70. The bank branch was closed from 2 April 2016 until 9 May 2016, during which time restoration of the damage occurred.
4 You are presently aged 73 years, having been born on 22 January 1944.
5 You have admitted a criminal history, which goes back some years, for a variety of offences some of which are many decades ago. There is no prior offending of a similar nature to the charge of arson for which I must sentence you.
6 In a plea on your behalf, Mr Brugman told the Court that, at the time of offending, you were leading a sad and lonely existence. You are a widower, who lives alone and suffer multiple serious health issues which had resulted in regular admissions to hospital. Indeed, you had been hospitalised at the Geelong University Hospital very shortly prior to the offending. This admission was for acute urinary retention, and you had discharged yourself, against medical advice, at some stage on the evening of 27 March 2016, that is, the evening prior to the commission of the offence in the early hours of 28 March 2016.
7 At the plea hearing, a report dated 16 July 2017 from a neuropsychologist, Mr Jackson, was tendered as Exhibit 6. He opines that it was highly likely that you were suffering seriously impaired cognition due to your acute health problems of urinary tract infection and renal failure for which you had been hospitalised shortly prior to the commission of the offence. He states that these conditions are known to adversely affect cognitive ability. This opinion was endorsed in oral evidence given by your current case manager, Mr Ken Vincent, registered nurse and community clinician from the Hospital Admission Risk Program (HARP).
8 Mr Vincent also authored two letters dated 21 December 2016 and 22 August 2017. (Exhibit “1”) These supplemented Mr Vincent’s oral evidence which was to the effect that he had been your case manager since September of last year, having taken over from your former case manager at HARP, Mr McKinnon. He stated that you had become involved with HARP, which is designed to prevent people with known significant health problems from frequently presenting at Emergency Departments and being admitted to hospital. He stated that you suffer from three forms of heart disease, namely congestive heart failure, cardiomyopathy and ischaemic heart disease. In addition, you suffer chronic obstructive pulmonary disease from long-term smoking, and chronic kidney disease, with periods of acute kidney injury which had been caused by assaults such as dehydration. He said that your kidney disease is a progressive, deteriorating condition. In addition, you had undergone surgery to resect the prostate via the urethra because you suffer benign prostatic hypertrophy. Mr Vincent confirmed that, shortly prior to the commission of the offence, you had been admitted to hospital for a cystoscopy for acute urinary retention. He understood that you had discharged yourself at some “fairly unusual hour of the evening”, against medical advice, and with an in-dwelling catheter.
9 He confirmed that in his 14 years working as a registered nurse and case manager and care coordinator for Barwon Health, he had known many clients who suffered urinary tract infections to suffer a state of delirium by way of temporary altered cognitive state due to such acute infections, and that this could vary from mild confusion to close to psychotic symptoms.
10 Mr Vincent stated that you had also suffered a spinal injury because of a work accident on an oil rig some years ago, and that you had spent time having treatment at the Grace McKellar Centre because of deterioration of the nerve function to your legs. You also suffer osteoarthritis to your knees and this, in combination with your lumbar spine injury and your chronic obstructive pulmonary disease, has resulted in increasing limitations on your mobility over the period that he has been your case manager. You now rely upon a four wheeled frame in order to move. Mr Vincent stated that he found that you were quite often short of breath on exertion and, unfortunately, you are addicted to Nicotine. When you smoke you become technically hypoxic, and this exacerbates your chronic obstructive pulmonary disease.
11 Mr Vincent also stated that he was aware that you were suffering depression and, in particular, a protracted grief reaction following the death of your wife on 23 December 2008. This was your third marriage and you had been together for approximately 26 years. Apparently, your wife had developed cancer and was on a form of life support and hospital staff had asked for your consent for this to be removed in the light of your wife’s reduced condition. You apparently gave consent, but have lived with the guilt of feeling that by doing so you have “murdered” your wife. This factor was particularly referred to in a psychological report of Mr Ball from Central Melbourne Psychology dated 23 March 2017. (Exhibit “5”)
12 Mr Ball took a history of depression and anxiety which you primarily related to unresolved grief for your late wife. You described to him that life had gone downhill after she died and that you expressed a desire to be dead yourself, that your appetite was poor and your sleep disturbed by ruminating on your wife’s death and seeing her die again. He assessed you as suffering significantly lowered mood, resulting from unresolved grief and low self-esteem, with feelings of sadness, insomnia and appetite disturbance. He said you remained angry and self-loathing with a pre-occupation about your own worthlessness and had suffered a prolonged and marked functional impairment and significant dysthymic mood.
13 He said that you presented as a socially detached individual, uncomfortable in social relationships and that you had few, if any, strong relationships and were frequently lonely and isolated. He noted that you admitted that you had started drinking alcohol when you were 16 and, at times, reported consuming dangerous quantities of alcohol. He expressed concern that, although you did not satisfy any DSM-V diagnostic criteria for personality disorder or substance abuse or dependence or other clinical syndromes, you presented as being in the early stages of dementia or other age-related decline.
14 In the report of Mr Jackson to which I have referred earlier, he had noted a medical discharge summary from an admission in September last year. This recorded that you did not have any understanding of your cognitive limitations and it was thought that you would continue to struggle at home. However, Mr Jackson did not find you to be a rambling historian, as mentioned in other reports. Unlike Mr Ball, he did not find any evidence of a disorder of impulse control. However, he did note that on the depression, anxiety and stress scale, you reported symptoms suggestive of extremes of depression, anxiety and stress.
15 On testing, he found that you had many cognitive functions which were intact, albeit in the low average to average range, but your performances in variable processing speed, multiple task processing, attention to detail and delayed recall and recognition memory were in the extremely low to borderline range. He thought that some of your impaired performances on his assessment were likely to be due to intoxication, as you had reported drinking two bottles of stout on the morning prior to the assessment by him and he had noted that you smelled strongly of alcohol. He considered it highly likely that you do have early signs of mild alcohol-related brain injury with impairment of complex planning and organisation and complex new learning and memory.
16 Mr Edwards, there can be no doubt that the offence of arson is a serious one, as reflected by the maximum penalty of 15 years’ imprisonment. Your conduct caused serious damage to the bank. The branch had to close for 5 weeks in order to have that damage rectified. This was a serious inconvenience to the bank, itself, and its customers, as well as to neighbouring businesses in the busy shopping and entertainment strip of Pakington Street. Also, the offence of arson creates demands upon the resources of emergency services, both firefighters and police, which is another toll upon the community. Usually, this offence requires the court to strongly denounce an offender’s conduct and place emphasis on general deterrence and just punishment and it would warrant a term of imprisonment. However, the prosecution has accepted that yours in an unusual case.
17 It seems that, leading up to the offending, an ANZ credit card issued to you had been stolen from you and used for a number of unauthorised transactions. You are a disability pensioner and had no capacity to pay for those unauthorised transactions, which were continuing to accrue substantial interest. The prosecution conceded that there had been many phone calls between yourself and the bank concerning the question of repayment. These calls were viewed by you as harassment, particularly, as your counsel stated, the bank was endeavouring to have you commit to a repayment plan when your only income was $550 per fortnight from your disability pension. You had apparently been very stressed by this. Shortly prior to being admitted to hospital on 26 March 2016, you had been to Centrelink to ensure that your pension would be paid into your account, so that you would have funds available to you over the forthcoming Easter break.
18 As previously mentioned, you discharged yourself from hospital against medical advice on the evening of 27 March, which was Easter Monday. You went to the automatic teller machine to find that there were no funds in your account, tried to obtain assistance from the ANZ customer hotline and, after having no success there, tried to get assistance from Victoria Police. You left the police station in a state of agitation and still unwell, with an in-dwelling catheter, and should have been in hospital. Although your actions in setting fire to the automatic teller machine in a state of anger and frustration could never be justified, I do accept that, on the balance of probabilities, your impaired state of health by reason of your urinary and kidney problems are likely to have impacted adversely on any capacity to think clearly. The prosecution has acknowledged that, for this reason, it is appropriate to consider your moral culpability for the offence be reduced and to mitigate the emphasis upon general deterrence and denunciation. There had been questions raised over your decision-making capacity by health providers for some time, prior to the offending. This was reflected in the content of reports provided to your legal counsel, Mr Brugman, from Barwon Health dated 29 June 2016 and 15 March 2017 (Exhibit 2). Your declining health and multiple hospital admissions over a long period of time had caused questions to be raised as to whether an application to VCAT should be made concerning your health management generally.
19 Following the offending, you had a further admission to hospital from 15 to 22 April 2016. You spent the remainder of the year, up to October 2016, in residential aged care programs and, also, in the University Hospital, Geelong, for problems associated with urological and lung conditions. In fact, as your health has been more adequately managed and you have shown a preparedness to engage with your general practitioner, aged psychiatric services and specialist care, recent tests of cognitive function show that you are capable of making decisions although there remains a question mark over whether you have signs of early dementia or an Acquired Brain Injury through alcohol abuse.
20 I take into account that your multiple medical conditions have made life very difficult for you. They require extensive management by heart and lung specialists, in particular. You are taking a very significant quantity of prescription medications for your heart problems, lung problems, depression, hypertension and lumbar disc degeneration and bilateral knee osteoarthritis. You have had multiple operations on your right knee and require a complete knee replacement. You have ongoing significant pain in your back and sciatica in the left hip area. Your mental and physical health clearly needs very close monitoring.
21 It is apparent from the reports of Mr Ball and Mr Jackson that, over the last couple of years, you have become very anxious and depressed with your ongoing, untreated, unresolved grief over your wife’s death, your multiplicity of medical problems, your reduced mobility and the removal of your independence by no longer being able to hold a driver’s licence. However, with the support of Mr Vincent, you have been linked with a number of programs and have been engaging positively with your general practitioner, cardiologist and a psychiatrist, and cooperating with medical investigations into your health. In addition, you have accepted a referral for financial counselling to an organisation known as Diversitat. Linda Walker, a financial counsellor, was able to assist you in resolving to the issue of your credit card debt to the ANZ Bank, as well as some outstanding loans you have to the Bendigo Bank.
22 You have cooperated in having your residence cleaned in preparation for sale so that you may be able to move to some form of supported residential care due to your high risk medical conditions. You seem to have come to terms with the fact that you need assistance, particularly since you were found lying unconscious at home in only a couple of weeks after this offending. You had a further urinary tract infection and profound dehydration causing renal failure. This lead to your admission to hospital on 15 April 2016, which I have previously mentioned. The acknowledgment on your part, that you need assistance, and your preparedness to accept it, together with your reduced mobility, make it likely that, now, you will continue to have support around you and be less likely to re-offend.
23 I take into account that you entered an early plea of guilty to this offence, there having been a period of short delay when you were unable to give instructions to your legal counsel due to your aforementioned hospitalisation. Your offending was unsophisticated and it was only a matter of time before you were apprehended by police, particularly as you had been to the Geelong Police Station complaining about the ANZ Bank and were then captured on CCTV footage committing the offence. I find it difficult to know one way or the other whether you are remorseful, but you have had, and continue to have, many challenges in your life, and I consider that it is appropriate to extend a degree of mercy to you in sentencing for an offence which would, in other circumstances, carry a term of imprisonment.
24 It seems to me that a Community Correction Order, which you have successfully fulfilled in the past, is an appropriate disposition, taking into account all the circumstances of your offending. By reason of the surrounding circumstances and the mitigatory factors concerning your cognitive state at the time of the offending and ongoing very serious physical impairments, I do not consider that the only appropriate sentence is a term of imprisonment. Indeed, I acknowledge that serving a term of imprisonment with your multiple complex health issues would be very onerous. By being ordered to undertake a Community Correction Order you will have someone who will continue to supervise you and be alert to you potentially going off the rails if you again become overwhelmed by your circumstances. Hopefully, the Office of Corrections will be able to ensure that you continue to be linked in with the supports and service providers that are currently in place. You have been assessed as suitable for a Community Correction Order and have indicated your willingness to undertake one.
25 On one charge of arson, you are convicted and sentenced to undertake a Community Correction Order for a period of three years.
26 The following terms are attached to the order:
(a) you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you are to report to and receive visits from the Secretary during the period of the order;
(d) you must report to the Office of Corrections office specified within two clear working days after the order comes into force;
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
27 In addition, I attach the following conditions to the order:
(i) you must undergo any assessment and treatment for alcohol abuse or dependency;
(ii) you must undergo medical assessment and treatment as directed by the Secretary;
(iii) you must undergo any mental health assessment and treatment, including psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Secretary;
(iv) you must be supervised, monitored and managed as directed by the Secretary.
28 Mr Edwards, do you understand these conditions and are you prepared to consent to an order with such conditions?
29 You must understand that if you not comply with the order, then you may be charged with having breached it, and that, in itself, is an offence punishable by three months’ imprisonment. In the event that that occurs, you would be brought back before the Court, and it may be that the order would be cancelled and you would be ordered to serve a term of imprisonment.
30 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of one jemmy bar, torch and fuel can, and I further direct that these items be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
31 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Sub-Division 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I consider this order is justified by reason of the seriousness of the circumstances of the offending and the fact that it is consented to by you.
32 Mr Edwards, you need to understand that if you do not cooperate with providing a sample of saliva, which involves simply placing a swab inside your mouth, then the police are entitled to use reasonable force to ensure that such a procedure is conducted.
33 Pursuant to s6AAA Sentencing Act, I state, that had it not been for your plea of guilty, the sentence imposed would have been 3 years imprisonment with a non-parole period of 18 months.
0
0
0