Director of Public Prosecutions v Edwards
[2023] VCC 1559
•4 August 2023
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02430
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM EDWARDS |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 5 May 2023, 26 July 2023 | |
DATE OF SENTENCE: | 4 August 2023 | |
CASE MAY BE CITED AS: | DPP v Edwards | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1559 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – sentence – guilty plea
Catchwords: Sentencing – arson – commit indictable offence whilst on bail – 20 year old offender – high risk of unintended consequences – proximity of neighbouring homes – quantum of damage not high – not motivated by financial reward or criminal purpose – impulsivity – short criminal history – intellectual disability – attention deficit hyperactivity disorder – schizophrenia – depression – complex array of functional deficits – symptoms of paranoia and auditory hallucinations – reduced moral culpability – previously suffered serious burns as a victim of crime –hardship in custody due to COVID – utilitarian value of plea during COVID
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Brown (aka Davis) v The Queen [2020] VSCA 60; R v Mattheas [2003] VSCA 221; Hasan v The Queen [2004] VSCA 137; R v Noonan [2007] VSCA 5; R v Crowley [2009] VSCA 176; Hasan v The Queen [2010] VSCA 352; Davies v The Queen [2019] VSCA 66; Anderson v The Queen [2019] VSCA 42; Stanger v The Queen [2021] VSCA 25; Said v The Queen [2020] VSCA 178; Smith v The Queen [2013] VSCA 219; DPP (Vic) v Derby (2007) 171 A Crim R 302; Phillips v The Queen [2017] VSCA 313; McPadden v The Queen [2018] VSCA 57; R v Nugnes [2002] VSCA 114; Bugmy v The Queen (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120; Verdins v The Queen (2007) VSCA 160.
Sentence:Total effective sentence 12 months imprisonment plus 18 months community correction order with Justice Plan; 332 days reckoned as already served; 6AAA: 2 years 6 months with a non-parole period 1 year 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty (Plea) | Office of Public Prosecutions |
| Ms K. Hartman (Sentence) | ||
For the Accused | Mr C. Pearson | Martin Middleton Oates |
HIS HONOUR:
1Adam Edwards, you have pleaded guilty to one charge of arson relating to setting fire to a home unit in Mildura on 4 September 2022. At the time, you were on bail.
Summary of offending
2The agreed basis for your guilty plea is set out in the prosecution opening dated 4 April 2023, which I summarise as follows.
3About a month before the fire, your sister Shania Markadonatos and her friend Emily Oakley began living at a unit in Etherington Avenue. You did not live with them.
4However, on the weekend of 3-4 September 2022, your sister and Ms Oakley went to stay with your parents. While they were away, they allowed you to stay at the unit for the weekend.
5
On Sunday 4 September 2022 at about 11.30 am, your sister and
Ms Oakley dropped in at the unit. You were not there at the time. They say it was messy, and the lounge room heater had been left on. Your sister turned it off and left the back door open for you before leaving.
6You returned at about 3.15pm and were there for about 25 minutes. You told police that you were 'messing around with the heater, heard something ticking, saw a shadow across the wall and started to “freak out”'.
7You felt you were being watched and told police that you can see things that no normal person can see. You said something came over you and you went into some sort of trance. You got a can of deodorant from your sister's room and sprayed it on a sheet and a blanket on the couch in the lounge room. You then lit them and a fire started to spread (Charge 1 – arson).
8You watched it burn for a short time, then left the unit and as you walked away, smoke was coming from the roof. You told police later that you did not want it to happen.
9Within a minute or so, neighbours saw the smoke billowing from the front room. Reagan Burbee tried to put the fire out with a garden hose and Natasha Murphy called the CFA.
10When they arrived, the CFA found the lounge room area of the house engulfed in flames. By the time they had put it out, the fire had caused extensive damage to the lounge room, its contents, and the roof. The lounge room window had been shattered from the heat and the kitchen and dining room furnishings were sooted, melted or burnt. Fortunately, the fire had not spread to any other rooms.
11The unit was owned by the Department of Families Fairness and Housing and the cost of rectifying the damage was $165,700.
12There is neither a victim impact statement nor an application for compensation.
13At the time of the fire, you were on bail for unrelated offending (Summary charge – committing an indictable offence whilst on bail).
Procedural history
14Police arrested you two days after the fire, on 6 September 2022 and interviewed you before remanding you in custody.
15You indicated you would plead guilty and you were committed on 21 December 2022. I accept that you pleaded guilty at the earliest reasonable stage in the proceeding.
16Your plea proceeded before me on 5 May 2023 in Mildura, during which you sought more time to return to court with further material, including about available accommodation and an assessment for a Justice Plan. Further hearing was set for 16 June but was adjourned with your agreement to obtain this material and source a place to live upon release.
17Further plea submissions were finally made on 26 July 23 when it was reported that accommodation was still proving to be a vexed issue. Nevertheless, you submitted that the court should proceed to sentence and that not to do so would run the risk of you being kept longer in custody solely because of a lack of available services in the community.
18Your plea is significant because it shows that you accept responsibility for what you did, that you are sorry for it and that you are willing to cooperate with the justice system.
19You deserve a reduction in your sentence for your plea because it has permitted the court to allocate resources to hear trials and reduce the backlog of cases due to the COVID pandemic.[1]
[1] Worboyes v The Queen [2021] VSCA 169, [35]-[39].
20You have been in custody since 6 September 2022. Your time in prison since that time has been somewhat harder than it should have been because of the pandemic. To some degree, visits have been restricted and there have been at least ongoing risks of lockdown and restricted services being available. I will reduce your sentence because of this.[2]
[2] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
21I note that during your remand, you have most recently been staying at the Salamander Unit at the Port Phillip Prison where there are supports available for people with disabilities and other needs.
Personal circumstances
22You are now 22 years old and you were only 20 at the time of the fire.
23You were born in the Riverina area of New South Wales and initially raised by your biological parents.
24As a child you were a victim of abuse, and you were exposed to family violence and substance abuse. You were removed from your mother's care when you were four years old. You spent lengthy periods in residential care settings and foster homes, until you moved out into independent accommodation in your late teens.
25Your father passed when you were 12 years old. Your mother currently lives in the Red Cliffs and Mildura areas, and you have regular contact with her, but not so with other family members.
26You attended high school in Redcliff until year 10, where you got along well with others, and you enjoyed some subjects such as woodwork. Since leaving school, you have been supported on the disability support pension and have had to deal with State Trustees to manage day to day matters. I accept this has not been easy for you and that you find it frustrating.
27In 2017 when you were 16, you started to smoke cannabis and by the time you reached 21 in 2022 you were using methylamphetamine.
28A summary of the challenges you have faced over recent years helps to put your circumstances at the time of the fire in context.
29You have been diagnosed with a disability, meaning that it is harder for you to make sense of what is going on around you and to think through your actions and what consequences might flow from them. You also have been diagnosed with attention deficit hyperactivity disorder. I find that because of these conditions, you face challenges to make good decisions or to choose the best course of action when you are in difficult situations.
30During 2020, you suffered serious burns as a victim of a serious criminal assault. Your injuries required hospitalisation in an intensive care unit. You were placed in an induced coma and you had to undergo multiple subsequent surgeries. As a result of this incident, you have sustained lifelong scarring to your abdomen and legs. Your injuries and the associated trauma have left an ongoing negative impact on your mental health. You still relive the incident to this day. It has diminished your trust in friends and family.
31In July 2020, the Mildura Hospital recorded you as having a diagnosis of schizophrenia and depression and being on relevant antipsychotic medications.
32In September 2021, you went multiple times to the hospital seeking help and were admitted to the Mental Health Ward (Exhibit 5). You were anxious, restless, angry, loud, easily irritated, and expressed unusual ideas about spiritual things, sexual things, having a split personality and being connected to a spiritual being. Hospital staff found your insight and judgment to be compromised. They placed you on an involuntary treatment order for some days and you were required to stay there, including in the high dependency unit. On discharge, you were prescribed anti-psychotic medication, sleeping pills and painkillers.
33A year later, in November 2022, after you were taken into custody, you were then transferred to Thomas Embling Hospital, then to Ravenhall and then to the unit where you are currently at Port Phillip. These locations cater for prisoners with additional mental health needs, and this reflects the depths of the challenges you face and the need you have for support and services. In spite of these challenges, you have nevertheless completed several education programs whilst in custody, including an Occupational Health and Safety course, and that is a credit to you.
34Your counsel tendered material from a Behavioural Support worker Mellissa Smoker, namely an Interim Behaviour Support Plan dated 18 March 2023 (Exhibit 2) and a Review report of the BSP dated 1 May 2023 (Exhibit 3). At page 8 of the behaviour support plan, (Exhibit 2), she states:
'In the three months prior to his recent incarceration, Adam presented 27 times to hospital emergency departments. Additionally, he presented to Prevention and Recovery Care every two to three days, often emotionally heightened, presenting in an aggressive and demanding manner. While Adam displays persistent help-seeking behaviours in times of perceived crises, he will often disengage once his immediate needs are met, contributing to worker fatigue and service withdrawal. Thus, ultimately, limiting the service system's capacity to therapeutically and appropriately engage with him.'
At page 10, Ms Smoker candidly observes that whilst the BSP is able to identify needs, in considerable detail I might add, there is 'no identified implementing provider' of services.
35In her Review report, at page 2, Ms Smoker stated:
'Prior to incarceration, Adam lived alone in social housing where he experienced significant housing instability. Adam was evicted several times due to property damage or would abandon his residence in the context of declining mental health. Adam was not engaging with NDIS funded support services during this time …'
36In his report of 1 May 2023 (Exhibit 1), Consultant Psychologist Ian Mackinnon stated you lack insight into your offending and that you will need supervision and support for your ongoing treatment for mental health.
37Mr Mackinnon records a number of diagnoses, which I understand you do not necessarily agree with. They include schizoaffective disorder, antisocial personality disorder, autism spectrum disorder and ADHD.
38Mr Mackinnon states that your complex array of functional deficits contributed to your offending. It appears that at times your perceptual and cognitive abilities are distorted, and you experienced symptoms of paranoia, auditory hallucinations, and delusions of grandeur. Further, your capacity for consequential thinking and moral reasoning was substantially diminished due to your disordered psychological state.
39Senior Occupational Therapist Erin Bell in her report dated 19 April 2023 (Exhibit 4) noted that you will face a very high need for formal support when you return to the community, involving support to find accommodation, and to manage finances and develop skills. She recommended a significant package of service funding to that end.
40In that context, you only have a short criminal history. In June 2022 in Victoria you were fined with conviction for making a threat, assault, breaching an intervention order and stealing. I do not regard that history as being very significant. It suggests that, taking into account the length of time you have spent on remand, I should sentence you in a way that promotes your rehabilitation in the community rather than gaol.
Sentencing issues
41As to sentencing issues, arson is a serious offence and has a maximum penalty of 15 years. The summary offence of offending on bail has a maximum of three months.
42Arson carries with it a considerable risk to nearby property, people, and the emergency services workers whose job it is to bring a fire under control. It is trite to say that fire, by its very nature, has the potential to spread and cause serious, even if unintended, consequences. Your behaviour on this afternoon was obviously dangerous.
43Some of the aggravating circumstances that feature in more serious arson cases are not present in your case, however. You have not committed multiple offences of arson in this case.[3] The quantum of the damage, being $165,700, cannot be said to be high.[4] It is not suggested you were motivated by financial reward or any other criminal purpose.[5] You knew that no one else was in the house at the time and so you did not put anyone at direct risk.[6] The fire was not one that was particularly difficult to detect given the time of day.[7] Finally, your decision to light the fire was impulsive.[8]
[3] R v Mattheas [2003] VSCA 221; Hasan v The Queen [2004] VSCA 137; R v Noonan [2007] VSCA 5 (‘Noonan’); R v Crowley [2009] VSCA 176; Hasan v The Queen [2010] VSCA 352.
[4] Davies v The Queen [2019] VSCA 66, [762] (‘Davies 2019’).
[5] Noonan [55].
[6] Ibid [56]
[7] Anderson v The Queen [2019] VSCA 42, [70]-[71] (‘Anderson’), Stanger v The Queen [2021] VSCA 25, [40] (‘Stanger’).
[8] Davies 2019 [719]-[720]; Said v The Queen [2020] VSCA 178, [80] (‘Said’); Smith v The Queen [2013] VSCA 219, [19].
44While it was unsophisticated and unplanned, it was still highly dangerous. The house is in a residential area. The risk of unintended consequences was high, at least due to the proximity of neighbouring homes,[9] and the public at large.[10]
[9] DPP (Vic) v Derby (2007) 171 A Crim R 302, 307 [21] (‘Derby’); Phillips v The Queen [2017] VSCA 313, [62] (‘Phillips’); McPadden v The Queen [2018] VSCA 57
[10] R v Nugnes [2002] VSCA 114, [18]-[19] (‘Nugnes’); Bright [2]
45I find that the principles set out in Bugmy's case[11] apply to yours. As set out by Melissa Smoker, your childhood was characterised by social and emotional disruption, disadvantage, and trauma, further compounded by your intellectual disability which affects all aspects of your life.[12] Consequently, you are at real risk of impulsive conduct and difficulties in managing heightened situations. I find these risks are likely to be lifelong and combine to reduce your moral culpability to a substantial degree. [13]
[11] Bugmy v The Queen (2013) 249 CLR 571, [42]-[44]
[12] Muldrock v The Queen (2011) 244 CLR 120, [53]-[55]
[13] Verdins v The Queen (2007) VSCA 160, [32]
46In all the circumstances, I find that the weight to be given to general and specific deterrence and denunciation is substantially moderated. The need to punish you by lengthy imprisonment is reduced and the focus of sentence should be on rehabilitation in the community.
47The prosecutor conceded that while deterrence and community protection remain important, a combination sentence in this case would be appropriate.
48To that end, I received a Client Overview Report dated 20 July 2023 (Exhibit A) and a Justice Plan dated 20 July 2023 (Exhibit B) provided by the Forensic Disability Program of the Department. Those documents confirm your eligibility for a Justice Plan, noting the Statement of Intellectual Disability dated 6 June this year (Exhibit C).
49Finally, I received an assessment of your suitability for a community correction order dated 25 July this year (Exhibit D). It recommended that you engage in supervision, judicial monitoring, assessment and treatment for drug use, mental health and programs to address offending behaviour as well as attending court for judicial monitoring.
50The assessment was based on your returning to Mildura to be close to your mum and to go to Corrections there. I accept that you have some concerns about returning to Mildura and that you may well seek to move somewhere else. The order I make today does not restrict you from doing so, but you must cooperate with Corrections so that they can transfer your order to any new location. To be clear, I expect you to go to Mildura and at least start this order before moving anywhere else.
51I sentence you as follows:
(a) On Charge 1, arson – 12 months' imprisonment and a CCO with conviction for 18 months;
(b) On summary Charge 1, committing an indictable offence on bail – you are convicted and discharged.
52I declare that you have served 332 days and direct that this be reckoned as a period already served under this sentence.
53On the arson charge, I also impose a single community correction order, with conviction, for 18 months, and it includes the following conditions beyond the mandatory ones. The first two conditions arise from the two recommendations in the Justice Plan.
(a) The first condition is you have got to engage with a Disability Justice Coordinator from the Department of Families, Fairness and Housing for the duration of the order and participate in any recommended programs or services as directed by them. That is about engaging in programs.
(b) The second condition is that you have got to participate in a referral to the Forensic Disability Clinical Services team and participate in assessment and any offending behaviour programs they recommend, so that is a specialist programs condition.
(c) The next three conditions relate to community corrections. The first is you must attend your GP in Mildura and engage in a review of your medication as well as any physical and mental health needs. That condition is about you going to your GP and establishing yourself with them.
(d) The next condition is you must engage in supervision with Corrections, which means going to Corrections and meeting with them, however often they say.
(e) The last condition of the CCO is that you have got to engage in assessment and treatment for drug abuse. That means drug counselling, and also any counselling for your mental health that they recommend.
54In accordance with s 6AAA of the Sentencing Act 1991, but for your guilty plea, I would have imposed two years and six months and fixed a non-parole period of one year and six months. I hope you can see that because of your plea you have a substantial reduction in your sentence.
55Mr Edwards, what this means is that after you have served 12 months – if that time is not already up, it will be in the coming days – you will be released. Your exact release date will be set by Corrections after they calculate your emergency management days.
56When you are released, the first thing you must do is contact Corrections and go there in Mildura within two days of your release. Do you understand that?
57OFFENDER: Yes.
58HIS HONOUR: You will also have to contact your disability worker, and they will be your key person to organise your appointments and other supports. Do you agree to having this community correction order with the Justice Plan that I have just spelt out?
59OFFENDER: Yes, I do.
60HIS HONOUR: Thank you.
Ancillary orders
61I will make the disposal order as sought, unopposed, in relation to the cigarette lighter.
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