Director of Public Prosecutions v Findlay
[2015] VCC 1230
•2 September 2015 (in Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY AND MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00461
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN FINDLAY |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley and Melbourne | |
DATE OF HEARING: | Commenced at Latrobe Valley 24 June 2015 and adjourned to Melbourne for further hearing on 24 August 2015 | |
DATE OF SENTENCE: | 2 September 2015 (in Melbourne) | |
CASE MAY BE CITED AS: | DPP v Findlay | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1230 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Arson, make threat to kill, make threat to destroy property
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Disability Act (2006)
Cases Cited:Boulton v R [2014] VSCA 342; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Muldrock v R [2011] HCA 39
Sentence: 9 months’ imprisonment followed by a two year Community Correction Order with conditions. 6AAA declaration – two years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty (Latrobe Valley) Ms M Mahady (Melbourne) | Solicitor for Office Public Prosecutions |
| For the Accused | Ms S McCrickard (Latrobe Valley) Ms D La Movie (Melbourne) | Victoria Legal Aid |
HIS HONOUR:
1 John Louis Findlay, at Latrobe Valley Court on 24 June 2015, you pleaded guilty to the following offences:
Charge 1, that you at Warragul in Victoria on 15 December 2014, intentionally and without lawful excuse, destroyed by fire, a house at 3 Centre Avenue, Warragul, belonging to the estate of Claire Findlay. The offence of arson is contrary to s197(1) of the Crimes Act 1958 and carries a maximum penalty of 15 years' imprisonment.
Charge 2, that you at Longwarry in Victoria on 14 December 2014, without lawful excuse, made to Robert Berry, a threat to kill Robert Berry, intending that Robert Berry would fear that the threat would be carried out, or being reckless as to whether or not Robert Berry would fear that the said threat would be carried out. Make threat to kill is contrary to s.20 of the Crimes Act 1958 and carries a maximum penalty of 10 years' imprisonment.
Charge 3, that you at Longwarry in Victoria on 15 December 2014, without lawful excuse, made to Sarah Buchanan, a threat to kill Sarah Buchanan, intending that Sarah Buchanan would fear that the threat would be carried out or being reckless as to whether or not Sarah Buchanan would fear that the said threat would be carried out. As I have said, make threat to kill is contrary to s.20 of the Crimes Act 1958 and carried a maximum penalty of 10 years' imprisonment.
Charge 4, that you at Traralgon in Victoria on 16 December 2014, without lawful excuse, made to Chantelle Lovell, a threat to damage property belonging to the estate of Claire Findlay, with the purpose of causing Chantelle Lovell to fear that the said threat would be carried out. Threat to damage property is contrary to s198(a) of the Crimes Act 1958 and carries a maximum penalty of five years' imprisonment.
2 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit 2), and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)At the time of the offending, you were 63 years old and will turn 64,
I believe, tomorrow. You have been unemployed for many years and have received a disability pension from you previous employer, Telstra.
(b)Up until your offending on 15 December 2014, you resided at 3 Centre Avenue, Warragul, (“the premises”), which premises had been previously owned by your mother, Claire Findlay, who died in 2012. In her will, Claire Findlay provided you with a life interest in the property at 3 Centre Avenue, Warragul and on your death, the premises were then to be transferred to the adult grandchildren of Claire Findlay, consistent with her instructions in her will.
(c)Accordingly, you were a tenant of the premises for your life only and not the owner of the premises. Any decisions in relation to the premises had to be approved by others.
(d)By order of the Victorian Civil and Administrative Tribunal, your finances are controlled by State Trustees with such order being sought at the request of family members when it became apparent to them, you were incapable of looking after your own finances. State Trustees appointed the legal firm, Messrs Flinders, Judge and Papaleo to be your trustee and to handle your financial affairs.
(e)In administering your finances, Flinders, Judge and Papaleo provided you with moneys on a regular basis, consisting of $50 on Mondays, Tuesdays and Wednesdays and $150 on Fridays. Your bills and expenses were paid by the legal firm.
(f)Throughout December 2014, you constantly rang the office of your trustee and demanded money to be placed in your bank account. When you were refused, you threatened the person you were talking to, threatened to shoot other persons at the office or blow up the premises. These calls and threats escalated through December.
(g)Also during December 2014, you made threats to a person known to you for some 40 years, Robert Berry (“Berry”). You believed that Berry owed you $910 for work you performed for him approximately 15 years ago. You made constant threats, stating that you were going to kill Robert Berry unless he paid you the $910. You threatened to shoot Berry.
(h)On Sunday, 14 December 2014, you approached Berry at the Longwarry Hotel and demanded money from him. After Berry refused, you stated you were going to kill him and that you would get a gun and shoot Berry. (Charge 2 -make threat to kill).
(i)On Monday, 15 December 2014, you rang the legal offices of your trustees and spoke to a solicitor named Sarah Buchanan and demanded money and threatened that if you were not given money, you would burn down your house and come and kill them. You were refused money. (Charge 3 - make threat to kill).
(j)At approximately 11.15 am on Monday, 15 December 2014, you got a five litre can of petrol from your garage and poured petrol throughout the lounge room of the premises and set the premises on fire. You then stood at the front of the premises watching it burn and were heard to say: “At least the kids can’t get it now”, which was a reference to your nieces and nephew who were going inherit the property after your death. (Charge 1- arson).
(k)The fire brigade and police attended the premises and you were taken into custody at that time and conveyed to the Warragul Hospital for psychiatric assessment. The house was totally destroyed by the fire.
(l)When in custody, you continued to make threats against Robert Berry and your trustees. You stated to the police that you were going to get a gun and shoot Robert Berry and then kill yourself. Furthermore, you stated you were going to kill solicitors at the legal firm and in particular “Sarah”, who you said you were going to shoot. At that time, you informed police that you had guns buried in the bush and knew how to make a bomb.
(m)You were assessed by psychiatric services and subsequently admitted to the Flynn Ward at Traralgon for treatment.
(n)On Tuesday, 16 December 2014, you rang your firm of trustees from the psychiatric ward and spoke to the client service manager, Ms Chantelle Lovell. You again threatened to kill staff and blow the premises up and then walked them through the process of making a bomb. (Charge 4 - threat to damage property).
3 You were released from the psychiatric ward at Traralgon on 24 December 2014 and on Saturday, 27 December 2014, you were arrested and interviewed by police. During the course of such interview, you made full admissions in relation to burning the premises down and stated that you had been thinking about doing such acts for about two years. You asserted that you did it on that particular day because you got “mad” on being refused further money from your trustees.
4 You also made full admissions in relation to threats to kill Robert Berry and the staff at the trustee firm. Such threats were made to respectively obtain the $910, which you believe is owed to you by Robert Berry, and the threats to the staff at the legal firm because “they had about seven to eight thousand in trust and refused to give…[you]… two to three thousand to buy a car.” You stated you did this to scare them, but had no intention of carrying out the threat.
5 Counsel for the prosecution tendered a bundle of photos of the burnt premises. (Exhibit 3). I was also informed by counsel for the prosecution that there would be no application for compensation in relation to the burnt premises, as there were ongoing issues as to whether there was any difference in the value of the property after the fire.
6
I was also informed by counsel for the prosecution that you had been remanded in custody for a period of 240 days, up to but not including
24 August 2015.
Your criminal record
7 Your criminal record, the contents of which you agree were accurate, was tendered. (“Exhibit 1”). I note the following:
(a) Your most recent offending involved being convicted at the Latrobe Valley Magistrates’ Court on 19 August 2013 for shop theft and failing to answer bail, all of which resulted in a fine of $350;
(b) Your last offending, prior to the conviction on 19 August 2013, was on 21 March 2005, when you were convicted at the Moe Magistrates’ Court of driving whilst disqualified, assaulting police, failing or refusing to leave licensed premises on request, resisting police, drunk in a public place, behaving in an offensive manner in a public place. In respect of the offence of driving whilst disqualified, you were sentenced to one month's imprisonment wholly suspended and your driving licence was suspended for three months. In relation to the other offences at that time, you were sentenced to an aggregate 14 days’ imprisonment, again wholly suspended;
(c) Also on 21 March 2005, it was found proven that you breached an earlier suspended sentence in relation to making a threat to kill and a threat to destroy property. In relation to those offences, you had been convicted at the Moe Magistrates’ Court on 19 December 2001 and sentenced to three months' imprisonment, wholly suspended for 12 months. Subsequent to that conviction, you were convicted and discharged of being drunk in a public place on 2 September 2002, 7 October 2002 and on 19 November 2002. On 19 November 2002, you were also convicted and fined $850 for assaulting police, using threatening words in public place and wilfully trespassing in a public place, together with being drunk in a public place;
(d) You also have convictions for various offences involving theft, indecent language and driving while disqualified, and assaulting police, which extend over years, back to 1990;
(e) You also have convictions in the Perth Court of Petty Sessions on
24 April 2003, for common assault and disorderly conduct, for which you were fined $500 and on 20 February 2004, for involving assaulting police, breaching bail conditions and resisting arrest again, for which you were fined in total $150.
8 I do note that much of your offending seems to be related to the abuse of alcohol.
Material tendered by your counsel
9 You counsel, in support of your plea in mitigation, tendered the following documents:
·Exhibit A - Report of the forensic psychologist, Mr David Ball, who consulted with you at the Metropolitan Assessment Prison on 29 May 2015;
·Exhibit B, a bundle of medical reports in relation to various treatment for psychological issues and alcohol dependency.
10 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect to your personal circumstances, your educational and vocational background.
11 You informed the psychologist, Mr Ball, that you and an older brother were raised in what Mr Ball ultimately described as “a mostly cohesive and functional family”, with no reports of family violence, mental illness, criminality or substance abuse amongst family members.
12 You remained at school to the end of Year 10 and described yourself as a generally a “good” student, although you did repeat some subjects at school. In particular, you informed Mr Ball that you had no significant difficulties with social development or with discipline.
13 On leaving school, you undertook training as a telephone technician and remained with the same employer for approximately 10 years, after which you worked in more varied employments in low or unskilled positions.
14 Over the years, although you have never married or fathered any children, you have been involved in three significant relationships of several years’ duration and at the time of your consultation with Mr Ball, you described having been in a relationship for the last nine months.
15 In particular, you informed Mr Ball that you commenced drinking alcohol when you were 14, but described yourself now as a “moderate drinker”. Mr Ball noted that the medical records available to him (Exhibit B) refer to “chronic alcohol abuse dating back to 1975”. You informed Mr Ball that you prioritised alcohol and gambling over other considerations and said:
“After I've had a bet and few drinks, I don’t have any money left for food or anything.”
16 You gamble on a daily basis, mostly on horse racing and in the past for a period of 12 months, considered yourself a “professional gambler”. You consider that your gambling is “under control”.
17 In response to Mr Ball, you denied ever experimenting with or abusing illicit substances and furthermore denied ever abusing or overusing prescribed over-the-counter medication.
18 I refer to Exhibit B and in particular the following:
(a)the letter from the general practitioner, Dr Steven Hall, dated 2 June 2015, wherein he records that you have suffered chronic alcohol abuse since 1 January 1975 and schizoaffective psychosis, with the onset being on 1 January 1983.
(b)I refer to the letter from the registered psychiatric nurse, Mr Peter Stevens to Dr Hall, dated 25 November 2000, wherein it describes that you have had several admissions to Flynn Ward, Latrobe Regional Hospital, since April 2000 with “aggressive, threatening behaviour and intoxication”. In particular, Mr Stevens notes:
“He has a 30 plus year history of regular alcohol use, but does not wish to access alcohol and drug counselling, despite attempts to get him to do so. John can be a risk to himself and others when drunk, although there is no known history of suicidal ideation.”
When admitted to the Flynn Ward in April 2000, you were reviewed by the consultant psychiatrist, Dr Das.
(c)Letter from Dr Duncan Taylor, psychiatrist, to Dr Richie Emmerson at the Central Clinic in Warragul, dated 13 January 2014, wherein he describes you as suffering from a schizoaffective disorder, bipolar type, likely alcohol dependence and a gambling addiction. At that time you were being treated with various medications. The psychiatrist noted that you were still drinking between six and eight stubbies a day and that your daily routine consisted of meeting up with friends to drink and place bets. At that time you requested that the anti-psychotic medication, depot Paliperidone be ceased, against the advice of the psychiatrist.
The report of Mr Ball.
19 Mr Ball noted that he could find no evidence of episodic dyscontrol, intermittent explosive disorder or explosive rage. However, he noted that you were unable to gauge your rising anger or calm yourself with positive self-talk. Mr Ball was of the opinion that you were unable to articulate any anger management strategies, such as avoiding or escaping situations or people who might make you angry. Apparently, you acknowledge that you are more prone to aggressive acts when affected by alcohol. Under the heading “Diagnosis”, Mr Ball states:
“Based on Mr Findlay’s self-reported personal history, medical records and clinical interview, I am of the opinion that he satisfied the DSM5 diagnostic criteria for severe alcohol disorder in early remission, in a controlled environment. He also satisfies the DSM5 diagnostic criteria for pathological gambling.
…
Mr Findlay presents as an illiterate, innumerate and as a generally low functioning adult. I am unable to assess whether his impairment is congenital, rather than acquired by long-term alcohol abuse. His intellectual impairment will continue to be lifelong. I confirm, he must have been affected by his intellectual impairment at the time of the alleged offending.”
20
I do note that Mr Ball comments that long-term alcohol abuse negates a
DSM-5 diagnosis of Schizoaffective Disorder. In this respect, although noting that the psychiatric records which suggest a differential diagnosis of schizoaffective disorder, Mr Ball considered that the previous schizoaffective “psychotic” symptoms are probably better accounted for by alcohol abuse.
21 When this matter was initially listed for the plea on 24 June 2015, counsel for the prosecution submitted, given the degree of mental impairment, it would be appropriate to sentence you to a term of imprisonment, representing the time already served by you, together with a community corrections order with various conditions. In particular, counsel for the prosecution suggested judicial monitoring condition, as he considered that there would a substantial risk you would not abide by the terms and conditions of the order without some judicial monitoring.
22 Counsel for the prosecution also noted that in relation to at least one of the threat to kill charges, you will have to be a sentenced as a serious violent offender within the meaning of the Sentencing Act 1991. I was informed that the prosecution was not seeking a disproportionate sentence in relation to that offence.
23 On that day, your then counsel also joined in the submission made by counsel for the prosecution, that an appropriate disposition would be time served, together with the ordering of a community corrections order with various special conditions.
24 Although your counsel accepted that both the offence of arson and the threats to kill are serious offences, as clearly evidenced by the maximum penalties, and in normal circumstances, just punishment, general and specific deterrence would be important sentencing factors, it was submitted that given the state of your intellectual impairment, the principles enunciated in Muldrock v R [2011] HCA 39 are apposite, and in particular, I refer to the following:
“53. Black DCJ’s finding, expressed in lay terms, that the appellant’s intellectual disability is ‘significant’, was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the court to find that Black DCJ’s determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:
‘General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality, because such an offender is not an appropriate medium for making an example to others.’
In the same case, Lush J explained the reason for the principle in this way:
‘[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.’
54. The principle is well recognised. It applies in sentencing offenders suffering from mental illness and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, and the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”
(See paragraphs 53 to 54).
25 I was also informed on that day by your counsel that a Mr Trevor Pratt and Ms Elizabeth Moll, who are both friends, have taken an active role in your care and that in the event that you are released into the community, you have the potential to live with Mr Pratt in Warragul.
26 Because of the suggestion of mental impairment suffered by you, the court ordered that a justice plan report be obtained and that you also be assessed for a community corrections order. In such circumstances, the matter was adjourned to Melbourne and ultimately continued on 24 August 2015.
27 In correspondence received from the Department of Health and Human Services, the court was informed that the Department has determined that you do not have an intellectual disability, as defined by the Disability Act 2006. In this respect, it is noted that the Disability Act 2006 stipulates that for a person to be determined as having an intellectual disability, he or she must be significantly below average intellectual ability, with significant defects in everyday living skills, and perhaps more importantly, both these factors must be present prior to the age of eighteen. In your case, it could not be determined whether your low range of cognitive functioning commenced prior to the age of 18 years.
28 However, the Department noted that you do have some degree of acquired brain injury and are able to make a request to access services from Disability Services.
29 On 10 August 2015, you were assessed by the Department of Justice to be suitable for the imposition of a Community Correction Order. At that time, you were assessed as being a medium risk of re-offending, according to the level of service risk assessment tool.
30 During the course of the interview with the Department of Justice, it was noted that you “are currently not receiving any medication and no longer wish to receive medication, even if it is prescribed”. You did indicate that you do not have any current desire to commit suicide, however, should you receive a sentence of imprisonment, then you would rather commit suicide than spend any further length of time in custody.
31 The Department of Justice recommended that if a Community Correction Order is made, the following extra conditions should be added: treatment and rehabilitation in relation to alcohol, mental health and programs reducing offending, pursuant to s.48D(3)(f) of the Sentencing Act 1991, together with supervision and judicial monitoring, pursuant, respectively, to ss.48E and 48K of the Sentencing Act 1991.
32 When the matter was back in Melbourne for further plea, following both parties receiving the various report material, the prosecution confirmed that time served, together with a Community Correction Order with various conditions, would be an appropriate sentencing disposition. Furthermore, your counsel at that time confirmed that your friend, Mr Trevor Pratt, has indicated that you could temporarily stay with him until such time as Disability Services establishes more permanent accommodation.
Conclusion
33 As your counsel submitted, the offences of arson and threat to kill are serious offences, as clearly evidenced by the maximum penalties for such offences. Generally, in normal circumstances, just punishment and general and specific deterrence would demand a reasonably lengthy prison sentence.
34 It is clearly totally unacceptable that a person can destroy property by fire because the trustee of their affairs, doing no more than organising your financial affairs for your benefit, refused to make any further payments. In the same way, it is totally unacceptable that you resort to making threats to kill merely because you believe, firstly, some money was owed to you by what appears to be an old friend, and secondly, to resort to such a threat merely because a solicitor says you cannot have moneys which you are not entitled to.
35 In particular, I consider the offending involved in Charges 1, 2 and 3 to be objectively serious. Furthermore, you have not shown any particular remorse for any of the offences committed by you.
36
In mitigation, I do accept that your plea of guilty was at the earliest possible time and you made full admissions to the police when initially interviewed. Furthermore, although you do have a reasonably lengthy criminal record, you have been seemingly crime free since March 2005, save for the shop theft and failing to answer bail, for which you were fined $350 on 19 August 2013.
I am also conscious, as already noted, that much of your offending in the past seems to be related to excessive use of alcohol.
37 I do accept that you do have an acquired brain injury, most probably due to excessive ingestion of alcohol over many, many years. I also accept the opinion of Mr Ball that most probably the mental impairment which you suffer as a result of your acquired brain injury, played a role in the offending.
38 In a similar way, based on relevant authority, I consider that the sentencing considerations of just punishment, general and specific deterrence, have to be significantly tempered, given the diagnosis of mental impairment brought about by excessive consumption of alcohol (see Muldrock v R, already quoted and R v Verdins & Ors [2007] VSCA 10 at [32]).
39 I refer to the guideline judgment given by the Court of Appeal in Boulton v R [2014] VSCA 342, pertaining to the operation of Community Correction Orders, which have been available in Victorian courts since January 2012. As that court stated, “The Community Correction Order is a radical new sentencing option, with the potential to transform sentencing in this State.” Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature, and the sentencing court can attach to a Community Correction Order, a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a community corrections order is a “flexible sentencing option, enabling punitive and rehabilitative purposes to be served spontaneously.”
40 I refer to s.5(4) and (4C) of the Sentencing Act, and note that the Court of Appeal has stated that s.5(4C) of the Sentencing Act 1991:
“prohibits the imposition of a sentence of imprisonment, unless the sentencing court has paid specific and careful attention to
(a) the purposes for which sentence is to be imposed on the offender; and
(b) whether those purposes can be achieved by a CCO, to which one or more of the specified onerous conditions is attached.” (See Boulton, op cit at [120]).
41 I also refer to Appendix 1 to the Court of Appeal judgment which is headed ‘Community Corrections Orders: Guidelines For Sentencing Courts’. Pursuant to that document, it is necessary that I assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, I consider that although these offences are objectively serious, your moral culpability is reduced, to some extent, by the principles I have referred to, and furthermore, general and specific deterrence do not have the same force. I am then called upon to consider whether:
(a)the crime is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b)a Community Corrections Order, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
42 After careful consideration, I consider the appropriate sentencing disposition should be a period of imprisonment, together with a Community Correction Order, for a period of two years with various added conditions.
43 I propose to convict you of each offence.
44 Given the nature of your offending, you will be sentenced as a serious offender within the meaning of Part 2A of the Sentencing Act 1991, and in particular as a serious violent offender, given your earlier conviction for threat to kill, (for which you received a sentence of imprisonment). I direct that it be entered into the records of the court that in relation to Charges 2 and 3 you were sentenced for such offence as a serious violent offender pursuant to s6F of the Sentencing Act 1991. In this respect, I note that you have a relevant prior conviction for making threat to kill – for which you received a 3 month term of imprisonment, wholly suspended at the Moe Magistrates Court on 19 December 2001.
45 Section 6D of the Sentencing Act 1991 directs the court, in determining the length of sentence, that it must regard the protection of the community as the principal purpose for which the sentence is imposed, and may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
46 In the circumstances of this matter, the prosecution do not seek a disproportionate sentence and after due consideration, I do not intend to order a disproportionate sentence.
47 Pursuant to s.6E of the Sentencing Act 1991, every term of imprisonment imposed by the court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any other sentences of imprisonment imposed on the offender at the same time.
48 Yes, Mr Findlay, would you be upstanding please.
49 I order:
(a)In relation to Charge 1, involving arson, you are convicted and sentenced to four (4) months’ imprisonment. This is the base sentence on this indictment;
(b)In relation to Charge 2, involving the threat to kill Robert Berry, you are convicted and sentenced to a period of three (3) months’ imprisonment;
(c)In relation to Charge 3, involving the threat to kill Sarah Buchanan, you are convicted and sentenced to a period of three (3) months’ imprisonment;
(d)In relation to Charge 4, involving the threat to damage property for the purpose of causing Chantelle Lovell to fear that the said threat would be carried out, you are convicted and sentenced to two (2) months’ imprisonment.
50 The court directs that two (2) months of the sentence imposed on Charge 2, two (2) months of the sentence imposed on Charge 3, and one (1) month of the sentence imposed in relation to Charge 4, be served cumulatively upon each other and upon the sentence imposed on Charge 1. The total effective sentence is nine (9) months’ imprisonment.
51 I declare, pursuant to s6AAA of the Sentencing Act that save for your plea of guilty in relation to each of the charges I would have sentenced you to two years’ imprisonment.
52
The court declares that you have served a period of 249 days by way of
pre-sentence detention and such period of time is to be deducted administratively as time already served upon the sentence.
53 In relation to Charges 1, 2, 3 and 4, you are further sentenced to a community Correction order for a period of two years, after your release from prison.
54 I further order that the following conditions are to be added to the community corrections order:
(a)Pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment, including testing for alcohol abuse and/or dependency;
(b)Pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
(c)Pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors related your offending behaviour, including but not limited to anger management and gambling addiction;
(d)Pursuant to s.48E of the Sentencing Act, you are to be supervised and monitored and managed, as directed by the Secretary to the Department of Justice;
(e)Pursuant to s.48K of the Sentencing Act 1991, you are to be judicially monitored every three months and will be required to report to this court on 2 December 2015 at 10 am before me.
55 Furthermore, in relation to Charges 1, 2, and 3, the court orders, pursuant to s.464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth and/or blood samples for placement on the database. I must also inform you that at the time of the request, if you do not consent to the taking of the mouth scraping under the supervision of an authorised officer of the police force, then that sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
56 I direct that these sentencing reasons be referred to the Department of Justice and the Department of Health and Human Services. I note that the correspondence from the Department of Health and Human Services indicates that you will be able to access various services from Disability Services over the duration of your community corrections order. I direct that there be communication between the Department of Justice and the Department of Health and Human Services in order that you can obtain access to such disability services and, in particular, undergo further testing in relation to your acquired brain injury. It is important that there be communication between both organisations in order to optimise conditions for you.
57 Mr Findlay, you probably have not taken all of that in. It is a fair bit I said. What it effectively means, you have got a number of days left in prison, not very many at all. I think it might be another week or so, or six days or something, and then you are going to be released. You are going to be released on the basis of a community corrections order, and that is like a sentence. It will be explained to you. That is like a sentence, but you are out in the community and you can largely live your own life, but you must comply with the conditions, which you will be told about in more detail.
58 The idea of the conditions, Mr Findlay, is to help you. You have to understand that. It is to help you. And indeed, if you do not abide by those conditions, you may be brought back before me for breach of those conditions and that would mean I would have to take another view of how I am going to deal with you.
59 As you probably appreciate, and I hope you understand, the offences involved here are very, very serious, and normally if would not be "if", it would be just how long you would be going to prison for. But given the circumstances of your case, the time served effectively, a little bit longer, a few days, you will be out in the community, hopefully living with Mr Pratt, I think it is, and hopefully Disability Services will help you to get on with your life. But you have to take stock, Mr Findlay, you just cannot go round making threats to kill to people. If you do that again, you will be back here so quickly and it will be far, far more serious this time. Do you understand?
60 OFFENDER: I understand, Your Honour.
61 HIS HONOUR: All right. Yes, look, it has just been pointed out to me, just probably a notice on my part. In relation to what I said about the need for a forensic procedure, I said Charges 1, 2 and 3, I will make that 1, 2, 3 and 4.
62 Anything counsel want to raise with me?
63 MR LIASKUS: Your Honour, just a very minor point. You referred to arson, contrary to 192 of the Crimes Act, it's 197.
64 HIS HONOUR: Where was this, sorry?
65 MR LIASKUS: You were reading from the indictment, I think. My ears heard you saying, "Arson, contrary to s.192 of the Crimes Act", it's just 197, just a very small matter.
66 HIS HONOUR: Sorry.
67 MR LIASKUS: Charge 1 on the indictment.
68 HIS HONOUR: Is that the arson, is it?
69 MR LIASKUS: Yes.
70 HIS HONOUR: And it should be 197, should it?
71 MR LIASKUS: Yes, sub-section - - -
72 HIS HONOUR: Section 197(1)?
73 MR LIASKUS: That is right.
74 HIS HONOUR: Yes, well I amend that accordingly in relation to the very beginning of the comments, it is 197(1).
75 Anything else to be raised?
76 MS LAMOVIE: No.
77 HIS HONOUR: Yes, your client will have to sign various documentation.
78 MS LAMOVIE: Yes, Your Honour.
79 HIS HONOUR: And please make it plain to him, I thought on balance it has got to be best just to allow a few days to get Mr Pratt ready to take things on and I think the last thing we wanted today, him placed on a tram, being sent off to nowhere, who knows, so.
80 MS LAMOVIE: Yes.
81 HIS HONOUR: But I haven't worked it out precisely. It is about six or seven days or something.
82 MS LAMOVIE: Yes, Your Honour.
83 HIS HONOUR: We will adjourn temporarily.
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