Director of Public Prosecutions v Fox

[2013] VCC 2135

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR-13-00068

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONNA MARIE FOX

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September and 12 November 2013
DATE OF SENTENCE:	14 November 2013
CASE MAY BE CITED AS:	DPP v Fox
MEDIUM NEUTRAL CITATION:	[2013] VCC 2135

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Arson – Intellectual disability – Depression – Protection of the community

Sentence: Total Effective Sentence – 4 years’ imprisonment with a non-parole period of 2 years’ imprisonment –Ancillary order forensic sample – Pre-sentence detention 125 days – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Darcy (plea) Ms C. Teague (sentence)	Solicitor for Office Public Prosecutions
For the Accused	Ms S. Locke	Doogue O’Brien George

HER HONOUR:

1       Donna Marie Fox, you have pleaded guilty to three charges of arson.  The maximum penalty for this offence is 15 years' imprisonment. 

2       Mr Darcy opened the matter on behalf of the prosecution as follows.

3       In July 2011, you were living at a unit in Moreland Street, Footscray.  I was told you were unhappy with the accommodation and that you were sick of waiting for other accommodation from the Department of Human Services (hereafter “DHS”).  A friend of yours, Anna Dolinsky, had spoken to you about your accommodation in the months leading up to the day of the offending.  You said to her that you were unhappy with where you were living and had been seriously thinking about burning the premises down.  You said you did not want to live there anymore and you were sick of waiting for a transfer to another house.  Anna Dolinsky cautioned you against burning the house down.  On 12 July 2011, you telephoned Ms Dolinsky and told her that you had just burned the house down. 

4       You had lived at the premises with four cats, three dogs and two rabbits.  The house was single storey, brick veneer house and owned by DHS.

5       At about 10.30pm on 12 July 2011, a fire had occurred at your premises.  It originated in the front lounge room/bedroom of the premises.  Investigators from the Metropolitan Fire Brigade viewed the fire as suspicious.  The front room was found to have a high fuel loading but it was not alleged that you had deliberately brought this about.  Three of your cats and two rabbits died in the fire, whilst other animals were saved by neighbours and fire fighters.  It was not possible to forensically examine the premises as they were deemed to be unstable following the fire and the building was subsequently demolished.

6       A written statement was obtained from you. A number of inconsistencies with your version of events were detected however.  It emerged from inquiries that you had lived at two previous addresses where house fires had taken place.  Consequently, the Arson and Explosives Squad commenced an operation code named “Outline”, during which an undercover operative was engaged to speak to you.

7       The undercover operative, whose code name was Zoe Duran, spoke to you on 10 May 2012 about the investigation.  These conversations were covertly recorded.  Amongst other things, you said that you had lived at three houses where there had been fires which you had started.  You said that you had not started the last house fire, but later admitted to lighting all three fires.  You also said that you believed Anna Dolinsky had informed police about your involvement in the fires.  In addition to admitting to Zoe about the fires, you said that you had also told your past counsellor, Gail Evans, and your present counsel, Jenny Kursma, about your involvement in these fires.

8       In relation to the fire that is the subject of Charge 1, this occurred on 9 April 2003.  You claimed that the reason for this fire was that you wished to commit suicide.  You told Ms Duran that you had poured Jim Beam whisky on the carpet in the front room and set fire to it with a cigarette lighter. 

9       The fire which is the subject of Charge 2 occurred on 14 July 2005.  This occurred in circumstances where you had wanted to commit suicide, you said, because you had just lost custody of your children.  You said that you had poured Jim Beam whisky over the carpet on this occasion as well and lit it with a cigarette lighter. 

10      You said that the fire which is the subject of Charge 3 was also lit in circumstances where you said you had attempted to commit suicide.  You said that you set fire to the curtains in the bedroom and claimed that you had just been involved in a fight with Anna Dolinsky and felt that nobody needed you anymore.

11      You were interviewed at the Sunshine Police Station on 10 May 2012.  An independent third person was present during the interview and essentially, you made a “no comment” response to the questions you were asked.

12      In each case, the properties concerned were owned by DHS. The value of property destroyed was as follows.

·     In respect of Charge 1 – $180,000;

·     In respect of Charge 2 – $40,000; and

·     In respect of Charge 3 – $400,000.

13      Ms Fox, your offending is most serious and must be denounced and a just punishment must be imposed in all of the circumstances.  One of the relevant circumstances to which I must have regard was your state of mental health, both at the time that you committed these offences and now. I will come to this a little later on. In light of this offending and your lengthy criminal history, I must place considerable weight on the need to protect the community.  You have prior convictions going back to February 1991 for a whole range of offences including dishonesty offences, offences for violence, breaches of Court orders and in 1997 and 1998, you have been dealt with for criminal damage, although that the penalties imposed in relation to those particular convictions were minimal.

14      As to your motivation for starting the fires, it would appear that on each of the occasions there were some stressful things happening in your life and it may well be that you were feeling suicidal on each of these occasions, notwithstanding that on the third occasion you may also have wanted to escape the house in which you were living. In a bid to further comprehend your mental state at the time of each of these occurrences, I made an order for a Forensicare report at the original plea hearing as I was not entirely satisfied with the report from Ms Lechner which addressed various matters relevant to your moral culpability and your likely condition into the future.  That report is now to hand and the author, Professor Paul Mullen, has had the benefit of extensive material provided by your counsel as well as further material provided at the Crown’s suggestion which promised to be more indicative of your mental state at the time you committed the first and third offences for which I now sentence you. 

15      Despite reporting that you were suicidal at the time of each of the fires, you did not suffer any injury as a result of these, save perhaps for burns which you said you suffered to your hands and feet or foot at the time you committed Charge 3.  However, there is no independent evidence of this.  On the other hand it does appear that in 2003, 2005 and 2011 at about the time that you committed these offences, you were encountering difficulties of a most challenging nature. 

16      Before the fire which gives rise to Charge 1, your daughters had been removed from your care and placed in foster care with one of those children being placed in the care of your sister-in-law, who had become your best friend.  You felt hurt and betrayed by this, even though it may well be that your friend took over the care of this child in a bid to help you.  I was told that for this reason and for other stressful reasons, you felt you could not cope and it was in those circumstances that you set fire to the house in which you were then living in a bid to take your life. 

17      It would appear that you had been seeing a psychiatrist and were prescribed anti-depressant and mood stabilising medication prior to committing the offence.  However, it appears you had not been taking your medication for about two weeks before committing this offence.  I note that you were also on a Justice Plan leading up to this period; but it would appear that this had not sufficed to contain your impulses in the absence of medication and ongoing supervision, the Justice Plan having apparently expired on 25 March 2003, the month before you committed the first offence.

18      I take into account your very sad background which involves a most dysfunctional upbringing in which you were sexually abused by one of your brothers.  Another of your brothers went on to sexually abuse one of your own children, who was also placed in foster care on a number of occasions in the period leading up to the commission of the first offence.

19      Your mother was a factory worker and your father drove taxis and buses and installed car windscreens.  He was an alcoholic and there was domestic violence between your parents.  When your parents worked, you were left in the care of your older brother who sexually abused all of the children, except for one of your brothers.  You were the victim of this abuse until you were sixteen years old when you ran away from home.  You told Ms Lechner, psychologist, that this brother fathered your oldest child who was subsequently adopted out.  You apparently reported the abuse to police but there was not enough evidence for the matter to proceed to Court.  I must say this is somewhat surprising in circumstances where there is a child who is the product of the sexual abuse.  Be that as it may however.

20      You were told to leave home when you were seventeen years old and placed in a boarding house by DHS for twelve months.  The personal chronology which was provided reveals that you worked in a child care centre for a while.  However, your uncontrollable mood swings and tendency to be disruptive and violent meant that you could no longer be employed there. 

21      In 1993 your child, Annemarie, was born eight weeks premature and you struggled to cope with looking after her.  You and the father of that child, Mr Jacobs, separated for two years and Mr Jacobs commenced using drugs such as heroin.  In 1996, you and Mr Jacobs reconciled and that same year, your child, Toni-Leigh, was born. 

22      Your mood swings had not been diagnosed as at that time and you had no medication or counselling to help with these.  This put stress on your relationship with Mr Jacobs and his drug use increased to the point where you were apparently told by DHS that if you stayed with him you would lose custody of your children.  This led to you separating from him when your second child Toni-Leigh with Mr Jacobs was about 18 months old.  You moved into a refuge. 

23      About one month later, Mr Jacobs was assaulted and killed during an argument with a workmate which led to the offender’s incarceration for murder.  Mr Jacobs' death had a profound impact upon you, leading to a deterioration in your mental health.  Between 1999 and 2003, you moved into Department of Housing accommodation in Mill Park and your daughter, Annemarie, displayed some serious behavioural problems.  This included letting her younger sister out of the house when you were asleep.  It was during that period that Annemarie was molested by your brother, Shane, and was placed into foster care on a number of occasions. 

24      In 2001, you worked as a cleaner for a short time and Toni-Leigh spent a good deal of time with your sister-in-law, Anna, who had become your best friend.  I have already talked about the events of 2003 which led to the first arson and I will not repeat them. It is understandable however that you were feeling immense strain at the time that you committed the first offence, especially in circumstances where you were not taking your medication. 

25      In 2005, the custody of Annemarie was given to a Karen Grief.  Your reaction to this was to attempt suicide by overdosing on medication, I was told.  On 14 July 2005, the second arson was committed.  I take into account that the damage to this particular property was limited.  In relation to the second arson, I was told that you had taken yourself off to sleep whilst the fire was engaged.  However, you were woken up by your cat and realised that it might die in the fire.  Your neighbour helped you put this fire out and the house was able to be repaired.  I accept that in relation to the second fire, you were again under a good deal of strain, having had your second child taken away from you.

26      I was told that in 2008, your oldest daughter came back into your care.  However, you found it very difficult to control her and were not coping.  It appears that your own life was spiralling out of control and involved gambling, smoking cannabis and stealing.  You were struggling with living in Footscray and believed it was a bad environment for your daughter who had been returned to you.  It was in this setting that you committed the third offence.

27      Again, it appears that you were under a good deal of strain at the time that you committed the third offence.

28      The overall pattern of your behaviour has been that when you are under strain you have reacted by setting fire to your accommodation, which is a concerning pattern.  It is also a most dangerous trend which you do not seem to fully appreciate. 

29      I was told that you are one five children and no longer have any contact with your siblings or your mother.  When your father died during the period leading up to the third arson, you did not even find out about this until a year later.

30      You attended Broadmeadows Special School when you were twelve years old and remained there until you were sixteen.  It was there that you met Michael Jacobs.  You have limited reading and writing skills to the point of being described as illiterate.  Ms Lechner assessed you to be in the mildly to moderately intellectually disabled range with 99.7 of the adult population performing better.  She found that you presented as low functioning, commensurate with these results, and found it hard to process and retain information, especially as it became more complex.  She found that it was difficult for you to generalise or transfer learning from one situation to another or to logically sequence cause and effect or consider perspectives other than your own.  She found that you had a limited capacity for problem solving and that your level of comprehension and expression was also limited. 

31      Ms Lechner found that you fell into the extreme range when assessed for symptoms of depression which resulted in a diagnosis of clinical depression when she interviewed you on 24 July 2013.  She said that you have had a previous diagnosis of bipolar mood disorder which is managed with a mood stabilising medication and you had also been prescribed an anti-depressant but with little improvement in your mood state, and an anti-psychotic agent.  She said that you live independently but struggled with most demands of everyday life and would benefit from ongoing involvement with Disability Client Services (hereafter “DCS”), personal counselling and psychiatric review.  Ms Lechner said that you presented with a complex clinical picture, that you have:

“… a mild intellectual disability, was the victim of chronic sexual abuse in … childhood and teenage years, has parlous mental health and no familial or social support networks.”

32      Ms Lechner went on to say that your offending behaviour, which she described as impulsive, appeared to be “representative of (your) inability to cope with emotional stress.”  She said that on the two occasions upon which she had assessed you, you had evidenced symptoms of major depression which contributed to your behavioural dis-regulation in terms of poor judgment and poor decision making.  She went on to say that you regret your offending behaviour but felt as though you had no real control over your actions in light of your high levels of emotional distress at the time.  She said:

“The combination of Ms Fox’s genuine cognitive limitations, mood disturbance, impulsivity and problems in regulating her emotional and behavioural responses to stress, significantly undermine her ability to effectively solve problems and to inhibit inappropriate impulses.”

33      Ms Lechner said that you were likely to find a custodial sentence difficult because of emotional and cognitive immaturity and would benefit from a team approach to interventions which she outlined.  She recommended that DCS become re-involved with you and a Justice Plan be considered.

34      Your counsel accepted that a term of imprisonment to be served immediately was justified in your case notwithstanding the report of Ms Lechner.  However, she submitted that a longer than usual parole period ought be involved so as to maximise your supervision within the community and minimise the stressful environment of prison.  Mr Darcy, who appeared for the Crown, agreed with this submission.  As I have indicated, I sought further assistance in relation to your mental state now and in the past when you committed the offences.  I was also concerned with the potential risk which you present of committing further offences if things became stressful in the future.

35      Professor Paul Mullens, forensic psychiatrist, was of the view that you suffered from an intellectual disability, but was in some doubt as to whether you suffered bipolar disorder. He said that you reported feelings of depression from time to time. He was unable however to pursue an examination of your mental state very far because of your intellectual limitations. At the time he assessed, you he found no signs of a lowered mood. You told him that when you are down you snap and you want to harm others and yourself. Professor Mullens said that it appeared that you may well have an unstable mood which was easily thrown into cheerfulness or despondency depending on your immediate environment. He noted that you were receiving various medications which may have also impacted on his examination of you and his findings. But, given those limitations, he did not find much in the way of evidence of a serious mental disorder. He noted that on each occasion that you offended you were intoxicated and was of the view that gross intoxication in combination with your intellectual difficulties led you to commit each of the offences. He said that your offending was the result of gross intoxication in someone, who at best, has difficulty in foreseeing the implications of her actions and is prone to impulsive and poor judgments. Of concern, you reported to him that you lit the third fire as you had gotten away with the first two so you thought you would light the third in order to move house. Your simplistic logic is disturbing and dangerous. You also said that you did not think carefully about what you were doing on any of the occasions you set fire to your premises; that you did not think you would get into trouble but just did it. Professor Mullens also noted that you have a long history of alcohol and drug abuse. He said that on each occasion that you offended you had consumed large quantities of whiskey and cannabis and had also probably taken prescription drugs, prescribed by your General Practitioner for Bipolar disorder. Matters such as these give me serious concern for the risk of you re-offending in the future.

36       On the other hand, I also take into account that your case manager, Jillian Stacker, who was in Court at the plea hearing and further plea hearing, and I see she is here today, has provided a brief report indicating the history of your involvement with DCS. She said that the service had been providing an uninterrupted phase of case management since the Justice Plan request was made in September 2010 and that throughout the period you had engaged positively with your allocated case manager in development of support plans.  She said that since the Justice Plan request in June 2012, you had shown a greater willingness to take part in recommendations made by DCS to address your offending behaviour. You maintained regular contact with your current DCS case manager, attending most scheduled appointments at the DHS Office in Footscray. You have experienced some memory problems in the past, but you are currently responding well to reminders about upcoming appointments and recognise the importance of attending psychological counselling.  Ms Stacker said that in recent months, you had shown increased awareness of the stressors in your life and how they impact on your mental health.  You had acknowledged the need for counselling support to help you resolve difficult situations when they arise and she said that you are capable of seeking support from services when you feel you require these.

37      I also factor in the report of Ms Leigh-Smith, psychologist, dated 7 June 2013. She has counselled you in 1999, 2011 and then you re-commenced sessions with her in June 2012, attending 24 out of the 30 scheduled sessions with her. These went up to May 2013, although I do not know which of these sessions you missed. She says however that you have engaged well in counselling sessions and said that you had begun to show an increased capacity to think rationally before reacting to stressful situations, and that you were more able to place conflict in relationships into context. She said that you needed ongoing and uninterrupted sessions to maintain the gains that you had made with her over the past 12 months. Unfortunately, despite the best efforts of DCS, you have not received any counselling whilst on remand. This is most regrettable, to say the least, and I stress for the benefit of Correctional Services that it is very important that you receive counselling urgently. With your consent, I intend to send some of the reports with which I have been provided, as well as a copy of my sentencing remarks to the relevant authority. I will also have my associate convey to the relevant officer in charge of this area in the prisons my concerns in this regard.

38      While your progress with Ms Leigh Smith and Ms Stacker gives me some cause for comfort, I am concerned that, in light of your history of offending and failure to adhere to previous mental health and treatment regimes, even with the benefit of support from DCS and other agencies, you may well continue to commit offences. I very much hope however that you do not. You have had a very hard life and a sad life but you must change your ways or else you will be spending longer and longer periods in gaol. That means that you have to behave yourself; stay away from alcohol and drugs and do what the counsellors tell you to do, especially when you are feeling depressed or stressed. Do you understand?

39      PRISONER:  Yes.

40      HER HONOUR:   Very well. Instead of turning to drugs or alcohol or committing criminal offences, if you are feeling depressed or stressed or angry, you must contact a counsellor straight away, who will help you to make good choices.

41      PRISONER:  (indistinct)

42      HER HONOUR:  You have got to listen to me, all right?  Very well.

43      Professor Mullens was of the view that upon being released from gaol you would require more intensive supervision and management than in the past. It is intended that upon your release on parole, DCS and DHS will engage in intensive planning with you, and ensure that you receive ongoing counselling and will have regular meetings with you. It is also intended that you will live at the place where you were living before you went into gaol. However, it is not planned that you be supervised in the way that Professor Mullens has recommended, which appears to be a resource issue. I must say that this does worry me a great deal, but I cannot warehouse you in gaol in a bid to ensure that you do not commit further offences. Indeed, in your case, it is important that you reconnect with counselling services in the community and adjust to living a law abiding life sooner rather than later. But I must also have regard to all relevant sentencing considerations in your case and the weight I must attach to these.

44      In light of your intellectual difficulties, notwithstanding your intoxication on each of the occasions you lit the fires, I am satisfied that your intellectual disability and depression, which I am satisfied that you were experiencing at the time, did impact upon your decisions to light the fires and I therefore allow for reduced moral culpability. I have also reduced, somewhat, the weight that I would otherwise place on specific deterrence and general deterrence. I impose a just punishment upon you and denounce your conduct in these circumstances. I am also satisfied that your intellectual deficits in combination with apparent bouts of depression, or at least lowered mood, will make time in gaol harder for you than for someone without these difficulties. On the other hand, I must place strong weight on the need to protect the community.

45      I take into account the proposals that were put forward to reintegrate you into the community, that is, the proposals in relation to accommodation and also the involvement with DCS and DHS who will do their very best to ensure that you receive ongoing counselling and management. 

46      Your Counsel properly conceded that an immediate custodial sentence was warranted, but submitted that a longer than usual parole period was appropriate in your case in a bid to have you continue to rehabilitate in the community. Mr Darcy, with his usual fairness, agreed that this was appropriate.  As he submitted, you and the community would be best served by the imposition of a longer than usual parole period.

47         Upon being asked to submit a sentencing range in your case, Mr Darcy said that a sentence of between 3 and 4 1/2  years with a minimum of between 2 and 3 years’ imprisonment was appropriate. As I did not actually ask your counsel to respond to the range at the further hearing, I took the step of having my associate give her this opportunity via email with the Crown copied in. She has submitted that a head sentence in the range of 3 to 4 years with a non-parole period of between 18 months to two years would be appropriate in your case, and urged me to impose a sentence towards the bottom of that range, in particular in relation to the non-parole period.

48      I have considered these submissions and have come to the view that the Crown range is appropriate, but I have concluded that a head sentence toward the top of the Crown range is necessary, while a non-parole period at the bottom of this range is also necessary.

49      Could you please stand up now, Ms Fox?

Ancillary orders

50      Firstly, I make an order for a forensic sample of saliva to be taken from your mouth by the use of a swab so that your DNA is kept on the police database for future investigations. I make the order because of the seriousness of these matters, because the order is not opposed and because it is in the public interest for such an order to be made. I have to warn you, as I do everyone, that if you do not co-operate with the officer who is authorised to conduct this procedure, he or she may use reasonable force to conduct the procedure.

51      In respect of all of the offences you are convicted and sentenced to:

52      Charge 1 -     2 years' imprisonment.

53      Charge 2 -     1 year’s imprisonment.

54      Charge 3 -     3 years'  imprisonment.  This will be the base sentence

55      I direct that 8 months of the sentence on Charge 1 and 4 months of the sentence on Charge 2 be served cumulatively with the base sentence, producing a total effective sentence of 4 years’ imprisonment and I direct that you serve 2 years’ imprisonment before becoming eligible for parole

56      If not for your pleas  of guilty I would have sentenced you to 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.

57      I declare that you have already served 125 days in gaol which will be counted as part of this sentence. 

58      Just take a seat for the minute thank you, Ms Fox.

59      Is there anything arising out of that?

60      COUNSEL:  No, Your Honour.

61      HER HONOUR:  Very well, thank you.  We will now have Ms Fox removed, thank you. 

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