Director of Public Prosecutions v Garrison (a pseudonym)
[2016] VCC 311
•18 March 2016
| Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN GARRISON[1] |
[1] The name of the Accused in this matter has been allocated a pseudonym to protect her identity pursuant to the s166(2)(b) of the Family Violence Protection Act 2008
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Warrnambool (sentence at Melbourne) |
| DATE OF HEARING: | 11 March 2016 |
| DATE OF SENTENCE: | 18 March 2016 |
| CASE MAY BE CITED AS: | DPP v Garrison (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 311 |
REASONS FOR SENTENCE
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Subject:Sentencing; arson and summary charges of breaching Family Violence Safety Notice
Catchwords: Plea of guilty; long criminal history but no arson; traumatic childhood contributing to alcohol abuse
Legislation Cited: Sentencing Act 1991 (Vic) s 6AAA
Cases Cited:
Sentence:TES: 195 days imprisonment (declared reckoned served) followed by CCO for 2 years with unpaid community work and treatment programs
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | OPP |
| For the Offender | Ms Z. Broughton | VLA |
HER HONOUR:
1Stephen Garrison, you have pleaded guilty to a charge of arson. You have also agreed to have heard in this court and pleaded guilty to a summary charge of contravening a family violence safety notice. The maximum penalty for arson is 15 years' imprisonment and for the summary charge, it is two years' imprisonment or a fine of 240 penalty units.
2You have also admitted to a quite lengthy criminal history to which I shall refer later.
3These charges arise out of events on 28 and 29 August 2015, that is last year. At that time, you were living in Warrnambool in a house at 17 Churchill Avenue which you rented from the Department of Health and Human Services. Living with you there for the preceding three to four months had been Ms Anita Walls[2] with whom you had been in a relationship for approximately that period, and whom you had known for some time longer.
[2] The name of the victim in this matter has been allocated a pseudonym to protect her identity pursuant to s166(2)(b) of the the Family Violence Protection Act 2008
4On the night of Friday 28 August last year, you and Ms Walls had a dispute which resulted in police attending and arresting you. During the argument, you had required Ms Walls to move out of that house. You were interviewed that night at Warrnambool police station, charged with assault and criminal damage, and were bailed on your agreeing to abide by the conditions of a Family Violence Safety Notice which included a condition that you not approach, telephone, contact or be within 5 metres of Ms Walls.
5A friend came to collect you from the police station and you asked to be driven to another address where Ms Walls's sister lived. You were not aware at the time you asked to go to that address that Ms Walls had in fact gone to her sister's house in the meantime and would be there. However, by the time you knocked on the front door, you had seen her car and realised she would be there.
6You spoke to Ms Walls's brother-in-law who came to the door. You gave him the DVD of your recorded interview with police and a copy of the charges against you, and asked him to give these to Ms Anita Walls, and ask for her to listen to them.
7Your attendance there, once you had seen Ms Walls's car, constituted a breach of the family violence safety notice which had been served on you at the police station not long before, as you were not to attend within 5 metres of her. That is the basis of the summary charge.
8After that, you returned to your home in Churchill Avenue and entered alone. You apparently became angry and felt overwhelmed and frustrated. You realised that this relationship with Ms Walls was over, and you were again alone, and felt overwhelmed by the state of the house which needed cleaning.
9Using a cigarette lighter, you set fire to a paper envelope, placed that envelope in a cane basket in the spare bedroom and stood watching for the fire to take hold. When it did, you closed the door to the room, released the dogs and puppies from the house, left the house by the back door and walked away.
10You later acknowledged that your intention was for the house to burn. As a result of the fire, the house was very extensively damaged to the extent that the estimated cost of reinstatement - if that were to occur - would be about $73,500. It is unlikely that the Department will reinstate the house as it was, given its age and form of construction.
11Also destroyed in the fire was property and belongings owned by Ms Walls, including her clothing, stereo, some jewellery, photos of her children, and a number of small ornaments. I assume that belongings of yours were also destroyed and that was part of your intention.
12You walked to a friend's place and stayed there the rest of the night. Then at approximately 11.45 am on Saturday 29 August, you went to Warrnambool police station. You went of your own volition, apparently intending to report that there had been an accidental fire in your house, or that it had been started by an intruder. In the meantime, police had attended at the fire, ascertained that you were not home and also that you had been arrested that previous evening in relation to a domestic dispute. A crime scene was established at the burnt house to enable forensic examination.
13When you attended at the police station that morning, you were placed under arrest and cautioned and told your rights. Apparently initially when police told you that they wanted to question you in relation to a fire at 17 Churchill Avenue, you responded that you did not know about it. However they then asked for your clothes for a forensic examination for smoke or fire accelerant, and you immediately acknowledged that you had lit the fire. You were then interviewed about that.
14I have not seen the video recording but have read the transcript of your recorded interview with police. In relation to the visit to Ms Walls's sister's house, you said that you did not purposely set out to breach the notice. I note that it was a safety notice, not an intervention order. You said you did not know that she was there when you asked to be driven there, but acknowledged that before you went and knocked on the door, you knew she was there because you had seen her car was out the front. You did not ask to enter the house and did not confront or even see Ms Walls there.
15You told police that you were not drug affected at the time of lighting the fire but had been drinking alcohol, although you had not drunk anymore between leaving the police station after being arrested for the domestic dispute and returning home and lighting the fire.
16Asked about why you lit the fire, you at first said you did not know why you had done it. Then you said you just wanted it all to burn and go away. "Just too much stuff" and you could never keep up with the cleaning, or Anita had never done it. You denied that you set the fire as a form of getting back at her because it was, after all, your house. You said you had not set fire to any of her stuff and did not intend to destroy her property, but acknowledged that there was some of her property there. You described how the fire had been lit and where. You said you had never previously lit a fire there but had threatened to burn yourself and put petrol all over yourself and burn yourself in the house, that threat having been made sometime the previous year.
17You had not used any accelerant on this occasion. You said you had not thought about whether if the fire spread, it could burn or potentially harm the house of a neighbour. You said you felt stupid about what you had done.
18I accept, having read your comments in the interview, that they reflect remorse on your part, regret for what you had done and an acknowledgment that it had been stupid and you could barely understand yourself why you had done it.
19I must assess the seriousness of this offence and your role in it. There are a number of features of your offence which make it objectively serious. The maximum penalty of 15 year’s imprisonment for arson reflects how seriously Parliament on behalf of the community regards offences of arson generally.
20You set fire to, and substantially destroyed, a house. It was public housing owned by a government department, and the fact that you have virtually destroyed it deprived not only you personally of being able to live in it again but anyone else. The financial loss to the department, even if it has not carried out the repairs, is a drain on public funds that would otherwise be available to assist with providing housing to people in a variety of circumstances including someone such as you.
21The estimated costs of repairs of $73,500 may not be as high a monetary loss as in some other potential cases of burning down houses, and indeed it was submitted on your behalf that being under $100,000 the matter could have been dealt with in the Magistrates' Court . However, you in effect destroyed a two bedroom house and I do not view that as causing a low level of damage. The fact that you destroyed some of Ms Walls's property including, as I understand it, photographs, was also not a minimal aspect of the damage caused. Further, although I accept that you did not think of it at the time, a fire in the house at night had the potential to spread and endanger neighbours or their property.
22However, I accept that the fire was unplanned and was a spontaneous decision by you in the context of feeling alone, angry and upset at the fact that your relationship had just ended, and overwhelmed by finding yourself alone and unable to cope with your house and its contents. You did not use any accelerant and there was no effort to enlarge or amplify the effects of the fire that you lit. You knew that there was no other person in the house at the time and you let out the dogs so that they would not be harmed.
23Taking these various features into account, I assess the level of seriousness looked at objectively as at a moderate level of seriousness for the crime of arson.
24In relation to the summary charge, I regard the offence as at a relatively low level of seriousness for that offence. I accept that when you went to the house where the protected person Anita Walls had gone, you did not know that she was there, and your contravention arises from not having left immediately you saw her car and realised that she was there. You did not confront or have any physical contact with her, and did not even ask to see her. You did ask her brother-in-law to hand on the paperwork and recorded interview from the recent dispute between the two of you, which as I understand it had brought your relationship with her to an end.
25I would not regard the circumstances of this offence - this summary offence - as serious enough to require a significant sentence but in light of it being heard together with the other matter, you will hear that I impose a separate sentence for it.
26You were arrested on 29 August last year and have remained in custody since then. Most of that time will count as pre-sentence detention towards the sentence I impose, however seven days during that time cannot count as pre-sentence detention as it was served as a sentence imposed in the Magistrates' Court for the offence of criminal damage arising from your dispute with Ms Walls on the Friday night. I am told that the charge of assault was withdrawn. I take into account the total period you will be serving in custody, so I take into account that extra seven days as arising out of events that all occurred on the same day into the early hours of the following morning. I take into account the total time you will serve on your sentence in relation to all of the offences committed that day.
27As I have said, you cooperated with police and made extensive admissions. You also indicated pleas of guilty at an early stage, and are entitled to considerable credit for that. There is considerable utilitarian value in saving the community the time and cost of disputed hearings, and witnesses the inconvenience and stress of having to give evidence in court. You also saved the need for extensive forensic examination of this fire scene.
28I also take your cooperation and plea of guilty to reflect a willingness to facilitate the course of justice, and to accept personal responsibility for your actions. In your case, I also accept that your plea of guilty reflects genuine remorse for your offending. I shall tell you after I announce your sentence what it would have been if you had not pleaded guilty.
29I turn now to your personal background and circumstances. You are now aged 43 and were 42 at the time of the offending.
30Your childhood and youth was particularly disrupted and harsh, and goes a long way to explain your criminal history and your current situation. You were born in Tasmania where your parents separated when you were aged only two. Initially you lived with your mother but she could not cope with you, and you were sent to live at an early age with your father and his parents, he having moved to rural Victoria. By age five, you were sent back to live with your mother, and although you say that that next period when you were living on a dairy farm with her and your uncle, and enjoyed the environment of activities on the farm, you were not kept there for very long. Nevertheless, it remains a period that you remember as enjoyable and one of the rare occasions of enjoyment in your early childhood.
31Your behaviour was difficult and you were sent back to your father, however after you arrived back and were living with him, he was then sent to prison. School was apparently very difficult for you as you had various behavioural problems that led to you struggling to make friends, and you were bullied and teased at school. It was against that and the family background that when you were aged 8, you made an attempt at suicide. I am told that you tried to hang yourself on monkey bars at school. That you could feel so desperate at that age to do that is a sad reflection on how you saw yourself and your life at that stage.
32Although you were not aware of it at the time or until considerably later, your father and his parents are of Aboriginal descent, although you were not brought up to have that cultural connection. When your father was sent to prison on the occasion I have indicated, you lived for a time with your grandparents - his parents - on a small rural property, but they struggled to cope with you and your behaviour, and you were then sent into foster care.
33After foster care, that, at about age 11, you were sent to Roland Boys' Home in Sheffield, Tasmania where you remained until aged 17. You describe abuse of both physical and sexual nature there, being mercilessly teased, and overall you describe this as a very bleak period in your life. There was clearly also emotional abuse to which I will come shortly. You described the only bright time coming in your last year there when, at age 17, you gained an award for being the most improved in your grades and you were proud of this and it gave you some sense of achievement and self-respect.
34Last year you reported the abuse you had undergone at Roland Boys' Home to the Royal Commission into Institutional Responses to Child Sexual Abuse. I have read a letter recording that report, and that you have been given some contact points which may be available for you to obtain support and counselling for experiences arising out of that abuse. Through the Royal Commission, you have also been given contact with the Royal Commission's Aboriginal and Torres Strait Islander Cultural Liaison Officer.
35I am told that during your entire time at Roland Boys' Home, your mother never visited. Your maternal grandparents did visit, but you felt extremely lonely and the lack of interest of your mother compounded your feelings of your own worthlessness and isolation.
36After Roland, you were moved to a different school, but at age 18, you commenced an apprenticeship on a farming property. You enjoyed the outdoor work there but this placement ceased due to your forming a relationship with your employer's daughter.
37I am told that then, at age 18, having had to leave the farming apprenticeship in Tasmania, you moved to Victoria. You struggled to find employment and were homeless for some period. Apparently over the following years you travelled quite widely in Victoria partly as a result of finding that you had Aboriginal relatives in various places.
38It was in about that period that your criminal history began. You were before a Magistrates' Court in Shepparton in 1994 on charges of burglary and theft, and were placed on a community-based order with unpaid community work to be performed and apparently completed all of that.
39Next you were before Echuca Magistrates' Court for a number of counts of theft and theft of a motor vehicle. I am told the theft of the motor vehicle was one which you stole and then lived in for some three months. When found, there were also other goods that you had stolen.
40You lived in and around Ballarat for some time where you met up with other family members. Notwithstanding meeting extensive numbers of relatives, you still did not feel settled, and you moved back to Melbourne where you met Sarah, with whom you formed a relationship and had three children. Tragically, the oldest child died of cancer aged 6. You have told
Dr Zimmerman that you suffered severe depression after that, and I am told that you have still not been able to face visiting your son's grave. Following that tragedy, your relationship with Sarah ended, and apparently you do not see your other two children that you had with her.41You returned to the Maryborough area. Subsequently, you met and formed a relationship with the woman named Mandy with whom you had three more children, now all living in Mildura.
42Between 2002 and 2005, you had multiple court appearances in Maryborough before the Magistrates' Court, mainly for offences of dishonesty and some for driving offences but nothing in the nature of arson. I also note no offences for violence although there were some involving possession of unregistered firearms. In that regard, for one of those there is a notation on the record that a suspended sentence was not restored despite being breached because the pistol found had its barrel sealed and was missing a cylinder when found in the lake. It was also noted that you had a psychiatric history and had recently changed your medication.
43What is noticeable about your criminal record is that although not to be proud of, it was not continuous. In 2005, there was one court appearance only for possession and use of cannabis, and you received a good behaviour bond with the condition that you abstain totally from alcohol and drugs. The next court appearance was almost four years later for theft, failing to answer bail and suspected possession of proceeds of crime, for all of which you were fined, reflecting that the magistrate did not regard it as a high level of seriousness for those offences. There was nothing further until the offences before me, which occurred in 2015.
44With your difficult family and personal history, periods of homelessness, and history of substance abuse, you appear to have managed to stay out of criminal trouble for sustained periods including more than five years leading up to the incidents last year. That indicates that you are capable of doing so - that is, staying out of criminal trouble - and in my view is a positive sign for your future, although I do note that you were apparently using illegal drugs about once a fortnight or so before the current offending.
45I am told that you have a long history of alcohol abuse and of using cannabis, and in more recent years intermittently amphetamines and before this incident, “Ice”. Apparently you tried each of alcohol and cannabis for the first time at the age of eight. That is the same age as when you first attempted suicide and I am aware it is also the age you were when your father was imprisoned. It shows that your substance abuse is not merely the development from voluntary indulgence in these substances, such as for so-called recreational or social use. There was clearly a most unfortunate and difficult background which rendered you vulnerable and so unstable by the age of eight that this was not substance abuse starting for social reasons.
46In your circumstances and given the subsequent physical, emotional and sexual abuse experienced in the boys' home between the ages of 11 and 17, I accept your case to be one of that limited number of cases where it can be fairly said that your abuse of alcohol and cannabis was so linked with your deprived background that it should not be regarded as a result of voluntary commencement of substance abuse. That aspect does provide some mitigation of those parts of your offending which relate to alcohol or drug abuse.
47In this case, that is relevant to your past criminal history. It would also be relevant to the extent that your actions in lighting the fire were linked to any ongoing effect of alcohol on you on the night in question, although the extent of that effect and in the influence it had on your lighting of the fire is not clear in terms of your immediately being drunk at the time although it is discussed by Dr Zimmerman as part of the ongoing alcohol abuse at the time.
48You also have a history of mental health problems. I have read a psychiatric report from Dr Zimmerman who assessed you while on remand. Apart from setting out details of your history, Dr Zimmerman noted that your presentation in interview with her displayed depression and at times you became tearful, but there was no evident anxiety, irritability or hostility. There was no sign of psychotic disorder. She thought at times you struggled to maintain focus and attention. She did not have time to assess your cognitive skills and recommended a neuropsychological testing which has since occurred.
49Dr Zimmerman's opinion was that at the time of the offending, you were suffering from depression and alcohol dependence, and that there would appear to have been a deterioration in your mental state for the month and a half prior to the offending in the context of yet another failing relationship, that being with Ms Walls. In that period, your drinking had increased and you had ceased taking your antidepressant medication.
50She considered that there was a nexus between your depressive state, feelings of hopelessness and your sense that no matter what you did, misfortune caught up with you, and she considered that this affected your judgement in bringing you to the point of lighting the fire. She noted that your time in custody, being as it has been in the protection unit at the prison, has been particularly difficult for you because of your own memories of abuse, and you are amongst prisoners who have or are alleged to have perpetrated abuse on children.
51She strongly recommended that you undergo neuropsychological testing to ascertain whether there was alcohol related brain injury, which was not the subsequent finding. Dr Zimmerman believed that a long term residential rehabilitation program may offer you the best chance of addressing your lifelong resort to alcohol, and she also considered that you require mental health treatment both to monitor your mood and medication. She considered just as importantly it was needed to provide a stable relationship with a counsellor - that is, mental health treatment so that a counsellor would be able to provide support in challenging some of your negative and self-destructive patterns of understanding.
52She found you highly motivated to be able to play a significant role as father to your children in Mildura. She noted the good use of supports in Warrnambool that you had made in the past and were making in the prison, and that would assist you in creating a more positive life for you from this time onwards.
53You were also assessed while on remand through Forensicare's mobile forensic mental health service. It arranged a neuropsychological assessment which was conducted by Ming-Yung Hsieh. That report also sets out considerable background information including about your general health as well as mental health history. You were at the time of the assessment taking Risperidone, and antidepressant medication, prescribed while you were in prison, and that may have had some effect on the final testing session.
54Although it was stated that there were limitations on the neuropsychological assessment carried out, the interpretation of the findings was that your previous capacity was in the low average to average range overall. It was noted that you were tested five months after being in custody without the ongoing influence of alcohol or illicit drugs, and there was found to be mild to moderate reduction in information processing speed and some aspects of executive functioning. However, your task performance suggested preserved functioning in the majority of cognitive areas. There is much more detail set out of this in the report which I shall not repeat here.
55You reported to the assessor an increased awareness of memory problems since going into custody, and that together with the mild reduction in executive function was felt likely to reflect the impact of your anxiety and stress levels in prison and perhaps also the medications prescribed there.
56There were a number of recommendations and strategies set out in the report to manage your cognitive limitations. I am impressed by the fact that there was also a report in layperson's rather than technical language sent to you to describe those. In particular, it was felt that you are likely to require extra time to take in and process information, and that changes should be introduced gradually so as not to overload you with new information. It was recommended also that you should be supported with structure and routine, and that there be as much as possible integration of various service providers and other significant people in your life. It was felt that you would learn best watching others and practising the adaptive coping skills with support, and with verbal or written summary at the end of sessions of doing that.
57I make the comment, as I have already implied, that I am very impressed with the coordinated approach which has been taken while you have been in custody to assessing your particular needs and explaining them to you. Hopefully that will optimise the prospects of you receiving helpful and appropriate professional and social support to help you establish yourself stably in the community on your release from prison. Hopefully it will also convince you, through understanding why these measures are being taken, that they are in your best interests.
58A further aspect of this coordination and support has been provided. I have been informed of this through the evidence both by letter and given orally during the hearing from Ms Serra of Anglicare. She outlined your history with that organisation from your original contact about three years ago when presenting for emergency help, when you were homeless after coming to Warrnambool. She also outlined ongoing contact she personally and others have had with you at the drop-in centre where you became a regular. Attendance there was able to help break down some of your social isolation by letting you mix and chat with people and just have the ability to recognise some friendly faces.
59Ms Serra’s contact with you over the last three years has fluctuated, but she was aware that connections with agencies specific to helping you, such as into housing, had increased your coping skills, but then when the time available from those agencies ceased, your coping skills suffered. She described the “Get Out For Good” program now operated in Warrnambool by her agency. She has been keeping in touch with you by writing letters to you while you have been in prison. Indeed, she said she had visited you in custody in the cells in Warrnambool just after your arrest.
60She confirmed that she and others - as part of the Get Out For Good program- intend to be taking up a friendship role of support for you when you get out of prison including visiting agencies with you, helping you look for flats and encouraging you, and challenging you and your behaviour if needed.
61I also note that you have used your time in custody constructively, applying yourself to programs both self-help ones and educational ones, that you have been able to access while there. You have also been appointed a yard billet at your unit which I take to reflect that you have earned some trust from the authorities.
62I also take into account that your time in custody has been spent in a protection unit, making it necessarily more restrictive than it would have been if you had been in the general prison population on remand. I am told you are there because of a false rumour that there had been children in the house when you set fire to it, which put you at some risk in the general prison population. For this reason, I regard your time in custody so far as having been more onerous than the number of days which will be reckoned served, and so I take that into account also in mitigation.
63I have this morning been told also that you have - I was told for three to four months - been in 22-hour lockdown because of the consequences at the Metropolitan Remand Centre of riots that occurred before you got there. I am aware of those conditions applying in a number of circumstances but it has been too late to confirm them today. As I canvassed with your barrister, I have already taken into account that you have been serving your time in custody in more restrictive so more onerous conditions than the number of days would count as, but I also see you having had access to some programs and helpful courses and having been accessed by some very helpful professional assessments for your treatment.
64There can be no question that the charge of arson is a serious one, and as I have already explained, I assessed the circumstances of your offence as in the moderate range of seriousness when viewed objectively for the crime of arson. However, I do accept that there is evidence of you having been suffering increasing depression as well as the effects of alcohol dependence in the weeks leading up to this incident, culminating in your returning to your house feeling overwhelmingly despondent at realising that another relationship had failed, you were again alone, and felt overwhelmed by the amount of what you call "stuff" and untidiness of the house.
65As your counsel described, your action was totally irrational in setting fire to that house as it was your home and a home you had been allocated after previous homelessness, and it contained all of your belongings. That does reflect an irrationality about your actions on the day, not that you were not responsible in law for them but it is consistent with you having been overwhelmed by your mental state and history at the time.
66There is also the report of Dr Singh as to your diagnoses in the past. In light of the psychiatric and psychological evidence, I accept that they were affected by your mental state at the time and this means that your moral culpability - meaning your personal blameworthiness - should be regarded as much reduced in this case.
67Taken together with your genuinely harsh and deprived childhood with undoubted ongoing effects on you over many years of instability in life, I am of the view that the need for both general and specific deterrence as sentencing factors in this case should be significantly moderated. By general deterrence, I mean the need to send the message to others tempted to engage in this sort of behaviour that if they do so, they can expect it to attract a stern punishment. There is a reduction of that need given your very particular and unusually harsh and deprived background. By specific deterrence, I mean to send the message to you to stop or try to stop you from committing an offence of this nature again.
68There is also a need for public denunciation of conduct of this type and particularly because it was public housing that was burnt. However again in the context of your personal circumstances, that needs to be taken in the context of how you came to be in that position to do that.
69Notwithstanding that you have a considerable prior criminal history, I am of the view that although it must still be guarded, there are several very positive signs that your rehabilitation has real prospects of succeeding on your release from prison. Your criminal history was not as constant as might have been expected from someone with your background and history, and you managed to stay out of the criminal justice system for sustained periods including almost six years before these events. That is consistent with Ms Serra saying that you were doing so well, from what she observed, between her first contact with you in 2013 until these events.
70In light of your own resolve to try to address your problems as evidenced by what you have been doing in prison, and your expressed desire to do so to enable you to have a future role as a father to your children in Mildura, and hopefully your finding work to enable you to support yourself and family, I take that as another positive sign. If your rehabilitation can succeed, that will ultimately be not only in your own best interests but that of your children and the community in general, so in my view your rehabilitation should be an important although not the primary factor in your sentence.
71You have already served a little over six months in prison, which having been served mainly in the conditions I have already described, will have been more onerous for you, and that counts as considerable general and specific deterrence and punishment. The prosecution submitted that although release on a community corrections order - as I was urged to do by your counsel after imprisonment - was within a suitable sentencing range, the prosecution submitted that there should be further time spent in prison to adequately achieve sentencing purposes.
72I had you assessed for a Community Corrections Order. You were assessed as being of medium risk of reoffending on the assessment tool used, and also as suitable for a CCO with various conditions recommended. I note that it was recommended that for one particular condition to address the underlying issue of you having committed an offence of arson, for that type of program to be made available to you, you would need to be on a Community Corrections Order to last at least 18 months.
73I do not overlook the description by the Court of Appeal in Boulton's case of a Community Corrections Order being a real penalty - it is not simply an ability to supervise you after release but does count as a real penalty particularly if unpaid community work is a condition imposed. I also note from that same guideline judgment that the use of Community Corrections Orders in cases where rehabilitation is to play an important role should be considered and applied by courts if it can achieve sentencing purposes.
74I have closely considered how much longer would be appropriate to order you to remain in prison before being released on a CCO, as it seems to me that a CCO is very much suited to your present situation, with the supports that have been put in place, and the diagnoses and recommendations for future formal treatment and support.
75In light of the very impressive coordination that there has been to have you properly assessed, treated with medication, and arrangements for your support in the community made on your release, I have decided that all sentencing purposes can be adequately achieved without you having to serve any longer in prison than you have done already. So that the transition that has been planned can be put into operation and so as to proceed as constructively as you seem to currently want to do, I am going to make orders that mean you will be released from custody today.
76That does not mean that there is no further penalty to be imposed on you, because I intend to impose an unpaid community work condition in the Community Corrections Order that I am going to impose.
77Will you stand up now please, Mr Garrison.
78Stephen Garrison, on the charge of arson, you are convicted and sentenced to 195 days' imprisonment to be followed by a Community Corrections Order to last for two years.
79The conditions on the CCO will be that you perform 75 hours of unpaid community work, be subject to supervision, attend for assessment and treatment as directed for alcohol abuse, attend for assessment and treatment as directed for mental health issues, and attend such programs to reduce your reoffending as are directed. I note, although I cannot enforce it through an order, that what has been recommended is that you be referred to what is called SOATS.
80In addition to those conditions, all usual terms of a Community Corrections Order apply. I know these have been explained to you but I must repeat them again; I will do so briefly.
81Within two working days of today - that means by 4 pm next Tuesday, 22 March - you are to attend at Warrnambool Community Corrections Services office and the address will be given to you. During the whole course of the operation of the order - and that is two years - you are to obey all lawful instructions and directions of community corrections officers, to submit to visits by or with them. You are to report to them any change in the address of where you are living or where you are working within two clear working days of that occurring. Now there is going to be a bit of an issue about what address is going to go into that order which might take a little while to sort out but we will have to deal with that - but if there is any change after that, and in particular as it is likely to be transitional housing found for you in a hurry today, you will need to be notifying your community corrections officers of any change of address of where you are living within two working days of that occurring.
82Other terms of a Community Corrections Order mean that you must not leave the state of Victoria without prior permission of community corrections officers, and most importantly, you must not commit any other offences during that time. I just specify here, the taking of any illicit drugs will be an offence and therefore a breach of that order.
83If you breach that order either by not complying or by any further offending, you can expect to have contravention or breach proceedings taken in respect of that. That means you can expect to be brought back before the court, probably before me. A contravention of a community corrections order is itself an offence which can attract a separate penalty, but you need to be aware that the powers of the court if you breach or contravene a Community Corrections Order include that its conditions can be varied, such as extending it or increasing the conditions, or it can be cancelled and you can fall to be resentenced for the offence for which it is imposed. Whether that would in fact occur would depend on the circumstances of the contravention, how much had been completed satisfactorily of the order by then, and of course your own circumstances at the time, but you need to be aware that those are the potential consequences.
84I must ask you now, do you understand all the conditions and terms of that Community Corrections Order?
85OFFENDER: Yes, I do.
86HER HONOUR: Do you agree to comply with it?
87OFFENDER: Yes.
88HER HONOUR: All right. I declare as reckoned served 195 days of pre-sentence detention - it actually would be 196 because it would include today ‑ ‑ ‑
89MR TRIANDOS: Yes, Your Honour.
90HER HONOUR: But to be safe, I have made the term of imprisonment 195 so I only have to declare 195 and I do not think there is anything else pending for which the one can be utilised, but I want to make clear that it is declared so the sentence of imprisonment has been fully served.
91I was asked to make an order for a forensic sample to be taken from you. That enables your DNA to be placed on the State and Commonwealth database. That was not opposed and given the nature of the offence of arson and the circumstances of the offence, I am of the view that it should be made. The need to investigate forensic fires - if there has not been a prompt admission such as yours seems to have been –and the nature of this offence seems to me to warrant that your DNA be obtained and placed on the state's database. I confine the order to be what they call a scraping from the mouth but it is in fact a swab being rubbed on the inside of the cheek. It is not intrusive or painful in any way unless you resist. I do not think you will resist but I am obliged to warn you that if you do resist the taking of that sample, police can use reasonable force to take that sample.
92I was also asked to make a compensation order. What was sought was that you be ordered to pay the sum of $73,500 to the Department of Health and Community Services for the damage caused by reason of the fire to the property owned by that department. This order was opposed on your behalf. It certainly would be a crushing financial imposition on you, but in the end that is not the reason that I have decided not to make the order.
93There is no doubt that you caused extensive damage, costly damage to that house, and that that has repercussions for public funds because it was publicly owned property, and that inevitably means there is less in funds available for the housing of people in need of support by public housing. However, what has been provided to me is an estimate of the notional cost of repairing the damaged parts of the building, whereas it is not planned to actually reinstate it - not planned for what seemed to be sensible reasons. When it comes to the appropriate measure of compensation, that is, the cost to be paid by a person responsible for causing the damage, in some circumstances the cost of reinstatement is entirely appropriate and is what should be awarded. However when the owner of the property does not intend to reinstate in the same form, there may be a genuine legal question as to what principles apply for the measure of compensation as there would be for civil damages, and quite often it is argued that the reduced market value of the property as a whole is the appropriate loss because of the lack of intention to reinstate in the same form.
94Without a full hearing, I would not be able to determine which of the several ways one could approach the quantification of the loss should be approached here, and therefore I am not prepared to make a compensation order for the specific amount that has been claimed. That is not to be critical of how it was estimated, but to indicate that in the circumstances I think that issue is subject to further debate as to what the appropriate quantification should be. Therefore, the Department could separately apply or sue you for an amount to represent its loss based on the same or some other quantification of its loss, but I am not prepared on this summary basis effectively - when I say summary basis, it is an ancillary order under the Sentencing Act - but I am not prepared to make the order that was sought at this stage.
95I state for the purposes of s.6AAA of the Sentencing Act as I am obliged to do what your sentence would have been if you had not pleaded guilty but had been found guilty after a trial on the same charge. It is always an artificial exercise and in many ways more so here because some of what has impressed me and convinced me to not require you to spend longer in prison is the coordinated assessment and steps towards your future needs that has been undergone by you willingly, recognising your own fault in this offending, and that has been undergone while you have been awaiting your sentence having pleaded guilty early. So the artificiality is even greater, but I can only approach it on the basis that had all your other background circumstances been the same, but you had been found guilty after a trial of this offence, the sentence I would have imposed would have been two years' imprisonment followed by a CCO for 12 months with no further - with no unpaid community work but with the same rehabilitative conditions.
96I also need to sentence you on the summary charge. I find that charge proven and I am going to impose what in some ways is a nominal penalty because I am not sure that I can impose an aggregate sentence even though it was committed on the same day because it is a summary charge. I find the charge proven and I impose a separate CCO to last for one month, the only condition being supervision and I direct that that CCO be served concurrently with the CCO that I have imposed on the charge of arson.
97MS BROUGHTON: As Your Honour pleases.
98HER HONOUR: Have I covered everything I needed to?
99MR TRIANDOS: Yes, is that with conviction, that charge, Your Honour?
100HER HONOUR: No.
101MR TRIANDOS: Your Honour pleases.
102HER HONOUR: I explained earlier that I thought it was not a - there are a number of reasons why it was at a low level of seriousness and not intended when he set off to go there. So, yes, all right, no conviction on that one. There will be a conviction on the CCO for arson.
103MR TRIANDOS: Yes, Your Honour.
104HER HONOUR: You can take a seat, Mr Garrison, it's - I realise the time. I have another sentence coming up that needs some further consideration but I will remain while the orders are done because that needs to be done.
105I have a difficulty about the address. The system still has the 17 Churchill Street, Warrnambool address. It clearly won't be that one.
106MS BROUGHTON: No, it will not be that one. Whether - yes, if the address of Anglicare could be given - and a slightly similar case I've had something like that before or if Your Honour ‑ ‑ ‑
107HER HONOUR: I think it's going to have to be that.
108MS BROUGHTON: Yes, I think so, yes.
109HER HONOUR: Provided Mr Garrison does what he's directed to do which is to attend by 4 pm on Tuesday ‑ ‑ ‑
110MS BROUGHTON: Yes.
111HER HONOUR: ‑ ‑ ‑ he should be able to report to the community corrections officers what his then current address is.
112MS BROUGHTON: Yes.
113HER HONOUR: And of course report any change in the future so I think if we can have it - do we have an address for Anglicare in Warrnambool?
114MS BROUGHTON: We do.
115HER HONOUR: It's next door to the court, isn't it?
116MS BROUGHTON: Next door to the court, so of course I don't have their address on their ‑ ‑ ‑
117HER HONOUR: They don't have the - it's Koroit Street Warrnambool ‑ ‑ ‑
118MS BROUGHTON: The court is 218 Kuroit ‑ ‑ ‑
119HER HONOUR: ‑ ‑ ‑ not Bendigo, sorry, Kuroit Street Warrnambool.
120MS BROUGHTON: Yes. Yes, I know the court's 218. I can certainly google it, Your Honour.
121HER HONOUR: 230?
122MS BROUGHTON: Excellent.
123HER HONOUR: Is that the court or the ‑ ‑ ‑
124ASSOCIATE: No, that's ‑ ‑ ‑
125HER HONOUR: That's Anglicare?
126MS BROUGHTON: Excellent.
127MR TRIANDOS: 230.
128MS BROUGHTON: Very helpful.
129HER HONOUR: I'm not sure whether Anglicare like taking that responsibility but I think in these circumstances, I accept that there's been an active support group ready to receive Mr Garrison back there and ‑ ‑ ‑
130MS BROUGHTON: Yes, yes.
131HER HONOUR: ‑ ‑ ‑ there were - and I think it's the only way we can do it. It's hard enough to get these changed in the system without not knowing what the address would be.
132MS BROUGHTON: Yes.
133HER HONOUR: All right, I'm just checking the next one.
134Yes, I've made certain of the conditions including the supervision last for the full two years not a more limited period with the longer CCO. I've done that deliberately given the recommendations that a structured, ordered regime with some ongoing supervision is recommended for Mr Garrison. I am also well aware that - or so far as the 75 hours of unpaid community work's concerned, can be left to be done over that period. The sooner he does it, he's not going to be asked to do more.
135MS BROUGHTON: Yes.
136HER HONOUR: But also it leaves us flexibility if he's busy attending the other programs ‑ ‑ ‑
137MS BROUGHTON: Yes.
138HER HONOUR: ‑ ‑ ‑ and also I'm aware with supervision that if the community corrections service's officers feel it's unnecessary to be frequent supervision, they'll simply adjust the times and the appointment times and stretch them out towards the end if it's not felt there needs to be more regular supervision.
139MS BROUGHTON: Yes, yes. Thank you.
140HER HONOUR: All right, now, subject only to that change of address.
141All right, those orders have been checked, Mr Garrison, by counsel. My Associate will bring it to you, you're going to be asked to sign but take your time to read. We've explained - I've explained it ‑ ‑ ‑
142OFFENDER: Yeah.
143HER HONOUR: ‑ ‑ ‑ and I think your counsel might approach and if you have any questions for her about them.
144MS BROUGHTON: Thank you, Your Honour.
145(Community corrections order signed and acknowledged.)
146HER HONOUR: All right, I've signed all of the orders. There's multiple, lots of copying that has to be done - coordinated by my Associate but it's - as I understand it, Mr Garrison has to be taken downstairs prior to his release to be processed.
147MS BROUGHTON: Yes.
148HER HONOUR: And there's still time for him to get the train tonight?
149MR TRIANDOS: (Indistinct words).
150MS BROUGHTON: There is afternoon ‑ ‑ ‑
151HER HONOUR: It's 10 to 6, is it, or?
152MS BROUGHTON: Yes, I think there is ‑ ‑ ‑
153HER HONOUR: Or - it's either 6.50 - it's either 5.50 or 6.50, I believe.
154MS BROUGHTON: Yes, there's one that ‑ ‑ ‑
155HER HONOUR: From here to - that's - leave from Warrnambool. The one from here is about 6 o'clock-ish.
156MS BROUGHTON: Yes, so I'll be (indistinct words) now, I'll be getting the voucher from the Salvation Army and ‑ ‑ ‑
157HER HONOUR: Yes. Much coordination has gone into the effort to assist you in this transition, Mr Garrison, and I can only say I trust you take advantage of the opportunity and I hope I don't see you back here.
158OFFENDER: You won't, thank you.
159HER HONOUR: All right. Now just before I adjourn the court, can we cease the connection to Warrnambool or are they - we have.
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