Director of Public Prosecutions v Keating
[2022] VCC 1151
•19 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02628
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELIZABETH KEATING |
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JUDGE: | HER HONOUR JUDGE ELLIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2022 |
DATE OF SENTENCE: | 19 July 2022 |
CASE MAY BE CITED AS: | DPP v Keating |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1151 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: one charge of arson-plea of guilty- prior criminal history- good prospects of rehabilitation;
Legislation Cited: Crimes Act 1958 (Vic), Mental Health Act 2014 (Vic),
Sentencing Act 1991 (Vic);
Cases Cited:Phillips v Queen [2017] VSCA 313, R vVerdins [2007] VSCA 62, Worboyes v The Queen [2021] VSCA 169, DPP v Sadkowski [2016] VCC 1090, Boulton v The Queen [2014] VSCA 342;
Sentence: Community Correction Order for a period of 18 months with 70 hours of
unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Raimondo | Office of Public Prosecutions |
For the Accused | Ms L. Dubroja | James Dowsley & Associates |
Pages 1 - 1
HER HONOUR:
1Elizabeth Ann Keating, you have pleaded guilty to one charge of arson, contrary to ss197(1) and 197(6) of the Crimes Act 1958 (Vic), which carries a maximum penalty of 15 years imprisonment.
Circumstances of Offending
2The circumstances of your offending are set out in a detailed Summary of Prosecution Opening, marked as Exhibit A on the plea. The offending in this case took place on 18 September 2019.
3By way of background, you resided at 48 Moreton Street, Frankston North, and had done so for over 17 years. The property was public housing operated by the Department of Families, Fairness and Housing. Your daughter, Stephanie Keating, resided with you at the property. It was submitted on your behalf, and uncontradicted by the prosecution, that about a year prior to the offending, after you spent a few weeks assisting your parents with care, you returned to find Stephanie’s boyfriend, Mr Ben Williams, residing at your home. Initially you and Mr Williams got along well, however, over time, tension developed between the two of you. You believed Mr Williams frequently lied and that he did not contribute to the household.
4The living situation deteriorated quickly with Mr Williams and Stephanie engaging in frequent drug use. Mr Williams was not employed and was continually present at your home. He purportedly engaged in destructive behaviour, which included damaging your property, breaking windows and punching holes in the walls. Mr Williams was also violent towards your daughter.
5You demanded that Mr Williams leave your property on numerous occasions, however, Mr Williams would often refuse to do so. You phoned the police about Mr Williams in the lead-up to this offending. You were purportedly taken to hospital as a result of contacting the ambulance service on multiple occasions.
6On the evening of 17 September 2019 Stephanie was told by a friend that you had phoned him, saying you were going to burn the house down. At approximately 11:00pm Stephanie arrived at the home and observed that you were severely intoxicated. You believed that Mr Williams was in the back garden of the property. Stephanie told you that Mr Williams was not present but you were adamant that he was. You said, 'I don’t give a fuck, I’ll burn the house down'. You then appeared to calm down. Stephanie left the property approximately 20 minutes later. You told Stephanie to stay away from
Mr Williams and to keep safe.7After midnight on 18 September, you phoned triple 0 and requested an ambulance. Before ending the call you threatened to burn down your house. Police were dispatched to attend your home for a welfare check.
8Upon arriving at your property police observed your front door wide open and found you sitting in the living room. The smoke detector was sounding and the rear of the property was alight. Police evacuated the property. Once you were outside you asked police, 'Is he here? Is he here?'. When the police asked, 'Who?', you responded, 'Benjamin'. The fire brigade attended the property to extinguish the fire.
9The police detained you, pursuant to s351 of the Mental Health Act 2014 (Vic). At the time you disclosed to police that you lit the fire by lighting a cardboard box. You also stated that Mr Williams was causing issues and that you were afraid he would turn up to your house again. You were transported to Frankston Hospital for a mental health assessment. You were later taken to the Frankston police station and you were deemed unfit for interview. The attending police officers noted that you appeared heavily intoxicated, as you were slurring your words and smelt of liquor.
10A forensic officer attended the property to investigate the fire and located an empty fuel container outside in the backyard as well as a cigarette lighter, ash tray, cigarette butts and alcohol containers inside the house. The investigator concluded that the cause of the fire was most likely the ignition of combustible materials in the laundry. The investigator also concluded that direct ignition, by means of a cigarette lighter, was the most likely source of ignition. The quantum of the damage caused is $95,000.
11On 23 October 2019 you attended the Frankston Police Station to participate in a record of interview, where you made admissions to your offending. You denied that you intended to cause damage to the property. You noted that it was your intention to scare Mr Williams out of the home. You stated that the incident occurred on the spur of the moment and you denied any prior planning. When asked by police about whether you also wanted to burn yourself, you said, 'Well, that wouldn’t have mattered either would it? Least I would have been away from him'.
Victim Impact
12No victim impact statements were tendered on the plea.
Procedural History
13You were charged on 20 April 2021. The matter resolved at committal mention stage in the Magistrates Court; you indicated that you would enter a plea of guilty. There was a dispute regarding the quantum of damage caused, which was resolved at an Initial Directions Hearing on 20 January 2022. A plea hearing was heard in this court on 11 July 2022. I accept that your plea was entered at the earliest opportunity. You have not spent any time in custody for this or any other offending.
Prior Criminal History
14You have admitted a prior criminal history, which extends back to 1984. You have prior convictions for possession and use of drugs, driving offences, burglary and theft. You have been fined and received non-custodial dispositions in relation to these offences.
15On 19 November 2016 you were convicted and sentenced to a Community Correction Order for 12 months for driving related offences. I note that you were subsequently brought back before the Court in breach of that order. The breach was proven but no further penalty was imposed. I note that you were convicted and sentenced to another Community Correction Order on
27 November 2017 for drug related offences for a period of 15 months. You appear to have complied with that order.16On 9 February 2018 you were convicted at Frankston Magistrates Court of criminal damage and possession of methylamphetamine. You received an aggregate fine of $400. The criminal damage in this circumstance was not an arson offence. It related to you painting something on neighbouring premises.
Personal Circumstances
17Your personal circumstances were set out in comprehensive written submissions and articulated further by your counsel, Ms Dubroja, on the plea hearing. You were born in Victoria in July 1964 to parents, Catherine and Seth Bradford. You are the middle of three siblings. You reportedly experienced a happy upbringing and enjoyed a close relationship with your parents and siblings. Your brother, Glen Bradford, and your mother provided references in support of you, as tendered at the plea (Exhibits 5 and 7).
18You completed primary school in Thomastown and later attended Lalor Technical High School. You did not experience learning difficulties while at school, however, you left after completing Year 11. This coincided with the development of a relationship with your first significant partner. During this relationship you began to use drugs, specifically heroin, and you moved out of your parents’ home.
19You spent the next three years being transient and living with your boyfriend. Your heroin use increased during this period and you were also a victim of violence. This relationship ended when you were aged 20 and this coincides with your first engagement in criminal offending, for which you were sentenced in November 1984.
20You then moved to Alexandra to reside with your godparents and ceased heroin use. Shortly after this move, you met Brendan Keating and were later married. Together you had three daughters: Ash-Leigh, born in 1985; Danielle, born in 1987; and Stephanie, born in 1994.
21You daughters describe you as a supportive and involved mother. You were purportedly very engaged in your daughters’ schooling and after school activities when they were young. To this day you maintain a close relationship with your daughters and they remain supportive of you. They have each provided a reference letter, which were each tendered at the plea hearing (Exhibits 3, 6 and 8).
22Within your relationship with Brendan, you experienced physical violence, emotional abuse and controlling behaviours. In 1989 you relocated your family to Queensland for 12 months after an incident of physical violence where you were pushed out of a window of your house. You found it difficult to work during your relationship as your husband refused to obtain a driver’s license and you were required to drive him to his employment each day. The relationship broke down in 2000. Prior to the relationship ending, Brendan was diagnosed with terminal cancer and the frequency of physical violence had increased. He passed away in 2002.
23You were significantly financially impacted by the divorce and had difficulty in obtaining a rental property due to your limited work history. You relied on residing with friends for 18 months, prior to obtaining the Frankston North property, through public housing in 2003. Once you were stable in your property your youngest daughter, Stephanie, came to live with you, while your two eldest daughters resided with you at different times.
24In 2007 you commenced a new relationship, which was characterised by frequent violence. At the time, Stephanie went to live with your eldest daughter. This six month relationship ended after an episode of physical violence where you required hospitalisation for your injuries.
25In 2017 you had a stroke and had to undergo therapy over a number of months. Also during that year your eldest sister passed away. You and your sister were close and this would undoubtedly have been a distressing time for you.
26I have already set out the circumstances of your living arrangements at the Frankston North property with your daughter, Stephanie, and the impact that Ben Williams had on both your lives, resulting in you experiencing fear and anxiety.
27After the offending you spent one night in hospital followed by five weeks in crisis accommodation. You then moved in to live with your parents. Your fears about Mr Williams came to fruition on 28 December 2019 when your daughter, Stephanie, was hospitalised as a result of a serious assault inflicted by him upon her. Mr Williams was arrested on 1 January 2020 whilst attempting to visit your daughter at the hospital. He was sentenced to a term of imprisonment at the Melbourne County Court on a charge of recklessly causing injury. You became unwell with Legionnaires’ disease in January 2020 whilst at the hospital, caring for your daughter. Your condition was serious and you were placed in an induced coma for a period of time. Upon your release from hospital you returned to reside with your parents.
28Your father passed away in January 2021 and since that time you have been the sole carer of your mother. Your mother is in her 80s and as a result of a broken femur and the placement of metal rods in her leg, she has limited mobility. She is too unwell to undergo surgery. You assist her with transportation, shopping, cooking and cleaning.
Nature and Gravity of Offending
29The offence of arson is a serious one. As the prosecution points out, the lighting of a fire in a house in a residential area is an inherently dangerous act. It poses threats to any occupants of the house as well as neighbours and their property. Your offending was undoubtedly serious. You caused a considerable amount of damage to government housing to the value of $95,000. As a consequence, the house was demolished and the property sold and the funds directed back to the department. The destruction of property such as this deprives those requiring public housing of access to property, thus putting a substantial drain on public resources. It was fortunate that the fire was confined to your property alone and did not spread to neighbouring properties. It was able to be contained relatively quickly. Moreover, it is extremely fortunate that no one was injured or killed as a consequence of this fire, including yourself. The fire itself posed a significant risk to you, to the neighbouring properties and to emergency workers who attended at the premises.
30It is significant that you yourself contacted Emergency Services prior to lighting the fire, which enabled workers to attend and extinguish it quickly. As a consequence of this offence, not only was the home in which you had resided for 17 years, destroyed, but all of your personal belongings and those of your daughter, Stephanie, were also destroyed in the fire. The prosecution submits that this offending falls in the low to mid-range for this type of offending.
31As the Court of Appeal reiterated in Phillips v Queen[1], the seriousness with which the offence of arson is to be gauged is dictated only partially by the extent of the damage caused or the value, as well as the method by which the arson is accomplished. I accept that the offending was spontaneous, unsophisticated and did not involve the use of firebombs. There were no attempts to conceal the fact that you had caused the fire and, accordingly, the source of the fire was easy to detect.
[1] [2017] VSCA 313.
32As your counsel, Ms Dubroja, has pointed out, the fire was not a premeditated attempt to obtain financial benefits, to achieve financial gain, to instil fear in another person, or to conceal the commission of another offence, nor was it committed as an act of revenge. I accept that the commission of this offence is somewhat unique and arose in the context of you experiencing emotional distress, fear of your daughter’s partner returning to the address, and whilst you were inebriated.
33When interviewed by the police you did not attempt to minimise your behaviour. You made full admissions to lighting the fire, telling police that it was your intention to scare your daughter’s partner away. You said that he had in effect mentally tormented you and he just would not leave. Your interview with the police offers considerable insight as to your mental state at the time you lit the fire, albeit that you were not interviewed until some weeks later. You told police that you were beside yourself and you could not think, you could not do anything. You quite candidly said that you did not intend to cause damage but you wanted to burn Ben. Your concern about Mr Williams coming to the house was such that you appeared to have little or no regard for your own safety.
Mental Health
34Tendered on your plea was a psychiatric report prepared by consultant forensic psychiatrist, Dr Jacqueline Rakov, dated 6 July 2022. In Ms Rakov’s opinion, you developed depression and anxiety following the death of your ex-husband in 2002. You reported to Dr Rakov that your mental health deteriorated, particularly from 2017 to 2019, when your daughter became involved with substance use during her relationship with Mr Williams. You felt that Ben Williams was bringing undesirable drug users to the home and that they had eventually taken over your house. You reported that Mr Williams and his friends wrecked everything, had no respect and were actually squatting. They stole from you, verbally abused you and damaged property. The extent of this was such that you were having difficulty sleeping due to fears for your safety and with there being no locks on the bedroom doors.
35You reported to Dr Rakov that your mental state was perpetually heightened with anxiety. Mr Williams was often the basis for police attending at the home, and on the day of this offending police had attended to execute a warrant. You were experiencing significant torment. In Dr Rakov’s opinion you conveyed a sense of thinking without regard to the consequences simply because you wanted to be free of the torment.
36You were calling Emergency Services for assistance on a weekly basis.
Dr Rakov notes that you reported suicidal thoughts to Emergency Services a number of times but were not given any substantive assistance. Dr Rakov is of the view that you had substance use disorder at the time of the offending, which is currently in remission. Significantly, Dr Rakov is of the view that you developed an adjustment disorder. In Dr Rakov’s opinion, your offending behaviour was largely informed by the adjustment disorder you experienced as a result of your domestic abuse situation, in addition to the active influence of substance use disorder and acute intoxication.37Your counsel, understandably, does not submit that the principles enlightened in R vVerdins[2] has application here. Rather, it is submitted that your adjustment disorder was influenced by your substance use, which, coupled with your feelings of torment and distress, lead to the offending and that this provides a context for your conduct. I take these matters into account in this way.
[2][2007] VSCA 62.
38A number of character references were tendered on your behalf from your family and friends. They each speak highly of you as a kind, caring individual who was a hard-working parent. Your daughter, Ash-Leigh, said you were always a doting mother and that you instilled great values in your children, and actively supported their education. To your children, the family dynamic was a happy one and they viewed your relationship with their father in very positive terms. The relationship breakdown was difficult. You lost your husband and best friend when the two later commenced a relationship. The sadness that you experienced following your separation from your husband purportedly led to you increasing your consumption of alcohol.
39Clearly, you still have a loving and supporting relationship with all three of your daughters, albeit that your relationship with Stephanie has at times been fragile as a consequence of this offending. Ash-Leigh also described the controlling and intimidating behaviour exhibited by Ben Williams in his relationship with your daughter and, as a consequence, with you. Clearly this behaviour took its toll on you. As reported to Ash-Leigh, you became fearful that he was watching you and that he was going to kill you. You expressed to Ash-Leigh that you were having difficulty sleeping and you would often call her, needing reassurance.
Rehabilitation
40Since this offending, you have made considerable efforts to rehabilitate yourself. There was a lengthy delay between the offending in this matter and the date upon which you were charged. During that time your mental health has improved considerably and stabilised. Your situation has changed and you are now a full-time carer to your mother, with whom you are still residing. You are in receipt of medication for depression and you no longer use drugs. Your consumption of alcohol has reduced considerably. You are very engaged in the local community and you continue to work on your relationship with your family members.
41Your brother notes the enormous change in you and that he knows he can trust you in caring for your mother. You have expressed how very remorseful you are to your family and you have accepted responsibility for your actions.
Plea of Guilty and Remorse
42I take into account your plea of guilty. I accept that your plea was entered at the earliest opportunity. Although the question of the quantum of damage was outstanding for a period of time, you had always indicated your intention to plead guilty to this offence. By entering a plea of guilty you have spared the community the considerable expense of a trial. Your plea is of significant utilitarian value. It demonstrates a willingness to facilitate the course of justice. Your plea of guilty has an additional value in that was it was entered during the COVID-19 pandemic, during which the court has experienced a substantial backlog of trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen[3], a plea of guilty is worthy of greater weight in mitigation than a similar plea entered at a time when courts are not afflicted by the pandemics effects. As a consequence, your guilty plea should result in a perceptible amelioration of sentence. Your plea of guilty is also evidence of remorse.
[3][2021] VSCA 169.
Prospects of Rehabilitation
43Whilst you do have a limited prior criminal history, the most recent appearance from February 2018, appears to be the most relevant. There has been no further offending since this event in September 2019. In the intervening period since your arrest, your personal circumstances have changed for the better. As I have said, you have the support of your family, you care for your mother, you have engaged with the community and you no longer use drugs. In light of this I consider that you have very good prospects of rehabilitation. You appear to understand the impact of your offending and you have been described (by Lauren Byrne in a MHARS report) as a capable, motivated woman that has made significant changes to improve your quality of life and daily functioning, as well as to avoid any further contact with the criminal justice system.
Relevant Sentencing Factors
44In determining an appropriate sentence, I must have regard to various sentencing principles. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991(Vic), to take into account various factors when formulating an appropriate sentence in your case.
45In cases involving the offence of arson, general deterrence is ordinarily a significant sentencing consideration. Here, however, the prosecution agrees that general deterrence needs to be moderated due to your mental state at the time of the offending. I agree, having regard to the unusual circumstances of the arson and the motivation behind your conduct. Your counsel has referred me to a case of DPP v Sadkowski[4], a case in which, having regard to the somewhat unusual nature of the circumstances, the offender was placed on a community correction order. That case concerned an arson motivated by revenge.
[4] [2016] VCC 1090.
46Whilst specific deterrence is a consideration, I note the prosecution also submits that is has less relevance.
47Your counsel has submitted that sentencing principles could be achieved in this case through the imposition of a community correction order. The prosecution submits that whilst this is serious offending and would ordinarily demand the imposition of a term of imprisonment, in the circumstances of this case, a community correction order would be within range. Such an order, it is said, would best address general deterrence, protection of the community and your rehabilitation. Accordingly, I have had you assessed for a community correction order and you have been assessed as suitable.
48Ms Keating, this sort of offending would normally result in an immediate gaol sentence. However, given the unusual nature of your offending and your personal circumstances, I am of the view that sentencing principles can be adequately addressed through the imposition of a community correction order. As the Court of Appeal made clear in Bolton v the Queen[5], general deterrence can be affected by a community correction order even for relatively serious offences. As you have no doubt heard, conditions in custody, particularly during the global pandemic, have been very difficult and more restrictive than prior to the pandemic. I do not believe that it is in anyone’s interests for you to imprisoned. In my view, the community would be better served with your rehabilitation in the community.
[5][2014] VSCA 342.
49You will be given an opportunity to complete a community correction order but there will be conditions attached, which I will go through in a moment. If you do not comply with the conditions, if you were to commit any further offences, you would likely find yourself back before me and most likely I would need to re-sentence you for this offending.
Sentence
50On Charge 1 you will be convicted and placed on a Community Correction Order for a period of 18 months. There will be a number of conditions, including supervision and treatment and you will need to perform unpaid community work.
51The core conditions of a Community Corrections Order are that:
·you must not commit any other offence punishable by imprisonment during the next 18 months;
·you must comply with any and all obligations or requirements;
·you must report to and receive visits from Corrections;
·that you must report to your nearest designated Community Corrections Centre, which will be in Reservoir, within two clear working days from today. I suggest that you contact them today, and your legal representatives will be able to assist you with this;
·you must let a Community Correction officer know within two working days of a change of address or job;
·you must not leave Victoria without first getting permission;
·and you must obey all lawful instructions from Corrections.
52So these are the mandatory core conditions that attach to any Community Correction Order, and in addition to that, I am going to attach a number of other conditions, which I will go through now, and you will be provided with a copy of the order for you to read and for you to sign:
·you are to perform 70 hours of unpaid community work;
·you are to be under the supervision of a Community Corrections officer for a period of 18 months;
·you must undergo treatment and rehabilitation, including testing for drug and alcohol use as directed;
·you must attend and engage in programs to reduce offending behaviours as directed.
53Some of the hours of treatment and rehabilitation can be counted as hours for the purposes of unpaid community work. I am allowing up to 60 hours.
54Ms. Keating, I need to ask you whether or not you agree to abide by those conditions before the order can be put in place. I am going to ask you to be provided with a copy of the order and at this point in time do you understand the condition that I have set out?
55OFFENDER: Yes, Your Honour.
56HER HONOUR: Do you agree to abide by those conditions as I have set out?
57OFFENDER: Yes, Your Honour.
58HER HONOUR: As I have said, if you do not comply with the Community Correction Order conditions, if you were to commit any further offences, then the matter is likely to come back before me and you will need to be re-sentenced for the charge of arson, and possibly for the breach itself.
Section 6AAA
59I should indicate that but for your plea of guilty it is likely that I would have sentenced to you to a term of imprisonment to be served immediately, but taking into account your plea of guilty I am satisfied that a Community Correction Order is an appropriate disposition in this case.
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