Director of Public Prosecutions v Kingston

[2018] VCC 1310

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01243

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW JAMES KINGSTON

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2018
DATE OF SENTENCE:	21 August 2018
CASE MAY BE CITED AS:	DPP v Kingston
MEDIUM NEUTRAL CITATION:	[2018] VCC 1310

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Intentionally causing a bushfire; early plea of guilty; lack of sophistication in offending; relevant prior offending; protection of the community; major depressive disorder; alcohol abuse; impaired mental functioning moderating general and specific deterrence.

Legislation Cited:                   Crimes Act 1958 (Vic)

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Tsiaris [1996] 1 VR 398  

Sentence:  Community Correction Order for period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Mr M. Turner	Michaelson Lawyers & Associates

HIS HONOUR:

1Matthew James Kingston, you have pleaded guilty to one charge of intentionally causing a bushfire contrary to s.201A of the Crimes Act 1958 (Vic). The offence to which you have pleaded guilty rolls up three separate fires lit in the Gillieston area, late on the night of 9 March 2017 and into the early hours of 10 March 2017. The maximum penalty for this offence is 15 years imprisonment.

2Miss MacDougall who appeared on behalf of the Director of Public Prosecutions tendered a summary of prosecution opening on the plea, which sets out in detail the circumstances of your offending.  In summary, those circumstances are that at 11.24 pm on 9 March 2017, volunteer firefighters attached to the Tatura Country Fire Authority received notification of a grass and scrub fire situated at Tatura, Undera Road.  On attendance, they set about extinguishing the fire.  One of the firefighters Peter Bevan was approached by you, he asked if you had called the fire in to which you responded "No".  You then tried to give him your name.  Mr Bevan could not understand you as you spoke and he noted that you were slurring and smelled strongly of alcohol.  As the firefighters continued to put out the fire, you left the scene in your car travelling north.

3Shortly afterwards at 11.57 pm, a report of another small grass fire was received on Milford Road.  As two of the volunteer firefighters, Greg Marr and
George Taylor drove towards the Milford Road fire, you were seen standing behind your silver Holden Cruze Sedan which was parked on the side of the road about a kilometre from the fires.  The two firefighters pulled up alongside your vehicle and you introduced yourself as "Matt".  Mr Marr asked you whether you had seen anyone in the area and you responded that you had not.  You asked the firefighters what was going on and Mr Marr told you a few fires had been lit in the area.  Mr Marr also noticed that you smelled strongly of alcohol and that you were smoking a cigarette.  You told Mr Marr that you had had an argument with your wife and you were driving around to clear your head.  You were warned by Mr Marr that the police were on their way and that you should not be driving.  You responded by indicating that you had a sleeping bag in the car and you were going to sleep off the alcohol.

4At 12.28 am on 10 March, as firefighters were packing up at the Tutara Undera Road fire, they received a further report of a grass fire around the corner on McKenzie Road.  By this time, police were in attendance.  When the firefighters reached that third fire, they found that it had covered an area of approximately six by five metres and it was then put out.  Police located you near the intersection of McKenzie and Mulcahy Roads and when you were spoken to, you were again observed to be smelling strongly of alcohol and to appear quite effected by alcohol.  You told police:

"I've been driving around for a while.  I suffer from depression and mental health issues.  I will be honest with you, I'm shit faced, I'm fucked, I've had three quarters of a bottle of scotch, but I didn't light any fires.  I have priors for arson.  I know what it looks like, but I didn't do it". 

5You were arrested and underwent an evidentiary breath test, with the result indicating 0.094 per cent breath alcohol content.

6You were later interviewed by police and told them that you were living in Kyabram with your fiancé and your two children.  At about 5.30 pm on 9 March 2017, they had left Kyabram to travel to Melbourne and then onto a birthday celebration to be held in Adelaide. 

7After they left, you purchased a bottle of whiskey and began drinking at around 6.30 pm.  You say you began having what you told police were "Some very bad nasty thoughts going, spinning around in my head".  You said you were "Thinking about how shitty things were with your parents and brother and just felt like you wanted to act out".  You told police that you were under mental stress. 

8You said further in the interview that you had only lit one fire.  That you had used your cigarette lighter to light some grass on fire which seemed to take a while to start, so you stood and watched it burn for a short time before returning to your car and continuing to drive around.  You said you realised a whole large area could have gone up as a result of lighting the fire.  You said that you had lit the fire out of anger.

9An empty methylated spirits bottle was found on the floor with its lid missing.  You told police you had no intention of lighting any fires when you left home, despite taking the methylated spirits with you in the car.  An arson chemist who attended the fire scene has determined that at the time of the fires the weather conditions were calm and it was essentially windless.  He noted that as reported by the nearest bureau of meteorology reporting station, the temperature was approximately 15 to 16 degrees Celsius and the relative humidity was 72 to 77 per cent.

10In respect of the first fire at Tatura Undera Road, approximately 400 square metres of verge and paddock was burnt.  At the Milford Road fire, approximately 70 square metres of verge was burnt and at the McKenzie Road fire, approximately 40 square metres was burnt.  The area surrounding the three fires lit by you was a rural farming area, largely dairy farms and orchards, including occupied residences, shedding, machinery, livestock and stock feed.  Each of the fires lit by you had the potential to endanger the lives of people and livestock in the area and to cause damage to property and farming businesses.

Prior convictions

11On the plea, you admitted that you were before the Magistrates' Court at Dandenong on 29 May 2013, in respect of a number of charges of arson, attempted arson and reckless conduct endangering life, for which you were convicted and placed on a community corrections order for a period of two years, with treatment conditions.  These offences related to lighting or attempting to light a number of fires at the unit complex in which you were then living in Dandenong, between 3 October 2012 to 15 October 2012.  The fires were lit in various bins and a communal laundry.

12At the time of that offending, you told police your reasons for offending were "My mental health is out of control.  Alcohol and break up with my finance and attention seeking behaviour".  I note that it appears you complied with the conditions of your community corrections order, the order was completed without breach and that you did not further offend until the commission of these matters.

13Whilst you have those prior convictions for arson offences, you are not to be sentenced as a serious arson offender because you have not previously been sentenced to a term of imprisonment. 

Personal circumstances

14You were born on 17 November 1978.  You were 38 at the time of the offending and are now 39 years of age.  Although you reside alone in a caravan park in Springvale, your partner and two young children aged four and two live in Narre Warren and you maintain a close relationship with them. 

15Your finance, Yvette Nicholson, has provided a personal reference which describes the very positive relationship you have with the children and the improvements you have made since receiving treatment.  She states, "In my opinion, the treatment Matthew is receiving is having a positive influence and leading to changes to improve his quality of life and attitude". Ms Nicholson adds that in the long term, she wants you to play a significant role, both in your children's lives and indeed, in her life. 

16Both of your parents were members of the Armed Forces which meant that your family moved frequently during your childhood.  Eventually the family settled in Melbourne and you completed your secondary schooling at Wellington High School, obtaining your VCE.

17Following in the footsteps of your parents, you joined the army, but you injured your back only three months into your service period and left.  Thereafter you worked for Disability Services for about five years.  You then completed an apprenticeship at Bakers Delight as a baker.  In 2007, you joined the Air Force which your treating psychiatrist described as a distressing time in your life.  You experienced daily bullying from co-workers.  You were first diagnosed with clinical depression in about 2009 when you were still in the Air Force.  Evidently, there was also alcohol abuse and you were apparently also morbidly obese.

18You were admitted as an outpatient to psychiatric hospitals on two occasions whilst in the military when threatening suicide.  You were medically discharged in approximately 2010 and your disabilities have been such that you have not worked since. 

19I have been provided with two medical reports tendered on the plea.  The first was from Dr Richard Young, a consultant psychologist, who commenced treating you in June 2017.  You have been seeing him on a three to four weekly basis since that time.  He describes you as a patient who always keeps his appointments and that you are compliant with treatment.  Indeed he goes onto describe you as fully committed to the treatment regime he has put in place for you. 

20On reviewing your history and assessing your current state, Dr Young formed the view that you suffer from major depressive disorder and alcohol dependence.  Significantly, for the purposes of the plea, he states that:

"I note that the patient does not in my opinion, fulfil the diagnostic criteria for pyromania, 312.33, as outlined in the Diagnostic and Statistical Manual of Mental Disorders 5th Edition.  As he does not fulfil the diagnostic criteria of exhibiting fascination, curiosity, attraction to fire and its situational contexts and his fire setting appears to have occurred when he was angry and heavily intoxicated from alcohol consumption".

21Dr Young says with respect to your offending:

"At the time of the offending, it would appear from the patient's reported clinical history that he simply did not have the skills to deal with depression, anger, frustration and anxiety effectively, and inappropriately used alcohol to cope with such symptoms.  The alcohol in turn would undoubtedly have adversely impacted his impulse control and judgment, contributing to the alleged fire setting behaviours".

22Dr Young puts your prognosis as being "Good": 

"The patient is in a far better frame of mind, an improved life circumstance now compared to the time of the alleged offending.  The patient now is actively involved in an appropriate treatment regime with myself, a psychiatrist, a VVCS counsellor monthly, a drug and alcohol counsellor.  The patient has also completed the Forensicare anger management course and he's fully compliant with his medication regime".

23As to how you might experience a term of imprisonment, Dr Young states:

"If this patient is sentenced to a custodial sentence, the impact of incarceration will be significant and adversely impact the patient.  Due to his obesity, general demeanour and prior significant bullying, he is highly likely to be subjected to severe and sustained abuse/bullying in prison.  In that scenario, his depressive illness will dramatically deteriorate and he is likely to become suicidal once again and require suicide watch".

24Your treating psychiatrist's report reaches similar conclusions. 
Dr Remy Glowinski started treating you in April 2017, after your release from custody.  You were admitted to Delmont Private Hospital initially, and thereafter you have seen him on a monthly basis.  He states:

"Matthew's psychological condition improved as an outpatient with treatment being a combination of group psychotherapy, individual consultations and an increase in his antidepressant medication.  Since discharge, Matthew's psychiatric state has been stable.  He has consistently attended appointments and been active in his treatment.  He has reported being abstinent from alcohol for some months.  He attended the Forensicare anger management program.  There have not been signs of a depressive relapse".

25Dr Glowinski concludes by saying:

"The impression I formed is that Matthew has a significant psychological and personality vulnerabilities, with a sense of insecure relationship attachment and a tendency to be especially sensitive to perceptions of rejection associated with difficulties in independently managing the associated negative emotions. I think that a diagnosis of major depressive disorder is reasonable, noting that environmental stressors and psychological vulnerabilities clearly play a large role in the depressive episodes”.

26Dr Glowinski formed the view that in this current treatment regime, the likelihood of recidivism is significantly reduced.  In my view, an additional protective factor for you is the fact that you have significant practical support in the community.

Submissions

27Mr Bruce Davis gave impressive oral evidence on your plea.  He, and volunteers of other RSL branches have been assisting you in practical ways, such as helping you to obtain your entitlements from the Department of Veterans' Affairs and also in respect of matters such as accommodation, financial support and supervision.  That support will continue.  Mr Davis describes you as having improved “a hundred per cent” since you were arrested in relation to this matter.  I accept Mr Davis' evidence. It is well supported by the medical evidence.  I note that you indicated a preparedness to plead guilty to all three acts of arson at a very early stage in proceedings, and that of course merits a substantial sentencing discount.

28Mr Turner who appeared on your behalf submitted that what was appropriate here, in terms of disposition, was what he described as being a therapeutic disposition.  Miss MacDougall on behalf of the Crown emphasised that general deterrence, specific deterrence and protection of the community were important sentencing considerations in this case.  She submitted that a combined sentence of imprisonment, with a community corrections order was open, however, it was submitted that the 22 days that you have already served with respect to pre-sentence detention would not be an adequate period of time before being placed on a community corrections order.

Analysis

29In my view, the principles set out in the decisions of R v Verdins & Ors (2007) 16 VR 269 and before that in R v Tsiaris [1996] 1 VR 398 are engaged in your case. There is, in my view, a realistic connection between the longstanding major depressive disorder and associated impairment and the offending. Your behaviour at the scene of these fires, in interacting with police and firefighters in a somewhat bizarre fashion, appears to me to be consistent with Dr Young's findings as to your impaired impulse control and your impaired judgment.

30I conclude that there was, at the time of the offending, a degree of impaired mental functioning.  There is a basis therefore to moderate general deterrence and specific deterrence.  I further accept Dr Young's concerns as to the adverse impact custody is likely to have on you.  On the question of protection of the community, I am satisfied that I can appropriately address that sentencing purpose through the imposition of a community corrections order, that is to commence immediately.

31Your current treatment regime is comprehensive and your compliance with it, and the progress you have made in respect of it, leads me to the view that the best means of ensuring community protection in your case is to mandate the continuation of that regime in the community.  To monitor your compliance, I will require in imposing the order that you come back before me during the course of the order, for the purposes of judicial monitoring.  I am anxious that your commitment to treatment does not waiver. 

32Accordingly, in respect of this charge, you will be convicted and with your consent, placed on a community corrections order, for a period of eighteen months with condition that are directed towards your supervision, your treatment and rehabilitation, in addition to judicial monitoring.

33Before proceeding Mr Kingston, I need to explain a couple of things to you.  The first thing I need to do is tell you what the conditions of this order or this proposed order are.  It is an order that will commence today and it will end in February of 2020.  During that time, you must not commit another offence, for which you could be imprisoned. 

34You must comply with any obligation requirement prescribed by the sentencing regulations.  You must report and receive visits from a delegate of the Secretary of the Department of Justice.  You must report to the Community Corrections Centre within two clear working days of the order starting.  You must let the community corrections officer who supervises your case know within two clear working days of you changing your address or your job.  You must not leave the state of Victoria without permission and you must obey all lawful instructions and directions from the Office of Corrections.

35In addition to that, you will be under the supervision of a community corrections officer for a period of eighteen months.  You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital, residential facility as directed by the regional manager.  You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. 

36Further, you must reappear at court for review of your compliance with the order as directed by the court and you must attend for review on 30 January 2019 at 9.30 am, at the Melbourne County Court.  Now Mr Kingston there is a couple of matters I want to explain to you in respect of this.  The first of them is this, that this is an order that requires your consent.  In other words, you have to sign up to agreeing to these obligations and these obligations are onerous. 

37If you were not to comply with them, you would more than likely be brought back before me and I would be asked to resentence you with respect to the original offence.  In so doing, I would have to take into account the fact that you did not comply with the order as I had directed.  So clearly that would place you in a very very difficult position. 

38The next thing you should understand is that having an order of this kind is unusual in your circumstances in that you have already had such an order.  You were given an opportunity to complete a community corrections order and you did complete it for very similar offending, some five or six years ago.  The reality is this, in general, you would not receive another chance of that kind.  However, I am persuaded by reason of the treatment that you have undertaken and the progress that you have made in that treatment and the support that you have in the form of Mr Davis and others, that it is appropriate to place you on a further order of that kind.  I cannot stress to you enough the importance of you taking advantage of the opportunity you are being given. 

39Now with all of that in mind, you do not have to consent to this order.  But if you do, then you are taking on those obligations that I have explained.  First of all, do you understand what I have said thus far?

40OFFENDER:  Ah, yes sir, I do and I'm more than willing to participate.

41HIS HONOUR:  Very well.  Before Mr Kingston is invited to sign the proposed order, do counsel wish to say anything in respect of it?

42MR THOMAS:  No, Your Honour.

43MISS MacDOUGALL:  No, Your Honour.

44HIS HONOUR:  Thank you.  If you could ask your client to come forward to the Bar table please Mr Turner.  The pre-sentence detention, I think I said twenty-two days.  It is either twenty-one or twenty-two.  Can counsel help me with that?

45MISS MacDOUGALL:  Twenty-two I believe, Your Honour.

46HIS HONOUR:  I do not intend to make a formal declaration.  I do not know that that is appropriate given that I am not imposing a term of imprisonment.  But these remarks should reflect the fact that I have taken the fact of the service of that period of time into account in imposing this order.  Are there any other matters arising?

47MR THOMAS:  No, Your Honour.

48MISS MacDOUGALL:  No, Your Honour.

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