Director of Public Prosecutions v Kinseley
[2016] VCC 1323
•7 September 2016 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00404
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS KINSELEY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 22 June and 31 August 2016 (Melbourne) | |
DATE OF SENTENCE: | 7 September 2016 (Melbourne) | |
CASE MAY BE CITED AS: | DPP v Kinseley | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1323 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J. Malobabic | Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Victoria Legal Aid |
HER HONOUR:
1 Travis Kinseley, you have pleaded guilty to one charge of arson. The maximum penalty applicable to that offence is 15 years’ imprisonment.
2 This crime arises out of events which took place on 12 November 2015. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that, in my opinion, the facts in this case are most serious and disturbing. I note also your prior criminal history which also involves an offence of arson.
3 I turn to a brief summary of your offending. At the time of this offending, you were 34 years of age, and at the time of sentence you are still 34.
4 The victims of your offending are Ernest and Rosalind Pyers. Mr Pyers and his wife were the owners of a property at Sailors Hill and had owned it for approximately 20 years. The property is in Hoaths Road and was insured with CGU to the value of $229,700. It was leased to you on 13 June 2015.
5 At approximately 10.00 am on 12 November 2015, Mr Pyers was working in his garden with his wife when he heard a woman loudly calling for help. Mr Pyers ran on to Hoaths Road and saw smoke and flames coming out of the windows of his rented property. Emergency Services were contacted.
6 At about 12.15 pm, police attended the Hoaths Road address to find members from the Country Fire Authority (CFA) present, with the fire already extinguished. The CFA investigator advised police the fire was suspicious as he had found two seats of fire with a “V” pattern.
7 The Hoaths Road address was totally destroyed by the fire.
8 At approximately 12.30 pm, you attended Daylesford Police Station of your own accord and made a statement in relation to the fire and your movements that morning. That statement is contained within the depositions. You said you had taken your children to school, withdrawn money and returned to the Hoaths Road address, where you then noticed smoke and flames inside the house. You said you left that address and drove around Ballarat, then to Kmart to buy new clothes before attending Daylesford Police Station to report the fire. You said you did not start the fire but that you panicked because you had previously been to prison and were a convicted arsonist.
9 At approximately 1.10 pm, police on the scene at the fire-destroyed property were notified you had made a statement and that you were on your way to the Hoaths Road address. You arrived shortly after and told police the Hoaths Road address had a history of electrical issues stating “the electricity has been sparking and going out”. You maintained at that time you did not start the fire.
10 You remained at the scene, speaking to detectives and showing them where the fire was when you first entered the house. The detectives did not believe your account was truthful and requested a receipt for the clothing you had purchased earlier that day at Kmart. They also requested the location of the clothing you were wearing that morning. That clothing was seized. You then made admissions to lighting the fire and were arrested.
11 Scientist, George Xydias, from the Victoria Police Forensic Services Centre, attended the Hoaths Road address and conducted an examination of the fire scene. He made a number of observations and formed various conclusions regarding the fire, referred to within the prosecution opening (paragraph 10).
12 In brief, he noted the fire had extensively and severely damaged the central to southern half of the residential dwelling, with more pronounced levels of burning across two distinct regions of the south-western half of the house. He concluded it was likely flammable liquid was present in the central passageway and the lounge room, with no suggestion of the presence of flammable liquid in any of the lesser damaged rooms.
13 In Mr Xydias’ opinion, the damage was consistent with the presence of a small amount of flammable liquid (petrol in this case) with no indication the fires were electrical or otherwise accidental in nature. He concluded the fires were probably ignited directly by a match or cigarette lighter.
14 You were taken to Daylesford Police Station and interviewed. In that interview regarding the fire, you said:
“Well, I lit it and, yeah, doused some fuel around and just lit up and I feel remorseful – like bad about it, but you know probably a lot of people are happy that it’s gone, that house.”
You also said:
“I tried to get it going but it didn’t sort of take so then I took off.
I checked up on it and it wasn’t going so I grabbed the fuel and just doused it around and took off.”
15 When asked about how the fire started, you said:
“I pulled off a bloody power point thing and just … put something, a bit of cloth or something, in there.”
You said that when you first lit the fire “it was at about 20 to 9.00 or something”. That you then took the children to school before returning to the address at “probably 20 past 9.00 – half past 9.00”.
16 You said that when you got back:
“I just went to the front door … noticed it wasn’t sort of taking so I went out the back, got the fuel and came and just doused it round the place.”
You then said:
“I sort of sprayed it up on the couch in the lounge room, across the floor a bit and around into the bathroom and toilet – yeah. Back through that – that main part of the house.”
You then said that after this you headed to Creswick, where you washed your arms before attending Kmart to buy new clothes and razors to shave your arms.
17 Your reason for buying the clothes, you said, was to “get rid of the smoke smell”. You agreed you then went to Daylesford Police Station, and made a statement to police before you re-attended the Hoaths Road property.
18 When asked if you had considered contacting Triple Zero, you stated:
“I sort of thought about it but then I thought … it might not burn enough.”
You said:
“I pulled a smoke alarm off the roof just because it was going.”
19 In further elaboration regarding the circumstances of the fire, you said you put some fuel on some tissue paper around the switches and used a cigarette lighter to ignite it. You referred to “things have happened in that house”, but would not elaborate on that when asked in the interview.
20
There are victim impact statements before the Court from both Mr and
Mrs Pyers. It is clear your offending has significantly adversely impacted upon them, and I shall return to pass some remarks upon that shortly.
21 You have pleaded guilty to this charge. You are entitled to have that fact taken into account in your favour, and I do so. I note this matter resolved at the committal mention on 10 March 2016, that is, at the earliest opportunity, and I also note in the record of interview you then made admissions to this offending, although you initially made a statement to police in which you denied your involvement.
22 By your plea of guilty, the community has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Further, I take into account in your favour you intimated early your intention to plead guilty to this charge. Regarding your admissions to police in the record of interview, I of course note those, however remain concerned you denied this offending when you presented yourself to the police station and also when initially speaking to police at the house.
23 In the circumstances, I accept that your plea indicates some remorse for your offending, although I remain concerned about the level of your remorse, in particular, given your initial denial of the offending. I have no doubt you regret being caught, but I remain concerned about the genuineness of your remorse.
24 Your counsel at your original plea hearing date of 22 June 2016, Mr Exell, provided a written chronology and outline of your personal circumstances in documentation dated 17 June 2016.
25 However, at the commencement of your plea hearing on 22 June 2016, Mr Exell submitted he wished to obtain further psychiatric material following recent instructions from you and sought time for that report.
26 It was apparent he had at that stage two reports from a psychiatrist/ psychologist, which he said would be tendered on the plea, however wished to canvass your most recent instructions with the psychiatrist/psychologist to enable that further material to also be put before me.
27 I also discussed with counsel on 22 June that the prior criminal record appeared to be incomplete (and Mr Exell agreed). The prosecutor sought time to clarify your prior matters, and anticipated that might take "some time".
28 Regrettably, therefore, this plea hearing had to be adjourned to Melbourne, and the earliest opportunity being 31 August 2016. On that date counsel who then appeared on your behalf was Mr Miller. He also provided a written chronology and outline of submissions, and relied upon the submission of Mr Exell.
29 I turn to your prior criminal history.
30 You appeared at Melbourne County Court on 31 March 2006 on a charge of criminal damage by fire (arson) and a charge of theft. On the charge of arson, you were convicted and sentenced to five years’ imprisonment. On the theft, convicted and sentenced to six months’ imprisonment concurrent with the sentence imposed on the charge of arson. That resulted in a total effective sentence of five years’ imprisonment with a non-parole period of two years and six months being ordered.
31 You appealed that sentence to the Supreme Court on 29 November 2006 and the appeal was allowed. You were re-sentenced on the charge of arson to three years’ imprisonment and, on the charge of theft, six months’ imprisonment again concurrent, resulting in a total effective sentence of three years with a non-parole period of 18 months.
32 Details of your prior offending were contained within the sentencing remarks of his Honour Judge Duckett[1]). His Honour’s sentencing remarks should be read with these sentencing remarks.
[1] [2006] VCC 371
33 At the time of that offending you were affected by alcohol and amphetamines. You put a small can of petrol and a rag into a small haversack taken from a friend’s home and walked alone to a bakery. In the bakery you found some coins, then lit the fire with a cigarette lighter and left. After leaving the property you sat in a church for about 45 minutes, then returned to your friend’s home, had a shower and counted the money you had obtained. You were seen counting the money and burning the small plastic bags that held the coins. That money was spent on drugs and other items.
34 You told the police regarding that offending you did not intend to cause much damage to the bakery:
“I thought it would just burn a little bit. I never intended to even do the burglary. I resisted for over a month and never wanted to do it, but it was the pressure from Judy and the drugs that caused me to do it.”
35 As a result of the fire three businesses in Daylesford were substantially damaged. In cross-examination (I assume on the plea), you said you did not want to do it, but there was pressure on you and you had nowhere to go. You did not think of the consequences to you. You said you gave no thought to the possible impact of your action on members of the Daylesford community.
36 This matter proceeded to appeal, and as I previously stated, your appeal was allowed and sentence was reduced, the court noting that there were others involved in this offending and also noting, in reducing the sentence, you had agreed to give evidence against other persons involved in that offending. The Court of Appeal, specifically, Nettle JA stated at paragraph 27:
“It should be understood, however, that the sentence and non-parole period I propose are markedly below the levels that would ordinarily be appropriate for offences of the nature and gravity committed by the appellant. It is only because of the significant discounts on sentence that I think are to be allowed for this plea of guilty and, more importantly, his undertaking to give evidence for the Crown against his co-offenders that such a degree of leniency may be regarded as warranted in this case.”
The other two justices in the Court of Appeal agreed with his Honour’s assessment and conclusion.
37 Returning to your prior offences.
38 Prior to that you appeared interstate (Queensland) on 4 March 2002 on a number of charges and were placed on a Bond for 18 months. That offending included eight charges of destroying or damaging property and no reference to fire.
39 You next appeared on 23 September 2002 and were placed on a two-year Bond.
40 Your next appearance was on 30 May 2005 on charges including destroy/damage property and were convicted and fined. Again I note there is no suggestion of fire.
41 The written submissions from Mr Exell also included a chronology and background. You are the second of four children. Your father worked at the Ford factory and your mother a full time mother, although occasionally working in a service station and a clothing store.
42 Your parents separated when you were approximately 5 years of age and following that separation, you lived with your father for a short time before returning to live with your mother. I am told you have not had any further contact with your father since that time. When you were 7, your mother married Peter Harmer and there are two further sons of that relationship.
43 You moved to Queensland when you were approximately 10 years of age with your mother, stepfather and siblings, remaining there for a few years.
44 Your mother’s marriage to Mr Harmer ended in approximately 1996. You then briefly lived with your mother in Sydney before she again re-partnered. You returned to live with Mr Harmer in Victoria for about one year.
45 You had a dysfunctional relationship with your stepfather, Mr Harmer, and it was characterised by sexual abuse.
46 Your mother had previously been diagnosed with Bipolar Affective Disorder and manic depression. She committed suicide when you were 18 years of age. She had been unwell for most of your life.
47 Shortly after your mother’s death, you attempted suicide although were located by your brother and emergency assistance was called. You at that time had very brief contact with psychiatric services at Geelong Hospital.
48 Your brother, Jason, has suffered with schizophrenia for much of his life and your sister, Jacinta, Bipolar Affective Disorder with manic depression.
49 Your education began in Victoria, although you had difficulties reading and writing. When you moved to Queensland, you were diagnosed with a learning difficulty and attended a school for children with special needs. When you moved to Sydney you attended Pennant Hills Secondary School and when returning to Victoria to live with Mr Harmer, attended a school in Barwon Heads.
50 You ended your education shortly before the end of Year 10.
51 You described a lonely and isolated existence throughout your life and whilst at school, feeling like you were an “outcast” and a “black sheep”.
52 You later completed a TAFE course in work education, learning about work and life skills.
53 Following your schooling and when you were 18 years of age, you moved to New South Wales working in concreting before returning to Victoria prior to July 2004.
54 You were then in custody between March 2006 and September 2007. Upon release, you completed parole over 18 months and worked at the Kyneton Abattoirs.
55 After the employment at the abattoirs, for approximately four years you briefly worked for an earthmoving business before returning to Kyneton Abattoirs, where you remained until 2014.
56 You said you left that work as it was too stressful and you felt it impacted negatively on your relationship and mental health.
57 At the time of the offending before me you were working as a dish washer in a local restaurant.
58 Turning to your relationship history, you met your former partner, Bree Conway, when you were approximately 22 years of age and there are three children of that relationship.
59 Despite its end in 2013 you described a continuing and positive relationship with Ms Conway. She wants you to remain involved in your children’s lives. Prior to your recent remand in custody for the offending before me, you had a custody-sharing agreement with Ms Conway.
60 You have remained in contact with Ms Conway and your children whilst in custody.
61 Turning to your substance abuse history, you reported you drink alcohol, however, now typically consumed low alcohol beer. You commenced smoking cannabis when you were 16, ceasing that approximately six or seven weeks before the offending before me.
62 You started to use ice approximately one year before the offending before me, consuming one point every two or three days. You reported that ice caused you to continually "ruminate" on what was going on in your head.
63 You had also previously used amphetamines and reported relapse following separation from your partner.
64 Reference was made within Mr Exell’s submissions to your prior court appearances and in particular that for the offence of arson. Mr Exell in his written submissions urged that offending was distinguishable from your offending before me, and urged your mental health was relevant when sentencing you for the offence that is before me. He submitted it was not clear if that was a relevant consideration when the court re-sentenced you in 2006.
65 On 31 August 2016 your then counsel, Mr Miller, referred to three reports from Dr Shannon Reid to which I shall now refer.
66 Mr Miller relied upon these reports in support of his submissions that the principles in Verdins & Ors[2] applied when sentencing you.
[2] (2007) 16 VR 269
67 I received the report from Dr Reid dated 1 February 2016 prepared relevant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and prior to your then trial. Dr Reid assessed you on 1 February 2016 at the Metropolitan Remand Centre. At that time, you advised you had been seen by a psychiatrist in prison approximately six weeks earlier, although you were of the opinion that was unnecessary and that you did not have a psychiatric illness apart from PTSD. You had however accepted anti-psychotic medication in custody, at that time, Risperidone, two milligrams daily, and said that had assisted in slowing your thoughts.
68 You described at the time of that report, as frequently experiencing feelings of unexplained familiarity regarding locations and people you had come across during your incarceration, although Risperidone had ameliorated the stress associated with that to some degree.
69 You described your attempt to hang yourself at the age of 18 following the death of your mother and your then admission to Dax House Psychiatric Service in Geelong for two weeks. Following that, however, you did not receive any further treatment or supervision, saying you resisted the urges of various practitioners to commence medication.
70 Regarding your offending before me, you referred to recollections of your father’s association with motor cycle gangs and the “illuminati”. You further explained that the illuminati were a group that wanted to take over the world and were “gay oriented”. That “they appeared like everyday people” and therefore would not be immediately apparent as members of the group.
71 You described that approximately a month and a half after moving into the house, the subject of this charge, you had recollections of having been in the house as a child previously and of being tortured there. You described coming to the view the house was a former motor cycle club, “Illuminati Stronghold” or church of the illuminati.
72
When asked why you set fire to the house, you said it was “just to get rid of
it … it’s going to stop bad things happening to anyone else”. You had been considering burning the house down over a period of approximately three months and had come to the view that you had a time limit of six months in which to destroy the house.
73 You said you had used methamphetamine the night prior to this offending.
74 At the time of the offending, you said you knew your actions constituted a crime, that it was the wrong thing to do, but it was the right thing to do to protect children.
75 You described to Dr Reid a history commencing with cannabis use at the age of 16 and of ceasing use of it suddenly six to seven weeks before this offence, as you wanted to “reduce your experience of paranoia”. Since ceasing cannabis use you said you felt more “clear headed”.
76 You described, as I have said, having used ice (methamphetamine) over the last year and that a “point” of methamphetamine, you said to Dr Reid, would last you two to three days.
77 Turning to your personal history, you were initially resistant to the topic of your earlier life, however, described a poor experience at primary school and of members of your family diagnosed with schizophrenia and Bipolar Disorder. You repeated that you had been to a special school in Queensland attending until Year 9 and then doing a TAFE course. But you described your stepfather as a “paedophile illuminati”.
78 Turning to your mental state examination, you asserted on several occasions that you did not have a mental illness, although Dr Reid noted you appeared to be subject to a variety of persecutory delusions. Most recently you described déjà vu experiences which led you to believe you had been imprisoned at the Metropolitan Remand Centre before, and having previously occupied your current cell.
79 In Dr Reid’s opinion, at the time of his February report, you were subject to the symptoms of a psychotic episode and it appeared highly likely to him that at the time of this offending, you were subject to acute symptoms of psychosis. There was also some evidence to suggest you may be subject to a chronic psychotic condition including persistence of psychosis since incarceration (in the relative absence of drug use).
80 He also noted your symptoms consolidated during a period of illicit substance use.
81 The aetiology of your symptoms, he said, was complex. However, the most probable provisional diagnosis was of a chronic psychotic disorder, such as schizophrenia with exacerbation of symptoms as a result of your substance use. The differential diagnosis was of psychosis related to substance use. In his opinion, further diagnostic clarification may be achieved with time in the relative absence of substance abuse. Whilst it appeared probable on balance you had a “disease of the mind”, it was of note there was some likelihood substance abuse and withdrawal from substances had an influence upon your thoughts, behaviour and emotions at the time of your offence and your ability to inhibit disturbed impulses. I note Dr Reid’s reference to your drug use upon your mental health. In that regard I consider Johnston v The Queen[3] referrable to substance abuse affecting mental state.
[3] [2013] VSCA 362
82 The permanence or otherwise of your condition, he said, would be demonstrated in time if you were able to maintain a significant period of abstinence from substance abuse. He noted, however, you appeared to have had the condition for a number of years and that your symptoms had been of significant severity.
83 In the opinion of Dr Reid, your custodial environment at that time was placing more stress upon you than it would on others who did not share your condition. In particular you feared others in the prison system may have previously been involved in your persecution and might harm you in the future.
84 As at the date of his first report, you had relatively poor insight regarding your condition.
85 A second report was prepared by Dr Reid dated 12 May 2016. That assessment also occurred on remand.
86 At that interview, you reported improvement in your mental state over the previous few months, which you felt was the result of your use of Risperidone, then four milligrams per day.
87 You described at that assessment that Risperidone had “stopped the thoughts like a ‘memory wiper’ of the illuminati.” You were unsure whether your thoughts had been resolved through taking medication or whether it was your imprisonment that had led you to being protected from the environment over which the illuminati had influence.
88 You reported you continued to experience “déjà vu feelings” regarding locations and people you came across during incarceration.
89 You described being significantly isolated within prison, bored and lonely. You reported imprisonment was causing considerable difficulties for you as a result of your tendency towards isolation and ruminative thoughts. You had also been held in your cell at Metropolitan Remand Centre 22 to 23 hours per day. As at the time of Dr Reid’s May report, you had not engaged in any courses or work in prison, although had applied. You currently held the view your medication was beneficial.
90 Also at interview in May, you resiled partially, but to a significant degree from your previous belief that the house you burned down was “evil”. At current interview you stated your offending behaviour was “stress, my head. I had a bit of ice.” You said you had taken ice (methamphetamine) for three to four days before this offending.
91 You regretted your involvement in this incident because you were “in here”. You also described the impact on the victim of your offending, noting they had lost their house and source of income. That had not been in your mind at the time of the offending, rather it was about the “illuminati”.
92 At interview in May you said you would be able to avoid further substance abuse by focussing on your obligations to your children and working.
93 Turning to the mental state examination conducted in May 2016, you once again held beliefs the illuminati and motor cycle gangs may have had an influence upon your life over many years. However, in May your beliefs were no longer of delusional intensity, although still present. You were able to entertain the possibility that this was a product of illness. Dr Reid noted an improvement in your insight, although you vacillated between viewing your experiences as illness or the effect of a persecutory conspiracy. You were, however, able to weigh up the evidence for each possibility and also consider the impact of substance abuse.
94 Turning to his summary and opinion in May 2016, you remained currently subject to the symptoms of a psychotic episode that had not fully resolved. In the opinion of Dr Reid, it appeared highly likely at the time of the offending you were subject to acute symptoms of psychosis. Further, it was probable you were subject to a chronic psychotic condition, although in May there was little evidence of the presence of “negative symptoms of chronic psychotic disorders”.
95 Dr Reid noted your symptoms consolidated during a period of illicit substance use with some further exacerbation following relatively sudden cessation of cannabis use, which may have been further destabilising. Psychosis associated with methamphetamine, he suggested, may take in some cases many months to resolve.
96 On balance, the most probable provisional diagnosis was of chronic psychotic disorder with exacerbation of symptoms as a result of substance use. The differential diagnosis was of psychosis related to substance use. Again I note the impact of your drug use.
97 His diagnosis of a chronic psychotic disorder now, he said, had higher probability than at the time of his first interview in February 2016. There was also the likelihood of substance abuse, also possibly withdrawal from substances, together with the effects of a psychotic disorder had an influence on your thoughts, behaviour and emotions at the time of your offending. He reiterated that the custodial environment would place more emphasis upon you than others who did not share that condition.
98 Your insight regarding your condition had improved, he said, in the previous few months, however, your prognosis would be heavily affected by your ability to retain insight and abstain from substance abuse.
99 You were able in May to express regret for your actions and consider the impact upon the victims. You showed good insight regarding the benefits of medication treatment and Dr Reid urged that you be monitored when ultimately released.
100 I turn to the most recent report of Dr Reid dated 25 August 2016, prepared following your self-report to Mr Exell that you had been sexually assaulted by your stepfather.
101 In the recent assessment, you reported you continued to experience déjà vu phenomena several times per week, believing your current physical surroundings and people around you were familiar to you from a time preceding your recent incarceration. Your medication, you thought, was beneficial to you, although you were unable to say how that was so. You were still prescribed Risperidone, four milligrams daily.
102 You stated you had the belief your stepfather had sexually abused you, however, when asked why you believed that, you stated: “It’s just the type of person that he is.” You described being aware of an incident when you were between 5 and 7 years of age where your stepfather forced you to touch him inappropriately, however, you were unable to then recall details. You stated you had no knowledge of that incident until a few years ago, and were unable to recall other incidents.
103 You described the impact of that abuse upon you as “I don’t know. Made me paranoid, I suppose”, however you were unable to provide information about the specifics of your paranoia. You were unable to provide any specific information to Dr Reid at that interview as to how you believed those incidents were related to your views about the house, the subject of this charge of arson.
104 Dr Reid noted, however, an earlier report of Dr David Sullivan in 2006, which you described a belief that when you were a child your stepfather had attempted to “sneak into bed” with you.
105 Turning to the recent mental state examination, you said you continued to present with the belief there had been some relationship between the property involved in your offending and your adverse experience from the past.
106 Turning to his summary and August 2016 opinion, whilst you presented with an account of alleged abuse, there were aspects of that account of which you were uncertain and it was not possible for Dr Reid to determine with surety as to whether your accounts were entirely a product of illness or whether there was a factual basis to them.
107 Dr Reid concluded it was likely you had a chronic psychotic disorder and the presentation of this new material involving alleged abuse during your childhood did not materially alter his opinion in his earlier reports. He maintained it was important you receive psychiatric follow-up treatment once you returned to the community.
108 You have been in custody since 12 November 2015 for this offending. In custody you have been treated with anti-psychotic medication and you reported a reduction in the symptoms. Dr Reid noted, however, that your insight regarding your condition had improved during your time in custody.
109 Mr Miller provided an update in relation to your attendance at Dax House, and tendered information from the Geelong Hospital regarding an admission in 2000 (previously referred to in paragraph 9 of the written submissions of Mr Exell). It would appear at that stage you were admitted to the hospital, and whilst it was queried whether or not you were then suffering from psychosis, no final diagnosis was made.
110 I discussed with Mr Miller his submission that each of the six principles in Verdins would be applicable when sentencing you. That lengthy discussion is in the transcript.
111 As a result of the discussion, Dr Reid was called to give some evidence. In brief, at the time of this offending, your outward affect would not have necessarily indicated the presence of any psychosis and, therefore, when you made your statement to police within a few hours approximately of the fire, you could likely provide a logical account even suffering psychosis at the time. In the opinion of Dr Reid it was possible that, if you were suffering a psychosis or schizophrenia, you may still present normally, with no obvious changes to your behaviour.
112 Dr Reid said you were aware your offending was criminally wrong.
113 Dr Reid did not regard it as inconsistent that there not be any reference to your psychosis or schizophrenia in the report in 2006 by David Sullivan as, from your own reporting of this, it was only in the last few years this had developed.
114 In his opinion, it was highly probable you were schizophrenic at the time of your offending and that had continued whilst in custody. In relation to the presence of features in your schizophrenia, Dr Reid referred to your continuing delusional ideas, despite not having access to drugs within the prison system. That you had a psychosis strongly retained, meant this offending as the result of a drug-induced psychosis, was less and less likely. While there were some negative symptoms of schizophrenic illness absent in you, that did not mean you did not have schizophrenia.
115 It was Dr Reid’s impression you had retained similar beliefs over a significant period of time, which included being wary and suspicious of Dr Reid at interview.
116 Regarding your methamphetamine use at the time, Dr Reid said it was difficult to disentangle your drug use from your psychosis when assessing your moral culpability. He said it was not possible to say what would have happened on the day of the fire if drugs had not been present.
117 While he had not formally diagnosed you with schizophrenia, it was his opinion you had schizophrenia and he noted the medication currently prescribed could only be given following such a diagnosis.
118 I discussed with both counsel the applicability of the Verdins principles in your case. The prosecutor, Ms Malobabic , referred me to a decision of R v Wright[4] and I also directed counsel to the decision of Johnston, to which I have previously referred.
[4] [2015] VSCA 33, [46]-[53]
119 In my opinion, when considering principles 1-4 of the restatement of the Tsiaris principles in Verdins, the evidence of Dr Reid in essence, was that while you may well have suffered with psychosis and schizophrenia at the time of your offending, he could not disentangle your use of methamphetamine and its possible role in this offending. That seemed to me to be problematic, consistent with the two authorities to which I have just referred.
120 It is clear, however, from Dr Reid’s evidence, you did have a psychotic or schizophrenic episode at the time (even with the overlay of drugs) and that whilst Verdins principles 1-4 are not enlivened when sentencing you I do, however, consider that consistent with general sentencing principles, the fact of that psychosis/schizophrenia does mitigate your moral culpability for this offending and that there should also be some moderation, although not elimination of general deterrence when sentencing you. In my opinion there remains, however, the need for specific deterrence.
121 Turning to your time in custody, Mr Miller conceded principle 6 in Verdins did not apply in your case. I do agree with him that Verdins principle 5 does apply and mitigates your sentence.
122 Mr Miller submitted you were remorseful for your offending and had expressed grief for the victims, not only in the record of interview, but also when speaking to Dr Reid. I accept that is so.
123 Mr Miller also urged your plea of guilty was entered at the earliest opportunity and the prosecutor conceded such. I also accept your plea of guilty was at the earliest opportunity.
124 Turning to your prospects of rehabilitation, Mr Miller submitted you were currently medicated in custody, and this was the first time you were receiving such medication. You found the medication “good for you”. In addition, you now had some insight into your illness and were keen when released from prison to work and see your children more. All I can do is urge you to continue your medication and take up any counselling that is offered to you.
125 Mr Miller urged a disproportionate sentence was not required when sentencing you as a serious arson offender. The prosecution was not seeking a disproportionate sentence and I consider I am able to appropriately sentence you without the need to impose a disproportionate sentence.
126 Mr Miller submitted the appropriate disposition for your offending would involve a term of imprisonment, together with a Community Correction Order. I discussed this with him. He relied in essence on the principle stated in Boulton & Ors v R[5]. I did not, however, understand Boulton to remove the need for a sentencing judge to take into account all of s.5 Sentencing Act 1991. Nor did I understand Boulton to mean the principles stated by our Court of Appeal in particular relevant to the seriousness of particular types of offences and statements regarding serious offender provisions now amounted to nought. Nor did I understand the decision in Boulton to remove the instinctive synthesis when sentencing.
[5][2014] VSCA 342
127 Boulton has been referred to in a number of cases, including DPP v Maxfield[6], Alam v R[7], Marocchini v R[8] and most recently, Gul v R[9]. However, as his Honour Priest JA said in Hutchinson v R[10], it should not be thought that Boulton offers a "get out of jail free" card.
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128 Ultimately, in my opinion, a Community Correction Order forming part of the sentence would not be appropriate, taking into account all relevant sentencing considerations including all matters personal to you and in mitigation of sentence, and also, of course, including the gravity of your offending.
129 The prosecutor submitted this was your second arson offence and you were to be sentenced as a serious arson offender and, as such, there was the need to protect the community when sentencing you. I agree.
130 The prosecutor submitted there was need for specific deterrence when sentencing you. I agree.
131 There could be a reduction in your moral culpability and the need for general deterrence she urged, however, noted as did I, you did use drugs on this occasion.
132 The prosecutor referred to the serious impact of your offending upon the victims.
133 She submitted your conduct warranted denunciation and just punishment and that absent the applicability of any of the principles 1-4 of Verdins, the prosecution submitted the appropriate disposition was an immediate term of imprisonment.
134 I turn to the two victim impact statements before me. One from Ernest Pyers. He described that his home was totally destroyed, had to be demolished and the site cleared. It was in very good condition at the time of the fire. It was insured for $228,000, but the home would cost approximately $300,000 to replace. The property had provided Mr and Mrs Pyers with rental income and they were now deprived of that income, which affected their retirement.
135 There have been significant expenses incurred in recent months in an attempt to rebuild the property. They are concerned about their own home property and its safety when away from it.
136 Mr Pyers referred to he and his wife being 82 years of age, having to deal with this fire and building a replacement home which had been traumatic for them. The fire destroyed not only that house, but their sense of place and security.
137 There was a victim impact statement from Rosalind Pyers, who confirmed much of the contents of her husband’s victim impact statement. She described that at the height of the blaze it was very frightening for her to see smoke and flames coming out of the property. She was anxious about whether there were any children in the house, being aware three children were there overnight.
138 Since the fire, Mrs Pyers had been far less relaxed and was more anxious about security in her own home.
139 The effects upon a victim are a relevant sentencing consideration, see s.5 Sentencing Act 1991. I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
140 Regarding your rehabilitation prospects, I have guarded optimism, although am comforted in your current situation, which involves you taking the prescribed medication, which appears to be doing you some good. Significantly also, however, you will need to address your drug use as it is clear your drug use exacerbates your mental health issues.
141 As well as matters personal to you, including your rehabilitation prospects as I find them to be, I must also consider the need for general deterrence, which is an important consideration in a case such as this, although I am mindful of the slight moderation of general deterrence to reflect the matters raised by Dr Reid in his evidence and within his reports.
142
In my opinion, there is the need for specific deterrence when sentencing you given your prior offence of arson and being mindful of the conclusions of
Dr Reid regarding your mental health.
143 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me. You will need treatment for a long period of time for me to be comforted in relation to others in our community. You will need to cease all illicit drug use and you are yet to be tested in the community.
144 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
145 As previously stated, a combination disposition of a term of imprisonment together with a community correction order, in my opinion, would not adequately, or appropriately, reflect all sentencing considerations in your case.
146 I, therefore, sentence you as follows.
147 On Charge 1, you are convicted and sentenced to 4 years and 6 months’ imprisonment and I set a non-parole period of 2 years and 4 months before you are eligible for parole.
148 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to that charge and been found guilty of it by jury, if you had run a trial, I would have sentenced you to a term of imprisonment of 7 years and set a non-parole period of 5 years.
149 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 300 days in custody by way of pre-sentence detention, that is up to and including yesterday, 6 September 2016 and I direct that be entered into the records of the Court.
150 I declare you have been sentenced as a serious arson offender on Charge 1 of Indictment F13797337.
151 Any there any other orders? I did not think there were.
152 MS MALOBABIC: No, Your Honour.
153 HER HONOUR: No, all right. Now you got the 300 days right?
154 MS MALOBABIC: Yes, Your Honour.
155 MR MILLER: Yes, Your Honour.
156 HER HONOUR: Excellent. All right, thank you. Age 34. I go that, still 34. I was not sure with that adjournment from July to August there might have been a birthday but - so where I said he is sentenced still 34, he is still 34 at sentence. All right, that's correct. Thank you very much.
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