Director of Public Prosecutions v Knight
[2018] VCC 1777
•1 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNEMELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00755
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES KNIGHT |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2018 | |
DATE OF SENTENCE: | 1 November 2018 | |
CASE MAY BE CITED AS: | DPP v Knight | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1777 | |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Arson – Common Assault – Reduced culpability – Difficulty in custody – Young offender – Remorse – Stable home environment – Support network
Cases Cited: R v Verdins [2007] VSCA 102; DPP v O’Neill [2015] VSCA 325
Sentence: 37 days imprisonment and three year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Farrell | Office of Public Prosecutions |
| For the Defendant | Ms N. Smith | Victoria Legal Aid |
HIS HONOUR:
Charges
1 James Robert Corken Knight you have pleaded guilty before me to one charge of criminal damage by fire (arson) and one charge of common assault. The maximum penalty for arson is 10 years' imprisonment. The maximum penalty for common assault is 5 years' imprisonment.
Circumstances of offending
2 The circumstances of your offending are set out in full in the prosecution opening that was tendered as Exhibit A on the Plea and will form part of my reasons for sentence.
3 In brief, the victim in respect of both charges is your mother Delilah Knight.
4 At the time of the offences you were living with your mother, as you had for your entire life up to that point.
5 From the approximate age of five you were diagnosed with Asperger's syndrome. Understandably you have struggled throughout your life in the face of the challenges presented by that condition.
6 It is also understandable that your mother has struggled to deal with the challenges arising from your condition. It was said on your plea that your mother has suffered from bipolar disorder and has also been an abuser of alcohol. These factors no doubt contributed to a difficult domestic environment.
7 The offences before me arose in circumstances where you were unable to deal with the pressure that had built up, perhaps over years, as a result of relationship difficulties between you and your mother. Apparently there had been incidents between you and your mother in the five years leading up to these offences. It was important for me to be told about that background in order to properly understand the events of 11 November 2017 and that is the only relevance that that aspect of your background has in relation to my sentencing disposition.
8 At about 2 pm on 11 November 2017 your mother was visiting a friend for coffee not far from your then home in Healesville, where you lived with your mother and at least one of your half-brothers. The home was the property of the Department of Health and Human Services.
9 You entered the home your mother was visiting and asked whether there were some noodles to eat it. Your mother replied that there was food at home at which point you became very upset, swearing and yelling, and indicating that you had been eating sandwiches ‘24/7’.
10 You became very emotional and amongst saying other things you threatened to jump in front of a car and kill yourself. Your mother told you not to be silly and she started walking towards the door to go home. You ran up behind your mother and punched her in the side of the head with a closed fist with sufficient force to knock her to the floor (Charge 2 - Common Law Assault).
11 You returned to the home you shared with your mother. Prior to doing so you yelled in her direction, “I am going to burn the house down you dumb bitch.”
12 Once you returned to your home you locked the front door and picked up a Rexona aerosol can from your bedroom and a cigarette lighter from your mother’s bedside table. It was your intention to set the house on fire. Ultimately, that is what you did.
13 You entered your mother’s bedroom and began trying to set her bed alight but you were unsuccessful. You placed the contents of a rubbish bin on your mother’s bed and then used the aerosol can and lighter to successfully ignite the rubbish on the bed. You then threw the aerosol can and lighter into the fire. The can exploded in the course of the fire. The fire spread throughout the house. Substantial damage was caused, although the house was not completely destroyed. The estimate of damage is $137,385.(Charge 1 Arson).
14 In your favour, to some small degree, is the fact that you promptly contacted 000 on your mobile phone prior to the fire taking hold. You advised the 000 operator of what you had done and followed their instruction and provided information sought by them.
15 At the plea hearing the prosecutor Ms Farrell played the 000 recordings. The 000 recordings form Exhibit B. These recordings provide the most eloquent expression of what was going on in your mind at the time of your offending. In my view it tells the tale of these offences better than any statement, report or summary could ever do.
16 In brief, the 000 recordings support the proposition that you rang 000 at an early stage after having ignited the fire and prior to the aerosol can exploding and the fire taking hold.
17 Your extreme distress and near hysteria is palpable in these recordings. It is abundantly clear from these recordings that you regretted your actions immediately upon setting the fire. Through your distress and highly emotional state you offered an explanation for your conduct when questioned by the operator. Amongst many sentiments expressed by you, you said, "I was in a blind rage. I don’t know why I did it. I just lost my mind. I’ve got Asperger's." At several stages during the recordings you were barely able to speak given your extremely distressed state.
18 When asked if you needed an ambulance you explained that you were not physically injured but you might need an ambulance to assess your mental state.
19 Your confusion and contrition concerning your criminal behaviour was clear in these recordings. You stated. "I just don’t know why I’ve done it." You stated that you felt like you had a split personality. You said, "I don’t know what’s going on", that, "I have burnt my mum’s house down", that, "I don’t know why I’ve done this", and, "I don’t want mum to find out".
20 On several occasions throughout the recordings your speech was extremely high-pitched and at times indecipherable. Whilst the recordings were played in open court you were sobbing uncontrollably in the dock.
21 It is abundantly clear from these recordings, together with the other materials on the Plea, that your severe Asperger’s condition and associated symptoms, are inextricably linked with your offending.
22 In your favour, you were cooperative with the 000 operators in relation to the information they sought from you and in relation to the directions given to you by them.
23 When your mother heard the sirens she learnt via others that the fire brigade was attending her home. Along with others she went towards her house and saw you standing outside. You screamed, “I told you I would do it you stupid bitch. I hate you.” You also threatened to kill yourself.
24 It is to your great discredit that you continued your invective toward your mother in this manner after the event. It is also inconsistent with the remorse and contrition you expressed to the 000 operators. However, these outbursts are consistent with the confused and conflicting expressions you made at times during the 000 call. They are also consistent with your failure to regulate your emotions as described by Gina Cidoni in the psychological report tendered on your behalf (Exhibit 2).
25 In the 000 recordings you expressed on more than one occasion that you did not understand your confused thought processes and that you felt like you had a ‘split personality.’ You stated that you needed to go to gaol for a long time. I was not asked by the prosecution to consider this utterance to your mother made shortly after the event as either an aggravating feature or evidence of a lack of remorse at that time, and I draw neither conclusion. I treat this utterance as part of the matrix of disordered and angry expressions that you gave vent to during the episode of criminality.
26 During the 000 recordings you made several references to wanting to die. You also expressed that you wanted to kill yourself in the fire. When interviewed by police sometime later you expanded upon this theme, indicating that one of your motivations for lighting the fire was suicide. You were assessed as highly suicidal upon arrest.
27 I now turn to your personal circumstances.
Personal Circumstances
28 You were 21 years of age at the time of the offending and are now 22 years old. You were born in Upper Ferntree Gully and were raised in Lilydale and Healesville, primarily by your mother.
29 You do not know your biological father. Your stepfather was a father figure in your life however your mother and he separated when you were aged around six. You continue to have a good relationship with your former stepfather and I was told you have regular telephone and face-to-face contact with him. You have two half-brothers Brian aged 18 and Joshua aged 15, both of whom you have good relationships with.
30 Your childhood environment was far from ideal. No doubt the difficulties presented by the circumstances of your childhood were far more difficult for you given your condition.
31 Your mother has suffered from bipolar disorder as well as substance and alcohol abuse. There was domestic violence within the home from your stepfather toward your mother. As was noted in the prosecution opening there was a level of conflict between yourself and your mother which escalated over the five years leading up to the date of the offences.
32 You attended several primary schools and then attended Lilydale Heights Secondary College for Year 7 and then Healesville Secondary College for Years 8 to 12. You completed the VCAL certificate at age 18.
33 School life was a struggle for you. You were bullied. You have reported that you had no real friends at school. It is more than likely that these difficulties were substantially attributable to your condition.
34 You have been in receipt of a disability support pension since you were 16. You have tried to obtain employment but to date you have been unsuccessful. Currently, you live with your uncle, Daniel Knight, who was present in Court and gave impressive evidence on your behalf. Of your $800 fortnightly pension you pay $300 to your uncle for board.
35 You live with your uncle and your grandmother, Joy Knight, in Albury. You were bailed to that address on 18 December 2017. Your nine year old cousin also lives at that address. Other extended family members live nearby.
36 There was evidence on the Plea that you are thriving in the environment at Albury. You consider that for the first time in your life you have ‘real friends in real life.’ The effect of your uncle’s evidence, combined with your presentation and the matters and materials raised on the Plea, persuade me that you are well on the way to rehabilitation and that you have a stability in your life you have not always had.
Psychological material and mental health history
37 During a thorough plea conducted on your behalf by Ms Smith I received a report from Consultant Psychologist Gina Cidoni (Exhibit 2), a report from your general practitioner Dr San (Exhibit 4), and a Mental Health Court Liaison Service Confidential Psychiatric Summary (Exhibit 5).
38 These materials provide a detailed history of your psychological history and experience.
39 You were diagnosed with Asperger's at age 5. You experienced depression and anxiety from a tender age. You report that from the age of nine you were struggling to cope with your condition and were diagnosed with depression and anxiety.
40 You experienced bullying at school. You also struggled with obesity. At a young age you experienced trauma having been exposed to terrifying incidents involving fire on two occasions. The first, during a bushfire that was approaching your residence. The second was during a fire in your home when your mother had fallen asleep whilst cooking fish and chips.
41 Your adolescent years were extremely difficult. You had two periods of admission to the Eastern Child and Adolescent Mental Health Unit as a teenager. Both of these occasions followed attempts at suicide. At age 15 in September 2011 you were admitted for an 18 day period. At age 17 in February 2014 you were admitted for a five day period. These suicide attempts arose as a result of difficulties with friends and an episode of cyber bullying.
42 You were medicated throughout your teenage years. It is significant that your compliance with medication was erratic in the 18 months leading up to the offences. You resumed taking medication in prison. There was evidence before me on the Plea that you are now compliant with taking your prescribed medication.
43 Ms Cidoni tested your intellectual functioning and concluded that it was ‘average.’
44 Ms Cidoni stated that personality testing revealed significant psychological disturbance with a profile that featured anxiety and schizoid functioning. She said there There were indicators of unstable mood with depression at one end and mania at the other, consistent with symptoms presenting in Asperger’s syndrome.
45 Ms Cidoni notes in relation to Asperger’s syndrome that it is
‘a chronic developmental disorder characterised by problems in social relatedness, empathic communication and understanding. There is an impairment in social relationships and a restricted range of interests or lack of flexibility of thought. Individuals with Asperger’s syndrome suffered deficits which lead to difficulties in understanding the perspectives of others, inferring the intentions of others, evaluating other people’s interests and beliefs, and problems predicting and understanding the intentions of other people. There are problems conceptualising thoughts and feelings of others, and in understanding their own thoughts and feelings as well. This deficit in perspective taking then translates to difficulties in social reasoning and adaptive behaviour.’
46 In Ms Cidoni’s opinion your offending is directly linked to your Asperger’s condition and symptoms. She opined you have ‘histrionic qualities and difficulty regulating your emotions.’ As I have already stated the 000 recordings provide a clear illustration of what Ms Cidoni describes.
47 Ms Cidoni went on to say that your impairment is severe and would have the effect of ‘impairing your ability to exercise appropriate judgement and to make calm and rational choices (to think clearly) obscuring the intent to commit an offence’.
48 Ms Cidoni also stated that in her opinion you would experience hardship in a prison environment as a result of your mental disturbance. Your difficulty reading social cues and your odd manner will add to your difficulties.
49 These observations and opinions of Ms Cidoni were not challenged by the prosecution, nor could they be challenged sensibly. It is unassailable that you experience symptoms of Asperger’s syndrome at a severe level. Ms Cidoni’s comments regarding your difficulty reading social cues and odd manner were confirmed in my view during the course of the plea hearing.
50 There is no doubt that the 37 days you spent on remand prior to being bailed in relation to this matter would have presented as harsher for you, given your difficulties, than it would for an individual who did not suffer Asperger’s syndrome to the severe level that you do. It follows that the hardship of any gaol term I impose is much greater for you than for an individual who does not suffer your condition.
51 There was no dispute on the Plea that there was a sound evidentiary basis for finding a causal link between your impairment and the commission of the offences. There is more than one pathway that one could approach the manner in which your impairment is taken into account in sentencing you. One could approach your impairment as providing a basis to reduce the moral culpability that would ordinarily attach to an offence of this type. Alternatively your condition and its effects upon you could be taken into account in arriving at an assessment of the overall criminality which necessarily includes an assessment of your moral culpability. On either analysis your impairment and its contribution to the commission of the offence is reflected in the sentence I impose.
52 As I have stated at the outset I have concluded that your condition and the offending are inextricably linked. The build-up to this offence occurred over years rather than days or weeks. Your frustrations and difficulties in resolving them boiled over as a result of a completely innocuous triggering remark about a sandwich. Your issues with your mother and issues surrounding whether there was appropriate food in the house, her expenditure, and no doubt a whole background of conflict between the two of you over the years, overwhelmed your emotions. The particular difficulties you face in regulating your impulses, and the difficulties you have in conceptualising and understanding the thoughts and feelings of others, as well as your own thoughts and feelings, impair your ability to exercise appropriate judgment and to make calm and rational choices.
53 A full expression of the background involving you and your mother, and the pressures and triggers that lead to your outbursts and criminal offending are no doubt many and varied and beyond the scope of these sentencing remarks to summarise.
Circumstances Post-Offence
54 I take into account the impact upon you of having spent 37 days on remand in respect of these matters before being bailed. It was your first time in custody. Not surprisingly this was a frightening, distressing and depressing period for you. I have no doubt those 37 days would have weighed far heavier on you and resulted in a significantly harsher experience than it would for an individual not suffering Asperger's.
55 It was conceded on your Plea that any period of incarceration is harsher for you than for another who does not suffer your severe condition.
56 You are lucky to have the support of your uncle and a large extended family in the Albury region. You are engaging in psychological counselling pursuant to a mental health care plan, and your uncle is actively seeking NDIS funding for ongoing assistance for you.
57 The Order I impose will provide an additional level of counselling to that which you have been able to access yourself.
58 There is evidence before me which I accept that you are now compliant with your medication. For the 18 months leading up to the offending you were not compliant. You now understand better the importance of compliance with your medication regime and you can see the benefits and improvements in your life.
Extended Report
59 It was conceded on the Plea that a combined sentence involving a period of imprisonment and a Community Corrections Order was within range in your case. I sought an extended pre-sentence assessment report for a Community Corrections Order. Due to your particular difficulties and your current location in Albury I required a detailed report to assist with tailoring an appropriate sentencing order.
60
I have received the extended pre-sentence assessment outcome report dated
1 October 2018. The contents of that report are entirely consistent with the matters that were put to me on the Plea. The conclusion of the report reads:
‘Mr Knight is a 22 year old man with no previous criminal history. He has been assessed as being at low risk of reoffending. He struggles with the symptoms of Asperger's syndrome but at the moment seems to have this under control. He is fortunate to have the support of his extended family which should go some way to mitigate any risk of further offending. Since moving to Albury Mr Knight has made new friends and is in the process of obtaining qualifications in IT to obtain paid work.’
61 You were found suitable for a Corrections Order and conditions were recommended which I will include in the Order that I am about to impose.
62 Ms Smith who appeared on your behalf provided a detailed and substantial outline of plea submissions which was Exhibit 1. Together with the report of Gina Cidoni Exhibit 2, a letter from you, Exhibit 3, and some material from your GP and from Emma Robertson, I have accepted and relied upon Ms Smith’s submissions.
63 The thrust of Ms Smith’s plea on your behalf was that the period of time you have served in combination with a Community Corrections Order was sufficient to meet the sentencing requirements in this case. Ms Farrell for the prosecution provided me with some comparable cases and also made appropriate concessions as I have stated regarding the hardship to you in custody arising from your circumstances, in particular your Asperger's, as well as conceding that there was a basis to sensibly moderate your moral culpability based upon your Asperger's.
64 It goes without saying this offending is extremely serious. The assault on your mother was shameful, and I am satisfied you feel appropriate shame for that. The destruction by fire of your mother’s home represents criminality of a high order. The object of the destruction was to lash out at your mother in circumstances where tension had been building for some time. Resentment had been building for some time. That tension and resentment was not without foundation, however it is extremely concerning that you gave vent to that frustration by taking such extreme action.
65 Your conduct and the statements made by you during and immediately after the arson causes me to be guarded as to your prospects of rehabilitation if the stability you are currently experiencing were disrupted. The keys to your ongoing rehabilitation are to maintain your compliance with medication, maintain your stable environment, and for you to pursue productive interests such as further training with a view to gainful employment, as well as engaging in the community and continuing to develop friends.
66 You have pleaded guilty. This is your first and only offence. In all the circumstances I am persuaded that the period of 37 days together with a Community Corrections Order is an appropriate sentence in your case to reflect general deterrence, denunciation, just punishment and to give effect to specific deterrence. The sentence of course also addresses your ongoing rehabilitation.
Sentence
67 On Charge 1, arson, I sentence you to 37 days' imprisonment in combination with a Community Corrections Order of three years duration.
68 The three years Community Corrections Order is imposed as the sentence on Charge 2, common law assault, also.
69 You will be required to perform 150 hours of unpaid community work pursuant to the Order. In addition you will be subject to the following conditions. You are to undergo treatment and rehabilitation programs, you are to undergo medical assessment and treatment, you are to undergo mental health assessment and treatment, you are to undergo programs that address offending behaviours.
70 You will also be subject to supervision.
71 I will also monitor your progress at 12 month intervals from today's date for the duration of the order.
72 Pursuant to s.18 of the Sentencing Act 1991 I declare that you have served 37 days as pre-sentence detention in relation to these matters.
73 Pursuant to s.6AAA I declare that but for your plea of guilty I would have sentenced you to an aggregate term of two years' imprisonment with a non-parole period of 12 months.
HIS HONOUR: Mr Knight, what that means is if you consent you will be released on a Community Corrections Order. The 37 days I impose is already served.
OFFENDER: Understood Your Honour.
HIS HONOUR: The Community Corrections Order will be of three years duration and will have the conditions that I have already set out, but they're written on an order that you will be asked to have a look at now and sign. So are you prepared to consent to the order?
OFFENDER: I am prepared to consent Your Honour.
HIS HONOUR: Thank you. Thank you Mr Knight, I am now signing that order too so that order has now been made and copies will be provided for your practitioner.
OFFENDER: Understood.
HIS HONOUR: What I feel I must tell you is that you have been sentenced to a term of imprisonment for arson.
OFFENDER: Yes.
HIS HONOUR: You have served the 37 days. What that means is that if you commit another arson offence, the court is going to deal with you on a particular basis as being a serious arson offender.
OFFENDER: Understood Your Honour.
HIS HONOUR: And that is going to place you in a difficult position. You need to be well aware of that and your legal representatives can explain that to you in more detail. And arson could just be setting fire to a piece of paper in a bin, arson is any fire related offence. You understand that?
OFFENDER: I understand Your Honour.
HIS HONOUR: Setting fire to anything.
OFFENDER: Yes.
HIS HONOUR: All right. Is there anything else?
MS FARRELL: No Your Honour.
MS SMITH: No Your Honour.
HIS HONOUR: All right. Mr Knight, you understand the conditions of the order and where you've got to go?
OFFENDER: Yes I do Your Honour.
HIS HONOUR: Is your uncle present in court.
OFFENDER: Yes.
HIS HONOUR: That's right, I thought so, all right good. We will adjourn until 10.30.
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