Director of Public Prosecutions v Liam Brett
[2020] VCC 1357
•10 September 2020
1
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM BRETT |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2020 | |
DATE OF SENTENCE: | 10 September 2020 | |
CASE MAY BE CITED AS: | DPP v Liam Brett | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1357 | |
REASONS FOR SENTENCE
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Subject: Arson, damaging property
Cases Cited: R v Verdins [2007] 16 VR 269.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Karamicov | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Mr C McLennan | Chris McLennan and Co. |
HER HONOUR:
1 Liam Brett you have pleaded guilty before me to one charge of arson for which the maximum penalty is 15 years' imprisonment and one charge of damaging property for which the maximum penalty is 10 years' imprisonment.
2
The circumstances of your offending are summarised in the prosecution opening.[1] On 25 November 2019 you were residing in a rental property at
22 Ryan Street, Reservoir (the property). You lived at this address with your father, Michael Brett, for almost four years.
[1] Exhibit A.
3 At approximately 2pm on 25 November 2019, Michael Brett telephoned emergency services on “triple 0” to report that you were threatening to harm yourself, your father and grandmother and to set alight the house in which you lived. You had sent numerous text messages to your father’s mobile telephone of a threatening nature which are referred to in the prosecution opening. You also made numerous telephone calls to your father and sent your father a photograph of a fire truck driving past a house with smoke billowing from the roof.
4 Your father was at work when he received these communications from you. You were home alone at the property. Your father was concerned about your behaviour as you had a five-year history with mental illness which involved a diagnosis of drug induced psychosis.
5 At approximately 3.30pm on 25 November 2019, in response to the triple 0 call, First Constable Pangemanan and Constable Unthank went to the property to conduct a welfare check. They found the blinds pulled down and the front security door locked. They knocked on the front door but no one answered. There was no movement from inside the property. The officers returned to their vehicle.
6 First Constable Pangemanan contacted Michael Brett to discuss with him that no one appeared to be at the property. Your father told the officers that you had contacted him on his mobile phone. At about 3.50 pm during a second telephone call, your father told First Constable Pangemanan that you had sliced yourself and set the house on fire. The officers then heard yelling and screaming coming from inside the house and glass being smashed.
7 The officers left the police vehicle and ran back onto the property. They stood on the front porch and saw that the front window had been broken and they could hear a male voice from inside the property yelling “Leave me alone”. You continued to smash the front windows of the house from which the smell of smoke permeated. A thin veil of black smoke also came from inside the property.
8 First Constable Pangemanan walked to the front door and asked you to open the door. You sounded erratic and told the officers to go away. First Constable Pangemanan used his ASP baton and broke the front window. He used this to lift the blind so that he could see inside. He saw that you were lying on a mattress holding a long metal pole in your right hand and a knife in your left hand. You waved the knife around while you were lying on the mattress.
9 The officers retreated off the porch and on to the driveway for their safety and told you to drop the knife. You barged out of the front door and began pacing along the front porch. You held the knife in your right hand. The officers repeated their request that you drop the knife and positioned themselves behind the front fence.
10 You moved off the front porch and onto the driveway. You began to rock back and forth and yelled out incoherently. The officers could comprehend some of your statements such as “leave me alone” and “just shoot me”. At other times you appeared to be on the phone and yelling at someone while talking to them. By this time smoke had begun to billow out of the house. The officers moved further away to a location across the street as they were in fear of their safety. You began to walk towards the officers and picked up a broken shard of glass. You took a few steps before putting the shard of glass to your neck. You told the officers to shoot you and that you would stab your neck with the glass. You stood at the fence line of the property holding the shard of glass in your hand.
11 You paced up and down the driveway and screamed aggressively. You then sat on the front fence and squeezed two pieces of glass that you held, one in each hand. This caused you to cut your hands. The police officers convinced you that no one was interested in hurting you. You dropped the shards of glass. The police officers were then able to restrain you and arrested you under s351 of the Mental Health Act 2014.
12 It was now apparent that the house was well alight. The fire brigade was called to assist. Officers notified those in the neighbouring properties to leave their homes for their safety and congregate at a position further south to the property.
13 You continued to act erratically and cursed at the neighbours on the street. Constable Wilson was tasked with monitoring you until ambulance officers arrived. You spat at Constable Wilson causing her to react and move in order to get out of the way. Spittle landed on Constable Wilson’s vest. You also yelled aggressively at the officer and attempted to kick towards her. Officers placed you in the back of the divisional van for everyone’s safety until the ambulance arrived. While inside the pod, you yelled loudly and kicked the door of the police divisional vehicle. Ambulance officers that arrived at the scene were concerned about transporting you to hospital in that condition. A decision was made to chemically restrain you. You were placed on a stretcher and a sedative was administered. You were then transported to the Northern Hospital for assessment.
14 Your aggressive behaviour continued at the Northern Hospital where you were verbally aggressive to hospital staff. You yelled out “I burnt my house down” and “kill me” to officers. The senior clinician at the Northern Hospital determined that you were exhibiting symptoms of behavioural disturbance and you were therefore discharged under the Mental Health Act 2014. You were then arrested under s459 of the Crimes Act for committing criminal damage by arson (charge 1).
15 At 8.40pm you were transported from the Northern Hospital to Preston Police station for processing. You remained uncooperative and continued to yell abuse at police while you were restrained in the pod of the divisional van in which you were being transported. You kicked at the van which caused it to shake throughout the journey. At 9.30pm the officers arrived at the police station. At this time they noticed both windows of the pod had been kicked and damaged to such an extent that the inside perforated steel sheet was dinted towards the exterior of the window, which disabled the window from use. For the safety of police members and due to your continued aggression, you were transferred directly to the Melbourne Custody Centre without interview. During the trip you continued to act violently and kick at the police van, causing it to shake. The windows of the pod had become more damaged with the outer external sliding plastic being split, rendering the window unstable (charge 2).
The fire and damage caused by it
16 The fire brigade found that the majority of the fire was concentrated towards the back of the house and in the kitchen area. Forensic Officer, Laura Noonan, at the Victoria Police Forensic Services Centre examined the property in order to determine the cause of the fire.
17 Most of the plaster inside the kitchen and dining area had fallen off the walls, and the ceiling. Roof tiles had collapsed and the roof timbers were heavily charred. The fire had spread through the roof space causing the ceilings to collapse in the lounge room, laundry and bathroom. All other rooms were heavily sooted.
18 In Ms Noonan’s opinion the fire was caused by the ignition of available combustible materials at the northern end of the dining table, which included clothes, papers and timber furnishings. She was unable to determine the source of the ignition but considered that its most probable source was the direct application of a match or cigarette lighter.
19 The house was owned by the mother of George Georgiadis. The property was insured. The insurance company determined that over half the roof trusses had been damaged beyond salvation and those remaining were significantly structurally affected. The property was assessed as being a total loss by the insurance company. The total amount of loss estimated by the insurance company was $520,000.
Gravity of offending
20 The facts in this case are very serious. The aggravating aspects include that you committed the offences while you were subject to two court orders. Both orders had conditions attached to them which required you to receive psychiatric treatment.
21
In 2018 the Heidelberg Magistrates’ Court adjourned a hearing for 12 months upon your undertaking to be of good behaviour to 3 December 2019 and to continue to engage with Associate Professor Peter J Doherty for the duration of the undertaking. A second order was imposed at the Broadmeadows Magistrates' Court on 15 July 2019 requiring you to be of good behaviour to
16 July 2020 upon your undertaking to seek and receive psychiatric treatment.
22 In Anderson v The Queen; Smith v The Queen[2] the Court of Appeal stated that arson is a serious crime. The Court of Appeal referred to the judgment of Murphy J in R v Halden[3] who said of arson:
It is a crime which may be committed in a wide range of circumstances. The property damaged may vary from a book to a mansion and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.
The penalty may also vary according to the circumstances in which the crime is committed…
[2] [2019] VSCA 42, [70]-[71].
[3] (1983) 9 A Crim R 30, 38-9.
23 You engaged in offending that was very dangerous. The fire was lit in a residential setting during the middle of the afternoon. It was behaviour that exposed a number of people to risks to health and safety and required police to evacuate those who resided in the neighbouring properties and move those neighbours to a safe location away from the fire and smoke. It also placed neighbouring properties at risk, particularly the house to the southern side of the property as the fire spread through the victim’s house.
24 The victim’s house was severely damaged by the fire. It caused structural damage to the property and was unable to be salvaged. The property was a rental property which was insured for $400,000 plus $30,000 covering 52 weeks of rental loss. The total amount of loss estimated by the insurance company was $520,000 leaving the victim out of pocket of $90,000.
25 As has been pointed out by your counsel, there are some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity. I accept Ms Lechner’s evidence that you expressed regret and shame for your actions and empathy for the home owner for your actions.[4] In the circumstances I accept that in your case your plea indicates some remorse for your actions.
[4] Exhibit 2, p7.
26 I have been told something of your personal history and your circumstances. You were born in Queensland on 17 July 1995 and are 25 years old. At the time of the offences you were 24 years old.
27 You are the only son of Sophia Panton and Michael Brett. Your parents separated when you were one or two years old. Your mother moved to England about ten years ago when you were fifteen years old and you felt abandoned and rejected. She was previously in a relationship with your stepfather Ken. You report a good relationship with your father and Ken.
28 You lived on and off with your mother up until the age of twelve or thirteen when you lived with your father.
29 You grew up in Mildura and the northern suburbs of Melbourne. You attended numerous primary schools. You were diagnosed with ADHD at the age of 5 and were prescribed Ritalin. You were sexually abused as a young child by a friend’s older brother. You attended two high schools in Mildura and two or three high schools in Melbourne. You commenced year 10 at TAFE but were “kicked out”
30 Since leaving school, you worked as a labourer and concreter on a number of construction sites. Your last job was at a construction site in Footscray where you worked until one month prior to being remanded. The longest you stayed in one position was about two years. Since leaving school you have had employment about 70 – 80% of the time.
31 You have a young daughter from a short term relationship. You were not having any scheduled visits with your daughter in the months before the offending on 25 November 2019. Your daughter is 18 months old.
32 You stopped working two months before the offending in November 2019. Since ceasing work, you said that you had no source of income for several months and that you were not receiving unemployment benefits as you were unable to organise yourself. You have led a chaotic lifestyle and spend most of your days engaging in PlayStation and taking drugs.
33 You commenced smoking cannabis when you were 15 years old and have continued to smoke to the present time. You have also used “a bit’ of cocaine and ecstasy. You started using 1 gram of ice per day for 4 – 5 days prior to these offences. You told Ms Lechner that “prior to getting locked up, I was using Xanax, Ice and drinking…Macedonian grappa …about half a bottle at night…I had this cocktail and went out and stuffed up.”
34 You are currently prescribed 30 mgs of Avanza (anti-depressant).
35
You have admitted before me to prior convictions. It is relevant that on
15 July 2019 you were sentenced without conviction by the Broadmeadows Magistrates' Court for causing criminal damage.
36 A report by Associate Professor Peter J Doherty[5] and forensic reports dated 26 November 2019[6] and 27 November 2019[7] respectively have been tendered. I have read those reports and take the contents into account. I also take into account the letter dated 26 August 2020 by your father[8] which speaks of the extreme difficulty and rejection you experienced when your mother left Australia when you were twelve years old. She has not returned.
[5] Exhibit 4.
[6] Exhibit 5.
[7] Exhibit 6.
[8] Exhibit 3.
37 I have been informed of certain subsequent offences which were committed before the current matters. It is alleged that you punched an uber driver on
25 September 2019, attempted to grab the steering wheel and then damaged the vehicle. At approximately 2.45 pm you arrived at the BP Service Station located at 97 Hughes Parade, Reservoir. You damaged a taxi with a brick. You were conveyed to the Alfred Hospital under police guard. You were admitted to the Inpatient Psychiatric Unit at the Alfred Hospital on
27 September 2019. You were discharged from the Unit on 30 September 2019. You told Dr Zergiotis that it was this incident that caused you to stop work two months before the offending in November 2019 as it led to your receiving injuries to your back.[9]
[9] Exhibit 2, pp 2 -3.
38 It is alleged that on Tuesday 29 October 2019 you were involved in a siege with police at approximately 9.00 pm at the property. You were making threats to self-harm and harm others and were observed in your bedroom holding a large hunting knife. It is alleged that the police observed
21 prohibited weapons in your bedroom which were seized. You surrendered peacefully to the police at approximately 11.50 pm.
39 Those matters are listed to be heard as a plea on 30 September 2020 at the Heidelberg Magistrates' Court.
40 The Crown concedes that you were out of control in the months leading up to the offending because of your extreme abuse of drugs.
41 There is an intervention order in respect of your father which will expire in January 2021. You were dealt with by the Magistrates' Court on 15 August 2019 for breach of a different Family Violence Intervention Order.
Rehabilitation
42 While you have been in custody, you have kept in touch with your father by phone. You have written letters to your grandmother and aunt explaining that you have gained weight and have been exercising regularly. Your father and aunt attended the plea hearing via video link to support you. Whilst in custody you have been working in several jobs including laundry. You have also undertaken several courses and received statements of results from the Box Hill Institute.[10] Your father states that he will provide you with accommodation when you are released from custody.
[10] Exhibit 7.
43 In my view the prospects of your rehabilitation remain guarded and will depend on your ability to abstain from the use of drugs and your ability to maintain contact with the mental health services and take prescribed medication.
44 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. 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. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
45 On the other hand I do not apply those considerations with as much force as I might if you were older, for you are a young offender and must and will be sentenced as such. Your rehabilitation is a primary concern in fixing an appropriate sentence.
The application of the principles in R v Verdins[11] (Verdins)
[11] [2007] 16 VR 269.
46 In Verdins the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways.
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
47 The defence submits that limbs 5 and 6 of Verdins have been enlivened but does not rely on limbs 1 – 4 of Verdins. The prosecution concedes that limbs 5 and 6 of Verdins have been enlivened.
Verdins 1 – Was your moral culpability reduced?
48 In a report dated 5 August 2020 Carla Lechner, clinical psychologist, stated that you present with symptoms of alcohol and cannabis use disorder and exhibit sufficient symptoms to fulfil the criteria of a diagnosis of a Borderline Personality Disorder (DSM5)[12]. Ms Lechner stated that at the time of offending you were feeling suicidally depressed and that “the combination of his extremely high level of distress, his desire to end his life and the effects of illicit drugs would all result in impaired judgment, an inability to make calm and rational choices, or to think clearly or consequentially and a tendency for disinhibited behaviour.”[13]
[12] Exhibit 2 , p 4.
[13] Exhibit 2, p 9.
49 The prosecutor referred to the following passage in Verdins:
Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it - or is likely to affect him/her in the future.[14]
[14] [2007] 16 VR 269, 272.
50 The prosecution submitted that the psychiatric and psychological evidence does not establish a causal connection between any mental impairment experienced by you and your offending behaviour. The evidence shows that it was your consumption of a cocktail of drugs and alcohol that affected your mental functioning at the time of the offending and not any organic mental condition.
51 The prosecution submits that the behavioural disturbances you exhibited were medically attributed to your significant substance use disorder. You had consumed cannabis, methylamphetamine, Xanax, and alcohol for some time prior to the offending and immediately before the offending.[15]
[15] Exhibit 2, pp 4-5.
52 Immediately after the offending on 25 November 2019 you were taken to the Northern Hospital for assessment. The Forensicare Mental Health Report dated 27 November 2019 records the result of that assessment as follows:
… the Northern AMHS emergency department cleared Mr Brett of any serious mental illness, and diagnosed him with a significant substance use disorder.[16]
[16] Exhibit 6, p 5.
53 Two days after the offending, Consultant Psychiatrist Dr Ria Zergiotis found on her examination that “[t] there was no evidence of depression or psychotic features…”[17]
[17] Exhibit 6, p 5.
54 I accept the prosecutor's submission and the concession made by the defence that the first four limbs of Verdins were not engaged and do not apply.
Verdins principle 5 and 6– will a custodial sentence weigh more heavily on you than it would on a person in normal health? Is there a serious risk that imprisonment will have a significant adverse effect on your mental health?
55 The defence submitted that a sentence of imprisonment would weigh more heavily upon you than it would on a person in normal health and would lead to further deterioration of your mental health.
56 In her report, Ms Lechner stated:
Despite the apparent improvement in his mental health since coming into custody and being abstinent from drug use, Mr. Brett is at constant risk of relapsing to high levels of anxiety and depression on account of his idiosyncratic interpretation of his environment. He may, for example, engage in self-harm if he is suddenly out of favour with a perceived ally. He is also likely to find it difficult to manage a lengthy sentence as he lacks the coping skills to maintain an emotional equilibrium and as such, in the longer term, imprisonment will be detrimental to his mental health. Mr Brett does not have access to the treatment that he requires within a custodial setting. Ideally, he requires ongoing drug rehabilitation counselling in addition to psychological support that utilizes a Dialectical Behaviour Therapy approach to intervention.[18]
[18] Exhibit 2, p 10.
57 Having considered the whole of the evidence, I accept Ms Lechner’s evidence that the imposition of a term of imprisonment would weigh more heavily on you than it would on a person in normal health. I am also satisfied on a balance of probabilities that there is a serious risk that imprisonment will have a significant adverse effect on your mental health. I take these matters into account in your favour in mitigation of sentence.
Sentencing Submissions
58 The defence submits that the offending is serious and warrants a term of imprisonment. The defence further submits that you need on-going supervision upon release.
59 Your counsel submitted that your early plea, relative youth and a relevant but limited prior history and disadvantaged background and mental health issues, in combination, justify the imposition of a sentence involving a non-parole period or a combination sentence with a community correction assessment.
60 Your counsel submitted that you would benefit from some supervision on parole. Your counsel conceded that a non-parole period would be of more benefit in the circumstances of your case than a community correction order.
61 The prosecution submitted that a term of imprisonment together with a non-parole period is the appropriate sentencing disposition.
62 In my view this is serious offending. I have considered s5(4C) of the Sentencing Act 1991. Having considered the whole of the evidence and the submissions made by counsel a term of actual imprisonment is required. The imposition of a Community Correction Order in this case would not give sufficient effect to the principles of the protection of members of the community from you, the community’s denunciation of your conduct and the need to impose a just punishment.
63 In Boulton v The Queen [19], the Court of Appeal stated:
There will, of course, be cases where the sentencing court concludes, after engaging in the deliberation now required by s5(4C), that certain sentencing purposes – typically, just punishment, denunciation and/or deterrence – cannot be sufficiently served by the making of a CCO, even with onerous conditions. Consistently with the principle of parsimony, the court would then impose the shortest term of imprisonment consistent with the achievement of those purposes.
[19] [2014] VSCA 342, [140].
64 These are without doubt serious offences. In all the circumstances I have no alternative to the imposition of a custodial sentence. I propose to record convictions on both charges and sentence you to be imprisoned as follows:
Charge 1 – arson - to a term of imprisonment of two years and six months.
Charge 2 – damaging property – to a term of imprisonment of six months.
65 The base sentence is the sentence imposed on charge 1, arson. I direct that three months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. That results in an effective sentence of thirty-three months. I direct that you serve a minimum term of twenty-two months before becoming eligible for parole.
66 As prescribed by s18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is, Madam Prosecutor, 281 days?
67 MS KARAMICOV: That will change slightly, Your Honour, because up to today it comes to 290 days and that is not including today.
68 HER HONOUR: Do you agree with that?
69 MR McLENNAN: Yes, Your Honour, thank you, Your Honour.
70 HER HONOUR: Is 290 days. I direct that such be noted in the records of the court.
71 Section 6AAA of the Sentencing Act 1991 requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense, and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years and nine months on Charge 1 and nine months on Charge 2. I would have directed that four months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1, making a total effective sentence of four years and one month. I would have directed that you serve a period of thirty three months before being eligible for parole.
72 Are there any further matters?
73 MS KARAMICOV: No, Your Honour, thank you.
74 HER HONOUR: Mr McLennan?
75 MR McLENNAN: No, thank you, Your Honour.
76 HER HONOUR: Thank you. Adjourn the court.
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