Director of Public Prosecutions v Liddell
[2022] VCC 2011
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01494
Indictment No. L10397524.1
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON STEPHEN LIDDELL |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2022, 21 September 2022 | |
DATE OF SENTENCE: | 16 November 2022 | |
CASE MAY BE CITED AS: | DPP v Liddell | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2011 | |
REASONS FOR SENTENCE
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Catchwords: Arson with intent to endanger life, ICI x 2. Aggrieved ex resident who had been evicted two days earlier. Lighting of fire with accelerant. 3:00AM. Residential premises. Multiple residents asleep, many upstairs. Fire set at top of stairs of two storey home. 41 years of age as at sentence. Some criminal history - Early though not earliest plea - Worboyes v The Queen [2021] VSCA 169 – Remorse; R v Verdins [2007] VSCA 102 limbs 1, 3 and 4; Disadvantage; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; Marrah v The Queen [2014] VSCA 119. COVID-19.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Raimondo | Office of Public Prosecutions |
| For the Accused | Mr D. Sala | Emma Turnbull Lawyers |
HIS HONOUR:
1 Aaron Stephen Liddell, you have pleaded guilty to three charges on the indictment filed in this court, being one charge of arson with intent to endanger life and two charges of intentionally causing injury.
2 You are now 41 years of age. You have a criminal history of some relevance to my task.
3 The summary of prosecution opening dated 7 July 2022 correctly sets out the maximum penalties. I will not repeat them.
Facts
4 The prosecutor, Mr Raimondo, opened the case to me on 5 August of this year in accordance with that summary which was marked as Exhibit A on the plea.
5 Your counsel, Mr Sala, told me that it was an agreed factual statement. In those circumstances, I see no need then to set out the full sentencing facts in my reasons as I will sentence pursuant to that agreed summary.
6 This was really serious offending and so much was readily conceded by
Mr Sala.
7 You had been living at 13 May Street, Bundoora, since mid-2019.
Your counsel told me that this followed your discharge from
Thomas Embling Hospital in early July of that year. You had an appointment for ongoing mental health care in the community but you did not attend. You stopped taking your medication. 13 May Street was a two storey home but one leased to a variety of tenants who had individual rooms within. Your stay there had been problematic and endeavours had been taken by the owner to bring the tenancy to an end, see p121 of the depositions. I referred to that in discussion with counsel.
8 On 13 February 2020, police were called as a result of your conduct when you were yelling and breaking some windows. You were evicted by the owner and told not to return by the police. The very next afternoon or evening, you had attended back at the premises and committed more damage with some large stones. I hasten to add this is just part of the background. You do not fall to be sentenced by me for the damage caused on either of these earlier
two dates.
9 However, regrettably, you went back to this house in the early hours at around
3 am on 15 February 2020. You undoubtedly knew the house was occupied by many residents. You knew the layout of the house. You knew the occupants. Unsurprisingly, they were asleep at this time. Three were asleep in their bedrooms upstairs. They are the victims named in Charge 1 on the indictment. Your selection of the location for the pouring of a quantity of accelerant was pretty disturbing.
10 Two other residents were asleep in their bedrooms on the lower level of the house.
11 This house had no functioning smoke alarms but that state of affairs does not aggravate the offence as I am not satisfied beyond reasonable doubt that you were aware of that fact.
12 You attended within the premises whilst those residents were sleeping. You attended with a variety of accelerant. You poured accelerant around the house. Much of it was poured out at the top of the stairs. You then lit a fire and left without raising any alarm at all.
13 So this was not someone throwing an object such as a Molotov cocktail through a window in the early hours with the probability or possibility of residents being roused from their sleep and alerted to the danger.
14 It is a matter of pure chance that you are not before another court, the
Supreme Court, on the most serious of charges for there were five residents asleep in their respective bedrooms, three of which were upstairs, as you well knew. The fire engulfed the upper storey and the residents were lucky to escape with their lives.
15 You admit by your plea lighting this fire with the intention of endangering life. That requires either that your purpose or one of them was to endanger the life of another or knowledge or belief that the life of another is more likely than not to be endangered - see s197(5) of the Crimes Act.
16 The summary describes the movements of those within the house and I will not set it all out in these, my reasons. Mr Bhargava woke to the smell of burning. He opened his door and saw flames in that area and he believed he had no way out of the house. The heat was intense and smoke was pouring into his room. He was having difficulty breathing. He jumped out of the second story window. He had no other way out of the house. He observed you outside the front of the premises. You were watching the blaze and were heard to say words to the effect, 'Oh, that's fine', before turning and walking away quite casually.
17 Meanwhile, Mr Malwaththage awoke to find he was also having difficulty breathing. He could hear glass breaking. He too was upstairs. He went to his door and he found the hallway ablaze. He banged on his door to try to alert his neighbour, Mr Nalawattha. He opened the door to try to see if he could see Mr Nalawattha; he could not. Smoke was pouring into his room so he shut the door. He wet a t-shirt and covered his head and jumped out of his window but not before handling the hot window frame. Once free of the property, he was screaming out for help for Mr Nalawattha.
18 Very fortunately, Mr Nalawattha had been awoken by the screaming from that adjacent bedroom. He went to his door and saw that the house was on fire. The fire was large and hot and he had difficulty breathing. He left his room and somehow exited the house through the back door on the first floor but he sustained significant burns to both hands whilst doing so. He had difficulty opening the security door.
19 The summary describes the injuries sustained by he and
Mr Malwaththage - see paragraph 19 and 20.
20 Police attended at around 3:15am and found a panic-stricken scene with the house engulfed by flames. It became apparent that everyone was in fact accounted for.
21 As I say, it is a matter of pure luck that people did not perish in this fire.
22 A forensic scientist subsequently examined the scene and found a number of articles including a near empty uncapped 4 litre kerosene bottle in the garage; a partly melted and uncapped empty 500 mil acetone bottle at the stairwell landing; an uncapped and empty 4 litre kerosene bottle inside the main front door on that level, and an empty acetone bottle underneath the table in the kitchen on that level. The summary sets out the expert's findings at paragraph 23 and 24. Plainly enough, an accelerant had been employed by you. In fact, the residents had smelt that upon waking. The pattern of damage disclosed that the accelerant had been poured on the stairwell and towards the top of those stairs. It is incredible that you would do such a thing but you did; hence, the nature of Charge 1. Arson is a serious enough offence in its own right; arson intending to endanger life is in a very different league, even though it has the same maximum penalty.
23 Later that morning at around 7:55am, you attended at the Epping police station in company with a member of a supermarket staff. There had evidently been some allegation of theft and you smelt strongly of petrol or diesel. Police members who had been investigating the fire had been informed of your presence at the time of the fire by Mr Bhargava, who had seen you out in the street, and when they got wind of your presence at the police station, you were the arrested on this matter.
24 You were not fit to be interviewed. I will come back to discuss that later.
25 You have been in custody since your arrest. The agreed summary sets out some of the chronology of the matter before the court. There was a two day contested committal conducted last year and then many listings of the matter in this court leading into the ultimate resolution on 28 March of this year. The plea was meant to proceed on 5 August but the matter was opened by the prosecutor and then was adjourned. The defence plea was not ready to proceed and so the matter was adjourned part heard.
26 So much then for what is really just a brief summary of the offending. I will sentence pursuant to the far more detailed agreed statement which is marked as Exhibit A on the plea. In addition, there are photographs in the depositional material depicting the house and for that matter, the injuries sustained. Many of the photographs are footnoted in the opening; also the medical statement and medical records are referred to, as well as a floor plan found in the depositions. I have regard to all these matters.
Impact
27 There are two impact statements in this case, one from the owner of the house and one from the victim the subject of Charge 2. He is also one of the victims the subject of Charge 1. That is Mr Asiru Nalawattha.
28 The burns sustained by him were significant; significant burns to his hands as well as burns to his forehead, left cheek, lips and both ears. One can only imagine the level of pain involved in the burns that he suffered. He had to spend six days in hospital and then engage in a lengthy enough process of rehabilitation. His hands were implicated, and so taking up his usual work as a cleaner was simply not an option for him. There was also an updated statement from him (which was marked as part of Exhibit B) detailing the way the injuries have affected him. He is left with significant scarring. The impact for him has been very sizeable indeed. It has been physical, it has been emotional and there has also been, as he describes, financial impact as well.
29 The owner of the property has also made an impact statement. It should not be forgotten that the charge is arson with intent to endanger life. The arson involved the destruction of the house by fire to achieve that purpose, to endanger life. The owner of that property comments in his impact statement about the serious way your crime has affected him and that is mainly the financial cost to him. There has been large impact upon him as well.
30 No doubt of course there was also impact felt by the victim of Charge 3,
Mr Nalawattha, who sustained less significant burns to his fingers and for that matter, by the other residents present on the night who are not named as victims. This was a frightening event for anyone who happened to be in the house at the time.
31 I take into account the impact of your crimes as I am required to.
In mitigation
32 Your counsel, Mr Sala, relied upon written plea submissions dated
30 August 2022. He initially filed a report from Dr Deacon dated
10 August 2022, but an email was sent on my behalf indicating that this report itself indicated it was an updated report and stated that it needed to be read in conjunction with the previous report. Mr Sala sent back an email dated
20 September responding to the email and setting out his reasons for not having provided the earlier report. An email reply was sent on my behalf reminding him that the report he had filed indicated that it needed to be read in conjunction with the earlier unfiled report and that the filed report would not repeat the historical information contained in that first unfiled report. The filed report also contrasted matters reported on by you in that report to matters previously mentioned or not mentioned by you on the first consultation with
Dr Deacon. Of course, that was impossible to decipher without having both reports. My view expressed by email to Mr Sala was that the report could not stand alone and that I would hear submissions on that topic the following morning at the plea. Mr Sala then filed the report instead and the following day he made submissions on the plea about the permissible use of that first report. So as there was discussion on the plea about that issue and the relevance of the first report, and that was raised on the plea in front of me, I will mark and have marked that correspondence as Exhibit 4 on the plea.
33 It follows then that by the time of the plea, Mr Sala had filed that earlier or previous report dated 27 July 2020.
34 I want to make it plain that by mentioning these matters, I am not being in any way critical of Mr Sala.
35 I do accept that the first report was focusing predominantly on the issue of fitness. It can be contrasted with the more detailed report which relates to a point in time after you had decided to plead guilty. However, the author of that second report made it clear that his second report should be read in conjunction with the first and as I have said, he even referred to some differences in your account in the second report, so it seemed plain to me that each needed to be before the court.
36 In addition, though not filed by either the defence or the prosecution, I mentioned to the parties that on the first date of the plea, some documentation had been, for whatever reason, sent to the court unsolicited from a nurse at Forensicare. There were two documents. They seemed to be provided in contemplation of the possibility of your release into the community which of course was quite unthinkable. Though they had not been called for by the court or by either party, I had those documents marked as part of Exhibit D and they really played no further role in the plea or my ultimate sentence. There is no question that you are not travelling well and there never has been any question on the mental health front. Those same style of documents have been sent again today and again they have been marked as part of
Exhibit D. The reasons for them being sent are not so much to inform the court about your present state but to make provision in the event that you might be released which of course is not going to happen today.
37 In the course of the plea, there was a good deal of information provided to me as to your family and personal background including your educational and employment history. Mr Sala made submissions about the gravity of the matters I am dealing with and submitted that this was more serious than any of your past offending. He made submissions as to your prospects of rehabilitation and your risk of re-offence. He took me to your psychiatric diagnosis and he made submissions as to as the relevant sentencing purposes in play in this case.
38 Mr Sala conducted a very thorough plea on your behalf. He relied chiefly upon the following matters in mitigation:
· Your guilty plea in the midst of the global pandemic and the stage of that plea;
· The presence of some very limited or basic remorse;
· Your disadvantaged background; (Bugmy[1]/Marrah[2]);
[1]Bugmy v The Queen [2013] HCA 37; 249 CLR 5719
[2]Marrah v The Queen [2014] VSCA 119
·
The application of a number of limbs from the case of Verdins[3]
[3] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
(limbs 1, 3 and 4);
· The impacts of COVID-19 upon your custodial experience to date and to a lesser extent into the future; and
· finally, the delay in the matter being finalised.
39 He conceded that community protection was a matter of real significance given the nature of the offences and the nature of your mental health predicament, and your professed resistance to treatment and medication. He conceded that a substantial term of imprisonment was inevitable here and one plainly requiring the fixing of a non-parole period but perhaps, he argued, with provision for the possibility of a decent period on parole so that there could be a compulsion exerted by the Adult Parole Board for you to adhere to your treatment conditions.
Prosecution
40 The prosecutor, Mr Raimondo, had prepared some brief written sentencing submissions marked as Exhibit C. They were not in any way controversial and I do not see any need to set them all out. The Crown did not challenge the existence of some of the matters in mitigation but they raised the issue of community protection. They argued that that was a matter of
paramount importance given the nature of this offending and the contents of the report of Dr Deacon.
41 Mr Raimondo made some submissions as to the gravity of the offending and the principles in play. He referred the court to a couple of so-called comparable cases but I read those cases and they were not on all fours. The
Director of Public Prosecutions of this State was calling for a head sentence and a non-parole period but so much had already been appropriately conceded by your own counsel.
42 I will discuss these various submissions shortly.
Background
43 I turn firstly though to your background and I am going to do that quite briefly, as there is material before me as to your background, including in the first report of Dr Deacon, as well as in the written outline of Mr Sala. There was also a letter from your mother spelling out some of the unhappy details of your background. I see no point in just repeating back to you all of this material which I do actually accept.
44 Very briefly then, you were born in July 1981, so are now 41 but were 38 or so at the time of the offending. You were born in Australia. Your parents separated when you were about four years of age. You had limited contact with your father. You lived with your mother and siblings. You were the
third youngest and it seems have had only limited contact with your siblings in recent years. Your mother had re-partnered when you were five or six and you had what was described as a challenging relationship with your stepfather. You were made a Ward of State at the age of 13 or so and you went to live in a hostel in Heidelberg. Your mother describes that process or the setting of your admission to care. She cites neglect by your father and a lack of love and support directed towards you. You were a Ward for the remainder of your childhood. Schooling was fragmented and you have no real job skills or trade. You have worked mainly as a labourer or courier driver but not for many years. You have been in receipt of the disability support pension, presumably for your mental health condition. Drugs have been very much problematic for many years though you do not really recognise that fact.
45 You have the serious mental health issues that are spoken of in the reports of
Dr Deacon. You have schizophrenia and you have had for many years. You are relatively insightless as to that condition. You do not believe you have any illness. You choose not to take prescribed medication, but you use illegal drugs and you believe that they will not impact upon your mental health. You have been resistant to any treatment when in the community and also whilst in prison, even though it is very clear to those who treat you that the treatment provides a substantial improvement in your condition.
46 You have a lengthy enough criminal history. Now, you do not fall to be sentenced a second time for any of that past criminal conduct, nor does it aggravate the offending I am dealing with. I must pass only proportionate sentences upon you. However, I do have to make judgments as to the weight to be given to specific deterrence and community protection. I have to assess your prospects of rehabilitation and that past history is at least relevant to these considerations. I am not going to conduct an audit in these reasons of your criminal history. There is no need to do that. You have been dealt with many times in the past by courts for a variety of offences of varying levels of seriousness, though it must be said, never for a crime anywhere near as serious as the arson with intent that I am dealing with today. There are a couple of assault emergency worker offences and a range of other offences including drug and dishonesty offences. You have breached a number of court orders and you have been sent to prison on a number of occasions including once with a non-parole period.
47 You refuse to take the appropriate medication in prison and make clear that you will likely refuse to be medicated or treated if released and that you will continue to use illegal drugs. Your counsel concedes that sentencing is a challenging task in this case owing to your mental illness and your attitude to that illness.
Bugmy/Marrah
48 I have mentioned your personal background. It falls shy of the level of some of the very significant disadvantage sometimes seen in the courts but these really are simply matters of degree. It was plainly not an enviable background that you had.
49 An offender's circumstances and their experience during their childhood and their formative years must be considered in the sentencing process, not just out of some historical curiosity, but because the effects of social disadvantage are likely to have profound and lasting consequences, and in some cases, they can actually explain, but not excuse, the offending. They do not do that here at all.
50 Taking lifelong damage that is the result of childhood exposure to violence or physical abuse or neglect into account when sentencing is the mark of a humane society. It is no answer to say that those events occurred all those years ago when you were just a child. That is because the effect of these things do not just diminish with the passage of time. They do actually leave their mark. You had an unenviable early life, especially in terms of your father's attitude to you and you were admitted to care as a Ward of state. None of that can have been easy. None of it was good preparation for entry into adulthood.
51 It will always be matter of what weight to attribute to evidence of a disadvantaged background. Disadvantage will not attract the same weight in every case or in the same way. Sometimes, it might lead to a substantial reduction in moral culpability and also a sizeable reduction in the weight to be given to general and specific deterrence. That is not the position in this case at all. Sometimes, it might be enough to take it into account in a general way without any of these sizeable reductions or allowances. That is what your counsel was asking me to do, and I will.
52
The proper approach will always be determined by the nature of the evidence. It will depend on the nature and extent of the disadvantage, the nexus if any, with the offending (though none is required), but also the nature of the crimes and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation - see the case of
Terrick.[4]
It does not all flow in one direction either. It can even lead in some cases to a finding of a greater need for community protection and your counsel recognised that in his written submissions.
[4]DPP v Terrick [2009] VSCA 220
53
I give full weight to your background. I do take into account your background in a mitigatory fashion though it plainly does not explain this offending in any way or bring about any sizeable reduction in culpability at all. I apply those
Bugmy
or Marrah principles as they have come to be called. It seems clear to me though that your mental health issues are more connected up with the faltering trajectory of your life. Nor was your counsel relying on any of the cases dealing with those rare occasions in which drug use might be mitigatory. I do accept though that your early life experiences may have played some role in your decision to use drugs. So I take into account your background in the manner contemplated by Mr Sala's submissions to me.
Guilty Plea
54 I turn then to consider the other matters raised on your behalf. The first of those matters is your guilty plea. Your counsel argued it was neither early nor late and I accept that characterisation. It probably should have settled earlier though I accept that your mental health condition would have thrown up some issues, including challenges in taking instructions from you. There was at one point consideration of your fitness to stand trial. That was resolved by
July 2020 with that first report from Dr Deacon. It was plainly not the earliest of pleas but some are later, if not a good deal later than yours. It was your right to run a contested committal hearing and you must not be punished for doing so. I note also there were some other charges, being a serious injury and aggravated burglary, and they ultimately have not proceeded.
55 I will treat this as a relatively early taking of responsibility for your crimes, and as a result, the time, cost and the effort of a trial up in this court has been avoided; at least, witnesses have not been required to give evidence at trial. Giving evidence in a trial can be a stressful experience. The witnesses have been entirely spared that experience, though not spared the experience, some of them, of giving evidence in the Magistrates Court.
56 You have facilitated the course of justice in these various ways and you must be rewarded. Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes v R.[5] In the course of the COVID-19 global pandemic, a very large backlog of cases has arisen, both in this Court and in the Supreme Court above us and the Magistrates Court below us. Your case was at one point part of that large backlog but that changed when you pleaded guilty at that relatively early stage. I take these various matters into account in mitigation.
Remorse
[5]Worboyes v The Queen [2021] VSCA 169
57 You pleaded guilty at an early enough stage and a guilty plea is often indicative of at least some remorse. However, in this case, there are many statements in your discussions with Dr Deacon which would suggest otherwise. I am prepared to find that there is some quite limited remorse in this case as your counsel urges me to. It is, at best, very basic. I take the existence of this minimal remorse into account in your favour. Your mental health issues may well be impacting upon your ability to feel remorse or empathy but I can only take into account mitigatory matters that I am satisfied exist and fulsome remorse most certainly does not exist in this case and nor does your counsel suggest that it does.
Rehabilitation
58 I turn now then to your prospects of rehabilitation.
59 You were no silly teenager committing his first offence. You have a lengthy enough criminal record and have not taken many of the chances offered to you by the courts. You have long term drug issues which really you have no great desire to address and you have serious mental health issues which significantly cloud your future prospects. This offending undoubtedly involves a sizeable escalation in offence seriousness.
60 There are the views of Dr Deacon and what he says as to your level of insight and future risk and what he says about treatment suggestions. Your discussions with Dr Deacon can give the Court no comfort at all. You really are quite insightless and you refuse to acknowledge the existence of any real illness or any need for treatment or for medication, and I believe that is unlikely to change.
61 This was serious offending committed by you. Your counsel argued that there was really only a limited capacity to deter you, that specific deterrence ought be moderated and I accept that there can be some moderation of specific deterrence, but when I come back to consider your risk of relapse and of offending, it is high. There is that heightened risk owing to your drug use and your resistance to treatment and the deterioration of your mental state when not appropriately medicated. You have family support from your mother, who is once again present in court, and you had family support at the time of the offending. There is only so much that she can do for you.
Dr Deacon comments on the level of risk you present - that is, the risk of relapse. It is high and there is not any reason for me to think you will change your tune and accept the existence of your illness; and the need for treatment and medication or the need to desist from using illegal drugs. One can take only with a grain of salt the vague suggestions made by you to
Mr Sala that you would undertake treatment. I hope you will develop insight into your illness and the need to take your medication and the need to remain abstinent from illegal drug use, but the present signs are not at all promising.
62 I can only be guarded as to your future prospects. I do not conclude there are no prospects of rehabilitation whatsoever, but I cannot presently rate your prospects highly at all. They are relatively poor in my view and there is a decent risk of offending in the future. Community protection is plainly a powerful factor in this case.
Delay
63
Let me deal briefly with the issue of delay that was raised on the plea - see paragraph [5], [6], [16]-[18] of the written submissions. It was not a large plank on the plea, that is for sure, and Mr Sala made that very clear. The chronology is set out in some detail in the prosecution summary and also in your counsel's submissions. I am not going to wade my way through it. You were committed to this court on 12 July of last year and thereafter, there were a large number of mentions. I have already mentioned the defence adjournment application once the matter was listed for plea in August of this year. This is not a case of the prosecution or the police sitting idly on their hands and adopting an unduly leisurely approach to the prosecution of the matter, nor does your counsel suggest for one moment it is that sort of case. It is plain there were some issues arising in relation to your fitness to plead and they had to be investigated. That issue was seemingly resolved by
July 2020. Thereafter, the reality is the ongoing delay was in large part connected up to your choice to run a contested committal and then in the way the matter came to be ultimately negotiated. Mr Sala told me on the first day of the plea that you had some doubt yourself as to your guilt and your mindset is spelt out in that first report of Dr Deacon. You denied the offending. Well, as I say, you were entitled to run the matter to committal and then to trial. The fact is though, the matter really probably should have settled a long time ago. There is really not that much in the delay point. It is not a powerful factor at all and nor did you counsel suggest that it was. You have not committed any further offences in the currency of the delay but have of course been in custody and you have not really been advancing your own position there as a result of your intransigence on the mental health front. I do accept that it cannot be easy having the matter pending over your head and I do not ignore that fact. So I take into account in a limited way this issue of delay. It is not a big point on the plea.
Verdins
64
There were some submissions made as to the application of the first, the
third and fourth limbs from the well-known case of Verdins. That is a decision of our Court of Appeal that deals with the impact upon the sentencing process of mental health conditions existing either at the time of offending or sentence or both. That is something of a gross simplification of those principles, but it suffices for present purposes. These principles are not dependent upon strict diagnostic labels. What matters is what the evidence shows about the nature, the extent and the effect of the impairment experienced and how it affected the offender either at the time of offence or how it is likely to impact upon their experience of prison.
65 The first Verdins principle says that if a mentally impaired offender is less morally culpable for their actions then it may not be appropriate to punish them as harshly as someone who is fully responsible. Well, that makes pretty good sense.
66 Moral culpability may be reduced if, at the time of the offence, the impairment reduced an offender's ability to exercise appropriate judgement, make calm and rational choices, think clearly, or appreciate the wrongfulness of their conduct or if it made them disinhibited or even obscured the intent to commit the offence or if it contributed causally to the commission of the offence.
67 Disinhibition or inappropriate or deficient judgment arising from drug use and the effect of illegal drug use is all too common but is very rarely mitigatory. It is not relied upon in a mitigatory fashion in this case at all and Mr Sala was explicit in that regard.
68 The effect of an impairment on moral culpability will always be a matter of degree. What a court is expected to do is to assess the gravity of the offending and examine the offender's conduct before, during, and after the offending in order to determine the extent of the impairment's contribution, if any, to the offending.
69 No direct causal connection is required but there must be some realistic connection. It is also worth noting that if the offence is serious, an offender's culpability may only be reduced to a minor extent even where the impairment is significant. Well, your offending was serious indeed.
70 This court is meant to engage in a rigorous examination of the evidence and that will not be limited purely to the evidence set out in an expert's report.
71 There is no doubt at all that you have been diagnosed with a serious mental illness. You have and had schizophrenia. It is an enduring condition and one that has regrettably been destabilised by your persistent illegal drug use in the community and your active avoidance of treatment and the necessary prescribed antipsychotic medication. You have a real lack of insight into the illness and that is not a new state of affairs. As I have said earlier, you even doubt that you have any illness. When treated appropriately, your condition improves substantially - see paragraph 3 of Dr Deacon's opinion. When not, your condition deteriorates. You had been discharged from Thomas Embling on 1 July 2019 and were booked for a follow up assessment through a local mental health team shortly after your release. You failed to attend. You were placed on a community treatment order but that was revoked and it was revoked as you could not be located.
72 You were then and still are resistant to being treated. So you were not appropriately medicated at the time of this offending, though of course you should have been. You were using illegal drugs which are not at all helpful. You should not have been. Since being received into custody, you have been to Thomas Embling on a few occasions, though I note that you did not go there on this current remand until about six weeks after being arrested. There is no suggestion you were viewed as being actively psychotic upon your receipt into prison on 15 February but of course by April 2020, there is no doubt that you were actively psychotic.
73 Dr Deacon says it is difficult to retrospectively characterise your state at the time of the offence. He says you were notably under the influence of ice and your psychotic illness was not being treated. Well, the illegal drug use was a choice that you made. Not being appropriately medicated or treated was your 'choice' but no doubt it is connected up with or influenced by the illness itself, so the word 'choice' has to be seen in that light.
74
Whatever might be said of your illness, you had an actual motive here as you had been evicted from the residence and you were not happy with that. You did not mention voices commanding you to burn down the house in your first discussion with Dr Deacon. He is explicit in mentioning that there were no command hallucinations described by you. You denied any such thing - see
Opinion 4 in first report. In fact, you just denied presence at the fire. There was no mention of these threats or your belief in these threats you say had been issued to rape your mother. Now, I do take the point made by Mr Sala that at that point when talking to Dr Deacon back in 2020, you were pleading not guilty. Those various things were mentioned when talking to him in
August 2022.
75 It is plain of course that no such threats were made at all, but did you believe that they had been? it is really hard to know what to make of your later account. You were seemingly prepared to misrepresent what you say now is the true position in the earlier discussion with Dr Deacon. You are guarded in your dealings with others so I suppose it is possible you were just that at the first interview but I do not know one way of the other.
76 There really is nothing else at all in the materials to support any suggestion that you actually held those beliefs at the time.
77 Dr Deacon says it is possible that you experienced a command hallucination; that there is a possible nexus between your psychotic condition and the offence, albeit one where your mental illness was destabilised by the voluntary ingestion of ice and of course your failure to be appropriately medicated. Well, possibilities get me nowhere. I have to be satisfied of matters in mitigation on the balance of probabilities.
78 Since being received, you have really not put your best foot forward. You say that you will refuse treatment and you have done just that in custody once transferred back from Thomas Embling. You state that you will refuse treatment and medication upon your ultimate release, and that you plan also to use ice upon your release from custody. Well, ice produces an added risk. Your risk of psychotic relapse is very high whilst you lack insight and whilst you openly refuse to voluntarily accept the need for treatment and express this intention to continue using ice - see Dr Deacon's opinion at paragraph [16].
79
What role then did your illness really have in these crimes, if any? There is not any need to display a causal connection, but Mr Sala was urging me to find that there was a direct causal link with you acting pursuant to a command hallucination. I am not satisfied on the balance of probabilities that you were acting pursuant to the command or auditory hallucination that has been described. Dr Deacon's opinion does not rise to that level. Is there, however, a realistic connection between your mental health condition and the offending. Well, that is a quite different question with an obvious enough answer. You have an enduring serious mental illness. You had that condition at the time and it was not treated. I know from the materials and from the expert opinion that your mental state deteriorates when you are not appropriately medicated. You had not been medicated for many, many months. Though I cannot be satisfied on balance of a true causal connection in the sense of you acting on the command hallucination, I am certainly satisfied on balance that your deteriorating mental health had a role in reducing your ability to exercise appropriate judgement. You were hardly in an optimum condition and there was an oddness to this extraordinary response taken in relation to being evicted from a house. There was an oddness to your behaviour in the lead in as described at paragraph 5 and 6. There was an oddness to your lingering around outside the fire and for that matter insisting later on that morning that someone accompany you to a police station the next morning whilst you were still reeking of accelerant. I am certainly not satisfied on the balance of probabilities of the existence of the voices or the command hallucinations. You did not mention that in the first conference with Dr Deacon at all. It is he that mentions that failure in his second report. You explicitly denied any such event when he first spoke to you. True it is that was when you were pleading not guilty but what does it say as to the reliability of your account to
Dr Deacon on either of those occasions.
80 It is however, just not reasonable to think that you were travelling particularly well. Plainly, you were not. You were not medicated and you wound up in Thomas Embling within six weeks of being remanded into custody. Your mother's efforts to find accommodation, the difficulties you faced there with other tenants, all suggest to me that you were not in the best mental health at the time of your crimes. Though it is not part of the agreed summary, I note that Mr Bhargava in his statement described you doing other things around the house which were, as he puts it, 'very strange', and, 'without reason', and that you were rambling in discussions - see p92. I note also you had evidently been talking to the police on the day of your arrest about having some form of diplomatic immunity and that you were judged to be unfit to be interviewed by a medical practitioner courtesy of serious concerns held about your mental state - see p64.
81 I do not doubt for one moment the application of the first limb of Verdins and of course I make some allowance in reducing your culpability.
82 Also, there is some moderation in the weight given to general and specific deterrence. They are far from eliminated here. The fact is I really cannot ignore the steps that you take which destabilise your mental health by not accepting treatment or medication and by using illegal drugs. What impact did the illegal drug use have in this offending; what role your mental health; what role the grievance at being evicted. It really is quite impossible to disentangle these things but I will make the allowances I have spoken of. What is very plain through from the report is the level of risk that you pose for as long as you are insightless and resistant to taking medication, and prepared to use illegal drugs, which has been pretty much your default position for a number of years, and which you assert will continue into the future. The mental health condition that brings about these Verdins moderations must be taken into account when I consider the weight to be given to community protection. Community protection becomes an important purpose of sentencing when I reflect on the nature and seriousness of this offending, and the expert contention that you are a high risk of relapse, and your counsel's contention that there is real difficulty in deterring you specifically owing to your mental health condition and your strong opposition to treatment.
83 There is nothing in the opinion of Dr Deacon which is in any way relied upon to enliven the fifth or the sixth limbs of Verdins and Mr Sala was explicit in not relying on either of those limbs.
COVID-19
84 I turn to the issue of COVID-19 and its impact upon you. I have no difficulty accepting that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners generally. Well, you have been in custody since February 2020, so that is throughout the pandemic. Prison has undoubtedly been a more stressful environment for you. No doubt there would have been some worries about catching the virus in such a setting. Unlike someone out in the community, there really is no level of autonomy exercised by a prisoner. No doubt you would have experienced the increased burden of quarantine or lockdown on occasions and as I say, you have been there throughout the pandemic. It is not a matter of me needing to look forward although I will do that as well.
85 It follows that, in your case, there would have been limitations to visiting and the full range of courses in much of the time that you have been held. There were blanket bans for much of that period in 2020 and last year and even earlier this year in terms of personal visits.
86 Things did open up to a degree since about March of this year. Visits have resumed from about then. I have been told you have been having visits though irregularly.
87 As to what lies ahead in the future though, that is impossible for me to determine. I cannot speculate about that. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence that I am about to impose. I cannot know if that will take place or not and I make it clear that I certainly do not proceed on the assumption that it will. To take it into account in that way would be to contemplate future executive action, which is prohibited to me.
88 It is my sense that the prisons have tended to lag a bit behind the community in terms of COVID restrictions being lifted. They also tend to bring them back in more rapidly which makes perfect sense. It really is not that unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming several months. There are still some lockdowns and the
day-to-day uncertainty that they cause as to how prisoners will fare will persist.
89 I take into account the increased burden imposed by the response to
COVID-19 in the manners that I have described.
General
90 I turn then now to make some general statements. I am required to take into account a large range of matters, including the maximum penalties and the nature and the gravity as well as the impact of any crimes committed by you.
91 I turn then to the seriousness of these offences.
92 Though you have some reduction in culpability arising from your mental illness, and I have spoken of that at length, you had engaged in some level of planning. You knew what you were doing was wrong. I have no doubt about that. You obtained accelerant. You attended at the house that you were no longer welcome at. You had a sense of grievance at being evicted and you were acting on that grievance. As to the arson with intent charge, it is not just the damage to the building, which of course was very sizeable. This was arson with intent to endanger life of the upstairs residents. It was your intent or purpose to endanger their lives. I have no doubt about that at all. I refer again to s197(5). That is inherently serious, before I even turn to consider the way you set out to do that. I note what the Court of Appeal said as to the strangeness of this provision and its maximum penalty when contrasted to arson causing death where there is no intent to endanger life at all but a much higher maximum penalty - see the case of Sokaluk[6], where the
[6] [2013] VSCA 48
Court of Appeal said at paragraphs [33] and [34] the following:
We note first that s197(2) of the Crimes Act 1958 (Vic) imposes a maximum penalty of 15 years' imprisonment on an arsonist who intentionally and without lawful excuse destroys or damages property, intending by that destruction or damage to endanger the life of another. By contrast, the maximum penalty imposed on a person who commits arson causing the death of another is
25 years' imprisonment, even though that death may not have been intended.
It is somewhat curious that the maximum sentence which can be imposed on an arsonist who intends to endanger the life of another is 15 years, whilst an arsonist who does not intend to cause death may be sentenced to a higher period of imprisonment if that death actually occurs. This may be because the higher maximum sentence which applies to the
s197A offence was intended to reflect the great value which the law places on the protection of human life
93 Well, I must examine how you went about committing this offence.
94 You knew there were residents asleep within the premises upstairs. You entered the house. You had obtained accelerant. You poured the accelerant in the area of the stairwell towards the top of the stairs and lit this fire and exited. The upstairs residents were trapped. It came perilously close to a tragic outcome. Your counsel did not want to enter into the discussion about where this example of the offence sat on the spectrum of offence seriousness. He said instead this was, 'terribly serious offending'. Well, he was right. It actually is a bit hard to imagine a much more serious example of this crime. Here we have multiple victims rolled up into a single charge, a fire being silently lit in a house known to be occupied by people who would be expected to be sound asleep upstairs in the very early hours of the morning with the fire being lit at the top of those stairs.
95 You also intended to injure and you succeeded in that respect. When one examines the mechanism, that is injury by fire, there is really something of a fiction here. How does one intend to bring about mere injury when the mechanism is setting a fire in a house with the requisite intent for the offence of arson with intent to endanger life. Fire is not something that one can control or train so precisely. Be that as it may, as luck would have it,
'serious injury', as that is now defined in the Crimes Act, was not occasioned here. That is the way the case has settled. 'Injury' under this provision - well, it could capture a setting where any medical treatment was even required.
Mr Nalawattha's injuries were no minor examples of 'injury' by any stretch of the imagination, requiring as they did hospitalisation and for a significant period and then a significant enough period by way of rehabilitation. These injuries are a very long way removed from the least significant examples of injury that could be captured by that provision. The impact has been very large. Mr Malwaththage's injuries of course were far less significant.
96 The mechanism in each case was serious.
Purposes
97 I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. They are not strong, I am afraid.
98 I am required to punish you for your crimes. I must do that justly and proportionately. Of course that is an important purpose.
99 I must also denounce your conduct and that is also an important purpose of sentencing.
100 I must pay appropriate weight to specific deterrence and by that I mean the need to deter or dissuade you from offending in the future. That is of significance here given the very serious nature of the offending and your past lack of response to court orders. You must be deterred. There is of course some moderation owing to my Verdins findings, but the purpose Is plainly not eliminated. It cannot be.
101 General deterrence is still an important purpose of sentencing in this case and that is despite the moderation arising by virtue of the third limb of Verdins. It is also far from eliminated here. This court must send a message to others in the community who might consider this serious style of offending.
102 The courts have a role in sending a message that will hopefully cause
like-minded potential offenders to re-think their involvement in this serious sort of crime.
103 I must pay regard to community protection. Mr Sala argued that there are real difficulties in deterring you owing to your mental illness and your attitude to treatment and medication. While I have moderated specific deterrence, community protection is a powerful factor in this case. You are a real danger. You have amply demonstrated that danger in this serious offending and despite committing these serious crimes, you have no intention of accepting treatment or anti-psychotic medication or desisting from illegal drug use. You pose a real and not illusory danger to completely innocent members of the public such as the victims in this case. I must protect the public from you. Community protection necessarily looms large in my sentencing task.
104 I must have regard to the maximum penalties and the impact of your crimes.
105 I also must pay regard to current sentencing practices. That is not a single controlling factor. It is just one of the matters that I have to take into account. There are very few examples of sentences imposed for arson with intent to endanger life. I have looked at the Sentencing Snapshot (No. 251 of 2021) and the more up to date statistics for arson; likewise, the case collection on the Judicial College of Victoria sentencing site but there are very big differences between arson and arson with intent even though the same maximum penalty applies. There are no online statistics for this offence. It is doubtful that either the formal snapshot for arson or the online statistics for arson incorporate this style of arson. I am just not sure one way or the other. I have looked at the relevant Sentencing Advisory Council online sentencing statistics for intentionally causing injury. I have also looked at overview of cases from the Judicial College of Victoria Sentencing Manual for that crime as well.
106 I have looked also at those cases to which I was referred.
107 I have done all these thing but I am sentencing you for your crimes and that is not some mathematical or statistical task. No amount of looking at other cases or statistics will provide the answer to my task here. Other cases are not precedents and they do not drive my task; nor for that matter is there such a thing as one correct sentence. None of the cases I have looked at, either those I have been referred to or others I have looked at, in relation to arson with intent to endanger life, is on all fours with your case.
108 Statistics have inherent limitations. I am not here to pass sentence based on what has been the most common sentence imposed in the past as a matter of statistics. As I have said, I am exercising a sentencing discretion in your case paying regard to the matters in aggravation and the matters in mitigation in this case.
Totality
109 I take into account the principle of totality of sentence. I have these
three offences. Charge 1 is the most serious of those by far. As I said, your counsel described it as ‘terribly serious’. It is. It is in my view a grave example of the crime of arson with intent to endanger life. It rolls up
three victims and your conduct was quite extreme. It falls towards the upper end in terms of the objective seriousness of the offence, before regard is then had to the matters personal to you. Then I have the two charges of intentionally causing injury. These three offences were all committed on the same night in the same episode. Of course they were. The fire was lit with the requisite intents - and I say intents, plural - being intent to damage property and intent to endanger life. Well, very significant damage was caused to the house with the impacts spoken of by the owner. The injuries were then caused in that fire, all of this arising from your grievance. However, I have multiple victims for Charge 1 and individual victims for each of
Charges 2 and 3 and those two victims are also victims of Charge 1 as well. Plainly, there must be a level of cumulation. There is the obvious overlap, and I must have regard to totality and also take care not to doubly punish you.
110 I have engaged in a last look at the effect of the sentences to satisfy myself that the overall effect is commensurate with your overall criminality. This was extremely serious offending.
111 Prison is always a disposition of last resort. There is simply no other option here obviously. Mr Sala sensibly conceded that prison with a non-parole priod was the only option. Plainly, that concession was correct. There can be no other response for offending as serious as yours. It must be met with a very substantial term of imprisonment.
Sentence
112 I am sorry to have taken so long to get to this point. Let me now pass sentence upon you. I would normally have you stand up but I will not because we are doing this by way of the Webex.
113 On Charge 1, which is the charge of arson with intent to endanger life, I convict and sentence you to eight years' imprisonment.
114 That is the base sentence.
115 On Charge 2, that is, the charge of intentionally causing injury to
Mr Nalawattha, I convict and sentence you to four years' imprisonment.
116 On Charge 3, intentionally causing injury to Mr Malwaththage, I convict and sentence you to 21 months' imprisonment. The base sentence, as I say, is the eight years imposed on Charge 1.
Cumulation
117 I direct that 12 months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 3 is to be served cumulatively, that is, on top of, the base sentence and each other.
TES
118 These orders result in a total effective sentence of nine and a half years' imprisonment.
NPP
119 Given
the dimensions of that head sentence, I am required by law to fix a
non‑parole period. I am not allowed to speculate as to whether or not you will be released on the parole. That matter will rest entirely in the hands of the Adult Parole Board. I have no role in that decision, but I must fix a non-parole period.
120 I fix a period of six and a half years during which you will not be eligible for release on parole.
Pre-Sentence Detention
121 You have served a total of 1,004 days by way of pre-sentence detention and that s18 declaration is entered into the records of the court.
6AAA
122 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for 11 and a half years. I would have fixed a non-parole period in that setting of eight and a half years and likewise that declaration, this time made pursuant to s6AAA of the Sentencing Act, is also to be entered into the records of the court.
123 Let me just see if there are any other matters. Any other matters from your perspective, Mr Raimondo?
124 MR RAIMONDO: No, Your Honour.
125 HIS HONOUR: Mr Sala.
126 MR SALA: No, thank you, Your Honour.
127 HIS HONOUR: So you will obviously have to - I do not think it is appropriate that we use the link here. You are here, I have got my staff here, you have got your client - - -
128 MR SALA: Your Honour, I have already - I do not mean to cut you off - I have already requested one.
129 HIS HONOUR: You will have a link and you will communicate and speak to
Mr Liddell about the sentence that has been imposed and his rights in relation to it. So he has heard me say that. So that then completes the matter. Are there any other matters then from either of you or not?
130 MR SALA: No, Your Honour.
131 MR RAIMONDO: No, sir.
132 HIS HONOUR: No. Well, thanks each of you for your assistance in this matter. Well, you heard me say then, Mr Liddell, Mr Sala will
be in contact with you to discuss your rights in relation to this sentence, all right.
133 OFFENDER: Yes, Your Honour.
134 HIS HONOUR: Well, look, I think that completes the matter then. So I will do is I will adjourn the court until 10 am tomorrow then, please. Thank you.
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