Director of Public Prosecutions v Lindus

[2016] VCC 526

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01485

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUSAN LINDUS

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 May 2016
CASE MAY BE CITED AS:	DPP v Lindus
MEDIUM NEUTRAL CITATION:	[2016] VCC 526

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Stevenson
For the Accused	Mr A. Halphen

HER HONOUR:

1Susan Lindus, you have pleaded guilty to one count of arson.  The maximum penalty for this offence is 15 years.  The circumstances of this offence is set out in the prosecution summary on plea hearing dated 28 November 2015, Exhibit A.

2On Sunday 31 May 2015, you commenced drinking wine whilst preparing a meal for your extended family, which included your daughter Tanya, her husband, and your grandchildren.  Your husband, Peter Lindus, was also home.  Your marriage to him had broken down, though you were living separately together under the same roof.  The house was owned by both of you, though subject to a mortgage, situated at 31 Rockbank Road, Ardeer. 

3At around 1.45 pm the extended family arrived at your home.  You appeared to your daughter to be drunk.  She became angry, as she did not like her children seeing you that way, and she told you they were leaving. 
Peter Lindus also argued with you about your drinking and left the house, following Tanya and her family to their house. 

4At around 2.30 pm, your parents arrived at your home and observed you to be angry about the fight that you had with the others.  You told your mother you "were sick of them all", and they soon left themselves.  An hour later, at about 3.30 pm, still angry, you started pushing furniture over, and throwing and breaking things around the house.  You then placed clothes on the floor in the master bedroom and set them on fire with a lighter.  You made sure the clothes caught alight, and then left the house, going to a motel, where you continued to drink alcohol. 

5Emergency services were notified of the fire at 3.40 pm and attended the house shortly thereafter.  At 6.49 pm, you sent a text to Peter Lindus stating "Hope you're happy now".  At 7.15 pm, the police attended at the motel and you were arrested.  You immediately told police "I trashed the house, I burnt it, I did it because of my ex-husband, no one was in the house". 

6You were taken to the station and given the opportunity to sober up before a formal interview was conducted.  When interviewed, you said "Whatever was done to the house, you were guilty".  You told police about your drinking and what had happened earlier in the day with your daughter.  You said you "wished you were dead" and said you "were raving mad" and that "I'm pissed off with it all, with my life.  I'm sick of this house, I don't want to be here, I'm sick of the situation I'm in with him, and I wanted out".  You told police of the situation at home, the stress of your living arrangements, the financial strain you felt, and the frustration you felt at Peter Lindus refusing to sell the property.  You also admitted significant alcohol consumption, and that you had not been taking you antidepressant medication for two days.

7The chemist who examined the house found that the fire was started in the master bedroom by the deliberate ignition of combustible material beside the bed.  The house was severely damaged as a result of the fire.  Photos were provided to me, illustrating the extent of the damage to the house.  Three quotes were obtained regarding the costs of either repairing or replacing the house.  As to repair, between $181,000 and $200,000, and as to replacement, $375,345.  No victim impact statement was provided to the court, however, it is obvious your actions have caused distress, particularly to Peter Lindus, and the loss of personal items, which are difficult to value.

8You are currently aged 52.  At the time of the offending, you had been married to Peter Lindus for over 30 years.  As noted above, you lived with him at
31 Rockbank Road, Ardeer, but resided in different rooms of the house, or were living separately under the same roof.  This arrangement commenced in 2010.  Together you have had a son, aged 29, and a daughter, aged 25.  Additionally, you have cared for two children of a close friend who passed away from about 2003, one of whom, Timothy, now aged 22, remains part of your family.

9You are one of two children who grew up in a household which was defined by frequent moves, your father's heavy drinking and violence towards your mother.  Your parents separated when you were aged ten.  You ceased contact with your father soon thereafter.  However, you experienced poor self-esteem as a child due to early exposure to domestic violence.  Your mother re-partnered and remains married to your stepfather, a move that brought some stability into your younger life. 

10After you left school, you completed a secretarial course and were employed as a data entry operator for about six years.  You married Peter Lindus when you were 21.  You ceased full employment when you had children, though you were engaged in some part-time work.  In respect of the births of both children, you suffered post-natal depression, but were able to successfully treat it on each occasion.

11In 1995, you and Peter Lindus lost what was then the family home and was declared bankrupt.  Following this event, your circumstances became such that you were admitted as an involuntary patient to Footscray Psychiatric Unit for a period of almost three months.  You were medicated upon discharge, though not always compliant.  You have continued to experience episodes of mood disturbance since this time, and have been diagnosed as suffering from bipolar effective disorder.

12After being discharged, you re-entered the workforce, and you have been gainfully employed most of your life with different jobs undertaken by you over the years.  I note that since September 2015 for reasons I will refer to later you have not been able to work and have received the Newstart Allowance. 

13You have a significant medical and psychiatric history.  The following was tendered on your behalf regarding these matters:  psychological report from Patrick Newton dated 23 April 2016, psychiatric report from
Associate Professor Andrew Carroll dated 16 April 2016, medical report and attachments dated 30 March 2016 by Dr Vu Dang, bundle of medical certificates, medical report dated 8 December 2015 by Dr Ennis Armarnius.  I have considered this material and take it into account.  It is clear that you have significant health issues, particularly regarding alcohol abuse, and that you have issues regarding your mental health.

14As to your situation at the time of this offence, though not clinically depressed, you had experienced a deterioration of mood, an ongoing sense of powerlessness at your situation, and frustration at your inability to extricate yourself from it.  You became to rely more and more on alcohol consumption to alleviate the psychological distress, which led to further conflict in the family, again leading to greater alcohol consumption.  There was no material to suggest that the incident was as a result of a relapse of your psychiatric or bipolar condition, rather the most significant factor affecting your mental state at the time was severe alcohol abuse.  (See Newton at p.38, and Carroll at pp.119 and 120.)

15It is notable that after this offence, you experienced homelessness, further breakdown of familial relationships, and continued alcohol abuse.  It was in this context in September 2015 that you were involved in a car accident in the midst of a manic episode.  You were, as a result, hospitalised at Sunshine Acute Adult Psychiatric Unit.  You relapsed in November 2015, and again hospitalised at the same unit in Sunshine.

16Having been involved in an incident with another patient at this time you left the unit, though you remain in the care of your general practitioner. 

17It was not disputed by the prosecution, and was in accordance with the evidence before me, that you would be highly likely to experience hardship in prison, such that the fifth and sixth principles in Verdins apply in sentencing you.  That is, because of your current state or condition, you would find prison more burdensome, and also as expressed in the opinion of Carroll, there are very serious concerns that the severe level of stress inherent in being a first-time prisoner in your 50s would place you at a very high risk of a relapse in terms of your bipolar effective disorder.  This could take the form of either a major depressive episode, a mixed effective episode, or a manic episode (See paragraph 136, Carroll.)

18You pleaded guilty to this offence at the first opportunity, and you will receive the full benefit of doing so.  You have saved the community the time and expense of a trial, and have also avoided the need for any witnesses to give evidence.  I accept your plea is indicative of remorse.  This is particularly so in your case given your full and frank admissions the first time police spoke to you, and in your record of interview. 

19You have continually expressed your remorse for this offence to police and to other professionals.  You said to Newton "I'm sorry for what I did to the family home and all their memories of our love together.  I'm sorry I didn't go and get help for my drinking problems, and that I let myself get so out of hand.  I never meant to hurt anyone, but I ruined our relationship, and so for this I am sorry".

20You have no prior convictions and as previously outlined, have been gainfully employed most of your life.  You have long-standing alcohol and mental health issues.  Clearly it is necessary for you to address both of these so as to avoid the situation that you found yourself in May last year reoccurring.  It is somewhat troubling that you did not, immediately after this incident, commit to abstaining from the use of alcohol, given the consequences of your actions, particularly regarding the destruction of your relationships with family members.  I was informed that you have the support of your mother and your new partner, but that your daughter and Mr Lindus want to see a commitment by you to addressing your alcohol problems before they are willing to support you.

21It was a promising sign that each of these individuals were in court.  I was informed that you have not had alcohol since the beginning of this year.  Additionally, I was informed you were compliant with your medication and are under the care of your GP. 

22Your counsel submitted that your prospects for rehabilitation would be bolstered by intervention, that you need effective treatment for your bipolar effective disorder with consistent psychiatric intervention and monitoring, assistance to deal with psychological issues and to enhance your coping and living skills.  In addition, you need structured alcohol-related education and counselling with a focus on relapse prevention.  As Newton notes "The chronic nature of your problems and their intensity militate against great optimism in your case.

23In those circumstances, your rehabilitation prospects are guarded. Neither party suggested otherwise, though arguably, the prosecution was less optimistic given your inability to address these issues thus far, or to fully understand the significance immediately after the commission of the offence. 

24The offence of arson is a very serious office with a maximum penalty of 15 years.  The damage to the property and value in monetary terms was a substantial amount.  The personal loss to individuals was significant and difficult to quantify.  You had the foresight to attempt to burn the whole place.  The level of risk was high that the whole house would be destroyed, given you left it unattended.  Your moral culpability for this conduct was high.  The fact of intoxication explained your conduct, but cannot be called in aid to mitigate it.  The conduct, it was argued, was motivated to hurt Mr Lindus given your dissatisfaction with the situation you were in. However, given you were a part owner of the house, your actions also damaged your own financial interest.  General deterrence and just punishment are important sentencing considerations in offending of this type.

25It could however, not be said the offence was planning or sophisticated with the use of accelerants, rather it was spontaneous.  The prosecution submitted you should be required to serve an immediate term of imprisonment.  Reliance was placed on DPP v Darby [2007] VSCA 92, and the authorities referred to therein, particularly the remarks regarding the seriousness of the offence at 21. There are some distinguishing features in the circumstances of this case, including the nature of the relationship between you and Mr Lindus as compared to that which is listed in Darby.  It is, however, authoritatively established, that this is a very serious offence which warrants substantial punishment, usually in the form of an actual term of imprisonment.

26Your counsel, relying on the principles involved, submitted that all sentencing principles could be adequately met by the imposition of a community correction order, which could incorporate unpaid work, and importantly, structured treatment and rehabilitation programs to address both your alcohol and mental health issues.  I had you assessed by Corrections to determine your suitability for such an order. 

27I have found this a difficult sentencing exercise.  Your circumstances were such that you were in an unhappy and unfortunate predicament that you perceived incapable of resolving.  You resorted to alcohol in dealing with the situation, acting in a most dangerous way, and causing significant damage to your home and family.  You have underlying mental issues, though these did not contribute to your actions so as to reduce your moral culpability for your offending.  You have limited capacity to address both your alcohol consumption and mental health issues without intervention.  I must take into account the gravity and seriousness of this offence, general deterrence and just punishment, balanced with matters in your favour including your plea, remorse, and the interest of the community in your addressing your alcohol and mental health issues, and being rehabilitated back into the community.  Could you please stand?

28Ms Lindus, what I propose to do is place you on a community correction order for a period of four years.  You will be required to undergo the various conditions that are included in the report, that includes conditions regarding treatment and rehabilitation for your alcohol consumption, treatment and rehabilitation in respect of your mental health issues.  You will also be required to complete 100 hours community work.  I am also including a condition regarding judicial monitoring, which means that you will come back before me on 2 August, where I will receive, effectively, material hopefully indicating to me that you have remained alcohol free and that you are progressing with your rehabilitation in respect of that.  That appears to me to be your biggest issue, and it is important that you continue to address that issue, otherwise you may find yourself coming back before me, and I will have no hesitation in imposing a term of imprisonment in respect of any breach in relation to the conditions.

29You must understand that I am giving you the opportunity to address your issues in the community, and it will be necessary for you to undergo various treatments and rehabilitation as recommended by the office of Corrections.  It is in the interest of the community for you to be rehabilitated within in the community.

30Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this offence, I would have imposed a term of imprisonment of four years with a non-parole period of two and half years.  Are there any other matters?

31MS STEVENSON:  The s.464, Your Honour.

32HER HONOUR:  Did I not do that?  That is right, I kept the s.464s because I was not certain as to what disposition I was going to impose, but do you have there a non-custodial s.464?

33MS STEVENSON:  I do, Your Honour, and they are updated with today's date.

34HER HONOUR:  Great, thank you, I will sign those now.  My associate will print out the order, if you want to go,
Mr Halphen, with your ‑ ‑ ‑

35MR HALPHEN:  Gratefully, Your Honour.

36HIS HONOUR:  Thank you.

37MR HALPHEN:  Thanks, Your Honour.

38HIS HONOUR:  I will just stand down, thank you.

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