Director of Public Prosecutions v McAdams

[2021] VCC 1100

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY SITTING IN MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00664
Indictment No. L10008223

DIRECTOR OF PUBLIC PROSECUTIONS

v

MCADAMS, MICHAEL

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JUDGE:	HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2021
DATE OF SENTENCE:	9 August 2021
CASE MAY BE CITED AS:	DPP v McAdams
MEDIUM NEUTRAL CITATION:	[2021] VCC 1100

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Arson – serious example of the offence - very good prospects of rehabilitation – low moral culpability

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:R vVerdins & Ors (2007) 16 VR 240

Sentence:                  45 days imprisonment before commencing a Community Corrections Order for a period of two years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Caruso	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. Fitzgerald	Victorian Legal Aid

HIS HONOUR:

Introduction

1Michael McAdams, you have pleaded guilty to one charge of Arson contrary to sections 197(1) and 197(6) of the Crimes Act 1958. The maximum penalty for this offence is 15 years’ imprisonment.

Summary of Offending

2The circumstances of this offending were contained in the Summary of Prosecution Opening, Prosecution Exhibit 1.

3You were 29 years of age at the time of the offending and resided at 5 San Remo Crescent, Sunset Strip on Phillip Island (‘the premises’).

4The premises were a single storey, brick and timber property, consisting of three bedrooms and one bathroom.  The block is 649 square metres and is located on a residential street with neighbouring properties on either side and opposite.

5

You previously resided at this address with your mother until she passed away on 3 November 2019, approximately eight weeks prior to the offending.  Since

3 November 2019, you resided at this address alone.

6The property was rented by your mother from Steven Hill, through Judith Wright Real Estate.  Just prior to the offending, the rental agreement was to be transferred into your sister's name.

7On Tuesday 31 December 2019, you were at the premises alone.  At approximately 9.48 pm, Daniel Kelly (Kelly) walked past your address and heard you yell 'Fuck it.  I just want to be with the people I love tonight'.

8Between approximately 9.48 pm and 11.30 pm, you took various personal belongings from inside the property and piled them up in the front living room of the house.  You also removed gas cylinders from the house and left them along the side fence of the property.

9You moved couches and other items of furniture into the front living room, where you then poured methylated spirits onto the furniture, walls and photographs.

10You then ignited the methylated spirits, causing the house to quickly become fully engulfed with flames (Charge 1, Arson).

11You removed your pet ferret and other personal belongings from the house and placed them in your vehicle, before you shouted 'Fire' and drove away from the house.

12Neighbours were alerted to the fire and began using hoses in an attempt to extinguish the fire and protect neighbouring properties whilst waiting for emergency services to arrive.

13Members from the Country Fire Authority attended the premises shortly after 11.30 pm and later extinguished the fire.

14An associate of yours, Kim Bardwell (Bardwell), learnt that your house was on fire after seeing a Snapchat video from your neighbour.  At approximately 11.48 pm, Bardwell made a telephone call to you, where you admitted to having just, 'Burnt my fucking house down'.

15You drove from Phillip Island to Inverleigh, approximately a three hour drive, where you were observed by Sergeant Grant, and shortly after 12.00 pm on 1 January 2020 you were arrested.

16You were transported to the Geelong Police Station, where you participated in a record of interview and stated the following:

(a)   That you resided at 5 San Remo Crescent, Sunset Strip;

(b)   That you had resided at that address for at least the previous three years;

(c)   That you had resided at the address with your mother, who had passed away on 3 November 2019;

(d)   That you were at the address on 31 December 2019 at night;

(e)   That you had not taken your medication for ADHD;

(f)    That you suffered from a variety of mental illnesses, including chronic depression, social anxiety disorder and ADHD;

(g)   That you lit the house on fire using methylated spirits;

(h)   That you started the fire in the main living room by piling up couches; and

(i)    That you shouted 'fire' before leaving the address.

17Rachel Noble (Noble), a scientist from the Victoria Police Forensic Services Centre, attended at 5 San Remo Crescent, Sunset Strip, on 1 January 2020 where she conducted an examination of the scene.  Noble opined that the fire started in the living room by the ignition of available materials, due to the heavy charring of furnishings in that room.

18Noble opined that, due to the severity of the fire, it was probable that flammable liquid was used to initiate the fire, however, no samples were available for collection and testing.

19The fire completely destroyed the house at the premises.  Based on the most recent Rates Notice provided by the Bass Coast Council, the value of the house was approximately $169,000.  The cost payable under the insurance policy to rebuild the house was $310,000.

Effect on the Victim

20Prosecution Exhibit 2 was the Victim Impact Statement of Steve Hill dated 7 June 2021.  In that statement Mr Hill expresses how your actions in burning down the house that he had owned for 30 years have cost him financially.  He also expresses anger that you did this even after Mr Hill says he had assisted your mother, his long-term tenant, significantly in her later years.

21I take these matters into account pursuant to s5 of the Sentencing Act 1991.

Nature and Gravity of Offending

22Your offending involved the wanton and completely unnecessary destruction of a property of very significant value belonging to another.  The nature of this offence of arson also created a very real risk that the fire could have spread beyond the property and perhaps endanger life.  The arson caused substantial financial loss, to be borne either by the owner or his insurer.

23By any measure this is a serious example of the offence.

24There are, however, an absence of several commonly seen aggravating features. It could not be said, for example, that your actions were motivated by any kind of financial gain from insurance.  Nor can it be said that your actions were done with malice intent toward the owner of the property.  You had no intention to harm other people by your actions.

25Indeed, it could not even be said, that this act of senseless arson was motivated by any thrill you were seeking by engaging in the action itself.

26As I will go on to explore further, the root cause of these otherwise inexplicable actions can only be from the mental health episode you were enduring at the time.

27Despite the magnitude of the damage caused, the absence of these aggravating factors means that this offending is a serious but not higher end example of the offence of arson.

Personal Circumstances

28You are now 29 years old.  You were 28 years old at the time of the offending.

29You were born in London.  Your father worked as a bus driver and the family lived in modest premises in London.  You have one younger sister who lives in Australia with whom you currently have no ongoing relationship.

30Your family moved from London when you were 2 years old to the town of Tintwistle where your father worked as a factory manager, before moving again to the northern English town of Hadfield when you were 5 years old.

31Your parents separated when you are 8 years old.  For a period, you and your sister resided with your father before moving in with your mother in the town of Runcorn, also in the north of England.

32Your parents divorced when you were 10 years old.  Your mother re-partnered, and I am instructed that you have a somewhat distant relationship with your stepfather.

33By way of education, you had a somewhat disrupted time during your primary school years, however, despite this and further difficulties, as a result of what you now conclude to be Attention Deficit Disorder, you successfully completed your 'A-levels'.

34You were accepted into a biology course at Manchester Metropolitan University.  You did not complete this course and returned to live with your mother.  She moved to Australia in 2014, and you went to reside with your father who by then lived in Wales.

35You formed a relationship in Wales with a woman who had Australian citizenship rights and you and your partner came to live in Australia in 2015.  The two of you resided with your mother in the house the subject of these charges in Phillip Island.  You obtained work locally in a sushi restaurant.  The relationship, however, ended and your partner moved out of the property.

36In 2016 you were involved in a car accident that I am instructed resulted in no physical injuries but had a significant emotional impact on you.  You recommenced living with your mother.

37In 2016 your mother suffered a heart attack, ultimately requiring a wheelchair.  She pursued her rehabilitation in Melbourne, and you continue to reside in the house in Phillip Island.

38Your mother returned to the house in 2017 and from that time until her passing you were effectively her carer.

39

In 2019 you suffered the dual tragedies of a close friend's passing and then on

4 November 2019, your mother's passing.

40You report that after your mother's passing, you commenced to have auditory hallucinations and 'strange beliefs'.  You also instruct that your cannabis use, which had been an ongoing and at times substantial habit throughout your life in Australia, escalated considerably.

41You currently reside in shared accommodation in Morwell.  You are single and currently unemployed.  You have been supported since the offending by your father.  Your father came to Australia in March 2020 for one month, but unfortunately pandemic restrictions have prevented him attending any court proceedings in person.  However, he was present via video link for the plea hearing.

42You have no prior convictions nor anything subsequent.  From these things alone I can conclude that you are a person of previous good character.  I have also had the benefit of reading your father's very comprehensive reference.[1]  In that letter written on your behalf, your father provides great context for the offending.  In particular, I have taken into account his insight into the period from your move to Australia to the commission of this offending.  It is evident that your father cares very deeply for your welfare and that going forward you can count on his strong support.

[1]Defence Exhibit 5.

Mental Health

43

In the course of your plea your counsel tended Report of forensic psychologist

Dr Nina Zimmerman dated 5 May 2020.[2]  The conclusions in that report were based upon her direct consultations with you and upon her consideration of other materials available to her, including records with your previous consultation with psychiatrist Dr Al Wahab in 2017.

[2]Defence Exhibit 2.

44She notes that you have been diagnosed with adult-onset Attention Deficit Disorder (ADD), for which you have been prescribed medication.  You have also been prescribed antidepressant medication by a GP.  Dr Zimmerman notes this previous diagnosis of ADD, with a comorbid diagnosis of depression and anxiety.  It is significant that the psychiatrist noted an apparent suicide attempt in 2017.

45You have also more recently been diagnosed with Marfan's syndrome.

46Dr Zimmerman notes that you are a young man with a history of depression and anxiety alongside regular cannabis use.  In relation to your mental state at the time of the offending, Dr Zimmerman says as follows;

“In light of this information, I believe that Mr McAdams experienced a rapid onset and short-lived psychotic episode characterised by bizarre and paranoid delusions, hallucinations, thought disorder and delusions of misidentification.  I believe the death of his mother and subsequent rejection by Ashley are likely contributors to his deteriorated mental state.”[3]

[3]Defence Exhibit 2 at [79].

47

Dr Zimmerman suggests that the circumstances permit two possible conclusions;  Either your offending was caused by a brief reactive psychosis or by a

drug-induced psychosis.  She considers that there is a significant chance that your diagnosis was related to a cannabis induced psychosis, and that stimulus abuse may also have played a part.

48She believes that you experienced a psychotic episode at the time of the offending and that it is in full remission on low-dose antipsychotic medication.  She says that had you not been psychotic, the offending 'is most unlikely to have occurred'.  You reported to her that you were both, 'bewildered and remorseful' regarding your actions.

49Dr Zimmerman did not consider that a mental impairment defence was available to you in this case.  She did, however, consider that imprisonment would be more burdensome for you because of your history of depression.

50

By way of treatment, Dr Zimmerman suggests you can be trialled off antipsychotic medication after approximately six months, provided that you can remain abstinent of illicit drugs.  She further considers that your compliance with CISP bail obligations suggests you have the capacity to continue to engage with appropriate services to reduce the prospects of another episode in the future.  She says,

'the most crucial intervention will be with a drug and alcohol service to assist

Mr McAdams to develop skills for remaining off cannabis'.

51I also accept that by reason of your psychiatric diagnoses, in combination with the apparent absence of any rational motivation for your actions, your moral culpability for this offending ought to be regarded as low.

52I consider these matters are also relevant in determining that little weight should be placed on the need for specific deterrence in this case.

Plea of Guilty and Remorse

53You indicated an intention to plead guilty the day before the committal hearing, and formally entered that plea on the day of the committal.  The Crown accept that you pleaded guilty at an early opportunity.

54Your plea of guilty has significant utilitarian benefit.  You have spared the time and resources that would otherwise have been expended upon contested proceedings.  The worth of your plea is especially significant in circumstances where court lists have been placed under extreme pressure as a result of pandemic restrictions.

55I also regard your plea of guilty to be indicative of you having genuine remorse for your actions.  This conclusion is also consistent with your direct statements to this effect to Dr Zimmerman.

Rehabilitation

56Since being released on bail I am instructed that you have complied with all the conditions imposed by CISP.[4]  Significantly, these have involved your participation in appropriate counselling.  I am instructed that you have desisted from using cannabis.  You have expressed a desire to commence tertiary education in Australia.

[4]Defence Exhibit 6.

57I also note that, for reasons directly related to the pandemic, there has been some delay in finalising these matters despite their early resolution.  I take into account, substantially in your favour, that you have not re-offended during that time and have participated in positive actions aimed at your rehabilitation as described above.

58This offending is both bizarre in its nature and an aberration in a life that has otherwise not brought you before the criminal justice system.

59I consider that your prospects of rehabilitation are very good, and your further participation in appropriate counselling and treatment may improve those prospects even further.

Submissions on Sentence

60Ms Caruso on behalf of the Director submitted that to adequately reflect the gravity of the offending a term of imprisonment must be imposed but the length of that term is a matter for the court.  It was noted that the offender has 45 days available to him as pre-sentence detention.  The prosecution agreed that, on balance, a sentence that does not require an additional custodial portion would be open to the court.[5]  The prosecution conceded that on the available material, limbs five and six of Verdins[6] would be enlivened and I agree with this conclusion.

[5]Prosecution Exhibit 3.

[6]        R vVerdins & Ors (2007) 16 VR 240 (‘Verdins’).

61Mr FitzGerald, on your behalf, conceded the serious nature of your offending, however, submitted that the offending was committed while you were suffering a psychosis that appears to have arisen in the wake of a chain of distressing events in your life.  Mr FitzGerald contended that you have no history of prior offending, successful engagement with treatment, and have desisted in the use of cannabis.  As such, Mr FitzGerald's ultimate submission was that a Community Corrections Order would be an apt sentence.[7]

[7]Defence Exhibit 1.

62You were assessed as to your suitability for a Community Corrections Order and were found suitable.

63The nature of the offending means that general deterrence, protection of the community, and just punishment retain some significance as sentencing considerations.  However, in the circumstances of this case, in particular the lack of prior or subsequent matters, the low moral culpability attaching to the offence, and what I find to be optimistic prospects for your rehabilitation, means that the sentencing considerations can be appropriately expressed through a combination sentence which involves no further imprisonment beyond that which you have already served on remand before commencing a Community Corrections Order.

Sentence

64What I am proposing to do at this stage, on Charge 1, Arson, is record a conviction and sentence you to 45 days' imprisonment before commencing a Community Corrections Order for a period of two years from today's date.

65I declare 45 days of pre-sentence detention already served.

66Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means.

67The following core conditions apply to all Community Correction Orders:

(a)   You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(b)   You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.

(c)   You must report to the Community Correction Centre at Morwell within two clear days from today, and you may report remotely via telephone.

(d)   You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.

(e)   You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

(f)    You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.

68There are a number of other conditions attached to this Order, and they apply to you:

(a)   You have to perform 150 hours of unpaid community work over a period of 12 months as directed by the Regional Manager (s48C).  50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s48CA).

(b)   You must be under the supervision of a Community Corrections Officer for a period of two years.

(c)   You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s48E).

(d)   You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).

(e)   

You must undergo mental health assessment and treatment including

(but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).

(f)    You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager(s48D(3)(f)).

69I can only impose a Community Correction Order if you agree to such an Order being imposed. 

70I advise you that if you contravene or breach that order by committing further offences you can be charged, and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)). 

71You can also be re-sentenced for the offences that are before me.  One of the options available includes a term of imprisonment (s83A(s)).

72

If over the next two years you commit any further offences that might incur a term of imprisonment, you would be back before the Court and you could be

re-sentenced on the charge that is before me.

73I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections Officer or a worker as part of this order, a substantial fine can be imposed (s83A(e) and A(f)). 

74Now Mr McAdams, you are aware of all of that? 

75OFFENDER:  Yes.

76HIS HONOUR:  Do you consent to a Community Corrections Order on the conditions I have just outlined?

77OFFENDER:  Yes.

78HIS HONOUR: I declare pursuant to s18(4) Sentencing Act 1991 that you have spent 45 days in custody by way of pre-sentence detention and that this be entered into the records of the court.

79Pursuant to s6AAA of the Sentencing Act 1991 but for your plea of guilty I would have sentenced you to a term of imprisonment of 18 months with a non-parole period of 12 months.

80All right.  Are there any further orders?

81MS CARUSO:  No, Your Honour.

82MR FITZGERALD:  No.

83HIS HONOUR:  No, all right.  Thank you both very much for your assistance.  I will adjourn the court now.

84MR FITZGERALD:  If Your Honour pleases.

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