Director of Public Prosecutions v McLean

[2016] VCC 570

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00076

DIRECTOR OF PUBLIC PROSECUTIONS

v

RENE BIANCA MCLEAN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 April 2016
CASE MAY BE CITED AS:	DPP v McLean
MEDIUM NEUTRAL CITATION:	[2016] VCC 570

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai	Office of Public Prosecutions
For the Accused	Ms A. Burt

HIS HONOUR: 

1Rene Bianca McLean you have pleaded guilty to one charge of arson and the summary offences of possession of a controlled weapon without lawful excuse and the commission of an indictable offence, arson, whilst on bail.  These offences carry the following maximum penalties:  Arson 15 years' imprisonment.  Possession of a controlled weapon without lawful excuse one years' imprisonment.  Committing an indictable offence whilst on bail three months' imprisonment. 

2It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1 Summary of Prosecution Opening Upon Plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

3Your ex-partner Robert O'Sullivan and your two daughters of that relationship with him aged four and two years lived at 9 Keating Crescent, Dandenong, a property owned by the Department of Health and Human Services.  You attended at that property at about 10 am on 10 August 2015.  O'Sullivan had taken the children to day care.  When he returned home he found you at the house.  You were wearing a pink wig and you had a brick taped to your hand.  You were drinking from a bottle of milk and Vodka.  O'Sullivan thought you were drunk and you appeared to be drug affected.  You were ranting saying:

"O'Sullivan had sold you bad drugs.  O'Sullivan had failed to kill you.  O'Sullivan had sex with the girl across the road and O'Sullivan was a paedophile."

4You were outside the house yelling and swearing.  You remained outside the house and you walked up and down the street pretending to throw the brick at the car.  You called out:

"I'm going to burn your fucking house down."  You set fire to the house.  You were heard yelling, "It's my fucking house and I can burn it down if
I want to." 

5You were later found by O'Sullivan under a blanket lying on a footpath in Dandenong.  At 12.45 pm that afternoon police observed you at the Dandenong train station.  You were sitting on the ground rocking back and forth and talking to yourself.  You were pulling chunks of hair from your head.  You smelt of smoke. 

6You told the police:

"O'Sullivan is a paedophile and deserved what he got.  The crocodiles are coming and they're going to get us all.  You don't take drugs you just had two glasses of wine." 

7You had a handbag next to you and a large silver machete was in your handbag.  You were arrested and taken to the Dandenong Police Station.  Whilst at the police station police thought that your mental health was deteriorating.  You were taken to the Dandenong Hospital where you were assessed but not admitted.  You were then taken back to the police station.  You were assessed by a forensic medical officer and deemed unfit to be interviewed. 

8As a result of the fire the property was extensively damaged.  There was damage to at least 90 per cent of the dwelling.  Most of the internal walls were destroyed.  About 90 per cent of the timber roof structure was badly damaged.  Because of the extent of damage it was determined the property needed to be demolished and rebuilt.  The anticipated total cost of replacement will be $210,455.81. 

·    I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account   in your favour and I do so.  The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  I accept that you are genuinely remorseful. 

9I have been told something of your personal circumstances and these matters are set out in the report of Dr Leon Turnbull consultant psychiatrist tendered on your behalf.  You are 39 years of age having been born on 6 May 1976.  You are separated from you ex-partner.  You have two adult children aged 22 and 18 years from a previous relationship.  They were taken into care by the Department of Human Services at an early age and raised by your sister.  You have two young children from the relationship with O'Sullivan. 

10You had a dysfunctional childhood.  Your parents separated when you were two years of age.  You were raised by your mother but she had substance abuse issues.  You started consuming alcohol when only ten or 11 years of age and also started using cannabis at a very young age.  Over time you graduated to using amphetamines, heroine and ice.  In the period of about 12 months prior to this offending you were using ice on a daily basis. 

11You have a long and complicated history of mental illness.  This is summarised by Dr Turnbull in these terms:

"Her first contact with psychiatrist services was around age 27.  She was not sure of how many hospitalisations she had received.  She had previously been treated with injectable anti-psychotic medication but could not remember when.  Other than hospitalisation in an emergency department attendance she had not seen psychiatric services in the community for at least the past 12 months."

12Dr Turnbull noted that the mental health records of Monash Health and Peninsula Health provided a range of diagnoses of your mental illness.  These included drug-induced psychosis, schizophrenia, non-organic psychosis, mental and behavioural disturbance due to psychoactive substances, BPAD and underlying psychotic disorder.

13According to Peninsula Health the final discharge diagnosis made in May 2015 was drug induced psychosis.  The Peninsula Health records noted:

"Rene's engagement with services has been complicated by long-standing and ongoing substance use.  A review of her presentations identifies brief episodes of care suggestive of substance use issues rather than a major psychiatric illness.  However longitudinal engagement with a period free from substances is required for an equivocal(sic) diagnosis."

14Dr Turnbull has assumed that the Peninsula Health record of "equivocal" should read "unequivocal". 

15The history of your mental illness in more recent times included psychiatric hospitalisation in May 2015 at which time you thought everyone was trying to kill you.  You were becoming psychotic and you felt people were trying to kill your family.  At that time you had not been taking anti-psychotic medication rather you had been injecting ice daily.  When hospitalised you were treated with oral anti-psychotic medication.  You were not followed up by mental health services following your discharge and you quickly ceased medication and did not have ongoing psychiatric consultations.

16Dr Turnbull examined you on 13 April 2016.  His opinion was:

"Ms McLean's diagnosis remains equivocal.  It is that of drug-induced psychosis with a possibility of schizophrenia.  Without several months of abstinence from illicit substances it remains a pragmatic diagnosis."

17Dr Turnbull also expressed the following opinions:

"When abstinent from illicit drugs and taking anti-psychotic medications such as the day of my assessment she does not hold those beliefs and appears to be very fond of Mr O'Sullivan and holds largely appropriate concern for her children."

18Dr Turnbull noted that you appeared to relapse into frank psychosis when using ice.  When psychotic you developed beliefs of being persecuted by
Mr O'Sullivan and people in the community. 

19In respect of this offending, it was Dr Turnbull's opinion that your offending was motivated by your psychotic beliefs that your own house had been emolliated and Mr O'Sullivan was responsible.  Dr Turnbull stated that had you not been psychotic the offending more likely than not would not have occurred. 

20It was his opinion that outside of the illicit drug use with subsequent psychosis there does not appear to be a motivation toward arson.  However should you use ice again then your risks are unpredictable as you quickly become psychotic and your behaviour flows from that psychotic illness. 

21Dr Turnbull stated:

"Having a major mental illness requiring psychiatric hospitalisation within prison and receiving anti-psychotic medication does make incarceration more burdensome due to the pressures of being in a volatile environment.  On the other hand it has afforded her opportunity to achieve early stages of illicit drug abstinence.  Should she remain incarcerated there will be little in the way of psychiatric rehabilitation."

22I accept Dr Turnbull's opinions.  Although the diagnosis is of a drug-induced psychosis with a possibility of schizophrenia having regard to the facts that the diagnosis remains equivocal, you have a major mental illness, your drug use commenced at such a very young age, your drug use and subsequent addiction could not be said to be the result of a free rational decision, the circumstances of your addiction are use from a very young age and for many years, your addiction resulted in psychosis and there is a clear connection between this mental illness and your offending.  I have determined that this mental illness does reduce your moral culpability and I have therefore sensibly moderated the weight to be attached to both general and specific deterrence.  I also accept that imprisonment will weigh more heavily on you than on a person in normal health.  Although as Dr Turnbull noted it does provide you with an opportunity to abstain from drugs.  I assess your prospects of rehabilitation as being cloudy. 

23Against these matters in mitigation however your actions were very serious indeed.  This was a serious example of the offence of arson.  The family home was destroyed.  Not only was the property destroyed this type of fire causes grave risks for others including neighbours and fire fighters.  An aggravating factor was that the offending occurred whilst you were on bail.  There is no victim impact statement.  Your ex-partner has forgiven you.  I place little weight on this although it does indicate you may receive some support from him upon your eventual release from custody. 

24You have admitted before me numerous prior convictions.  There are approximately 28 court appearance between 23 June 1995 and 12 March 2013 involving convictions for a vast array of offences.  The nature of some of these prior convictions particularly for arson, weapons offences and breaches of court orders is highly relevant to my task of sentencing you today. 

25I have had regard to the principle of totality. 

26There are 261 days of pre-sentence detention. 

27As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.  I have, as stated, sensibly moderated the weight to be attached to both general and specific deterrence.  Specific deterrence remains relevant in view of your extensive criminal history.  General deterrence is of considerable importance in a case such as this.  This type of offending must be discouraged.

28I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. 

29Your counsel submitted that I ought impose an immediately custodial sentence in combination with a community corrections order.  As I was considering this disposition I ordered a pre-sentence report.  You were assessed as suitable for a community corrections order and the following conditions were recommended: 

·Treatment and rehabilitation drug; 

·Treatment and rehabilitation alcohol; 

·Treatment and rehabilitation mental health; 

·Treatment and rehabilitation programs to reduce re-offending; 

·Supervision; and 

·Judicial monitoring.

30Your previous involvement with Community Corrections Services was described in these terms:

"Ms McLean has a previous involvement with Community Correctional Services having been subject to a total of four orders.  This commenced with a community based fine default order in 1999 which was cancelled.  Ms McLean was subject to a community based order ? community work in 2002 which was also cancelled and had a community based order in 2011 which was confirmed.  Most recently Ms McLean was subject to a drug treatment order imposed in 2012.  This order was also cancelled through an application to the court.  CCS records indicate that the basis of this application was that Ms McLean was struggling with the requirements of the order and had absconded on two occasions."

31You have therefore breached numerous orders in the past.  Further there was an understandable concern by the assessing Community Corrections officer that you may not comply with any order.  She stated:

"Given Ms McLean's history of non-compliance with community based dispositions her judicial monitoring condition is recommended for the court's consideration.  This condition is recommended to provide an extra level of motivation and accountability for Ms McLean to successfully complete this community corrections order  in addition to her self-reported motivation to do so."

32In all the circumstances particularly having regard to the serious nature of this offence of arson, your poor record in complying with court orders, your age and cloudy prospects of rehabilitation I have, after engaging in the deliberations required by s.5(4C) of the Sentencing Act, concluded the sentencing purposes of just punishment, denunciation and both general and specific deterrence cannot be achieved by a community corrections order even with onerous conditions.

33I have concluded that I have no alternative but to impose an immediate custodial sentence and I am satisfied I ought to impose a total effective sentence and non-parole period.  The weapons offence was separate and
I have ordered a degree of cumulation.  I have ordered the sentence on the offence of committing arson whilst on bail be wholly concurrent.

34Having regard to all relevant factors and appropriate sentencing principles
I sentence you as follows: 

35Charge 1 arson, convicted and sentenced to three years' and six months' imprisonment. 

Summary charges: 

36Summary Charge 2 possess controlled weapon without excuse, convicted and sentence to two months' imprisonment. 

37Summary Charge 3 commit an indictable offence whilst on bail, convicted and sentenced to one months' imprisonment. 

38I direct that one month of the sentence imposed on the Summary Charge 2 be served cumulatively upon the sentence imposed on Charge 1.  Otherwise the sentences be served concurrently. 

39The total effective sentence is three years' and seven months'. 

40The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.  In all the circumstances I direct that you serve a minimum term of two years' before becoming eligible for parole. 

41As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you spent in custody is 261 days which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court. 

42I have made the disposal order sought by the prosecution. 

43Pursuant to s.6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty is sentence, five years' imprisonment, non-parole period, three years' imprisonment. 

44MS BHAI:  As the court pleases.

45HIS HONOUR:  That covers everything I think. 

46MS BHAI:  It does, Your Honour.

47HIS HONOUR:  Thanks.  If the prisoner could be removed and I will just stand down while we organise ourselves for the next matter.  Thank you. 

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