Director of Public Prosecutions v Meyer
[2023] VCC 675
•1 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00972
Indictment No N10002419.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW MEYER |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 9 February 2023; 28 April 2023 | |
DATE OF SENTENCE: | 1 May 2023 | |
CASE MAY BE CITED AS: | DPP v Meyer | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 675 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Guilty plea – one charge of arson – where fire destroys unoccupied residential house valued at $300,000 – where offender suffers acquired brain injury, post-traumatic stress disorder, adjustment disorder with mixed anxiety, depression and alcohol use disorder – application of Verdins principles
Legislation Cited: Crimes Act 1958 s 197(1), s 197(6)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; R v Verdins (2007) 16 VR 269
Sentence: Convicted and sentenced to a three-year Community Correction Order. Section 6AAA: Four years’ imprisonment with a non-parole period of two years and six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Cookson | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S. Andrianakis | Emma Turnbull Lawyers Pty Ltd |
HIS HONOUR:
1Andrew Meyer, you have pleaded guilty to one charge of arson for which the maximum penalty is 15 years' imprisonment. You pleaded guilty after a sentence indication hearing on 21 November 2022. At that hearing I did not give a sentence indication because there were sentencing issues still in contention between the parties, but after discussion about those issues and other matters you had a conference with your counsel, Mr Andrianakis, who then came back into court and indicated to me that you intended to plead guilty without the benefit of a sentence indication from me.
2The circumstances of the offence in this case are set out in the Prosecution Opening which was tendered as an exhibit on the plea and read out in open court.
Circumstances of the offending
3On 1 January 2022 at around 11.30pm, you set fire to a house at Cinerea Avenue in Ferntree Gully. The house was destroyed by fire. The value of the house was $300,000. The Prosecution Opening indicates that the house was unoccupied at the time of the fire. The residents of that address were Ms Robyn Scott, aged 29 and her three young children. She had been living there since July 2017 but according to the Prosecution Opening, was in the process of moving out when you set fire to the house. The house was owned by the Department of Families, Fairness and Housing.
4Ms Scott's former partner, Stephen Young, also lived at the address until he separated from Ms Scott in 2021. After that he was apparently at the house from time to time.
5You had a dispute with Mr Young back in 2019 and because of that dispute had attended at the Cinerea Avenue address on two occasions in that year. There does not seem to be any doubt about the dispute and it is set out in the neuropsychological report that was tendered on the plea.
6On the day of this offence, you were captured on CCTV footage walking your dog past the Cinerea Avenue address. You lived at Helen Road, Ferntree Gully, not far away. You were captured on CCTV walking up the driveway of the address. At approximately 11.36pm, you can be seen in the vicinity of a flash of light which is the moment the fire ignited. Two neighbours heard glass breaking at the property at around this time. You were then captured on the footage walking away from the fire followed by your dog. In addition to the destruction of the house the contents of the house were also destroyed, the value estimated at $50,000.
7At the scene the neighbours spoke to you and you told them you had smashed a window to try and put the fire out and that you cut your arm in the process. This was false. You told the neighbours you needed to go home.
8When police arrived at the scene you were still there, and you were treated as a potential witness. You told the police you had seen the fire and attempted to put it out. Again, that was not true.
9Forensic scientist Rachel Noble examined the scene on 2 January 2022. In her opinion the probable cause of the fire was ignition by a match or a lighter aided by the presence of diesel fuel. Diesel fuel was found in the carpet and the carpet underlay near the broken window. Diesel fuel was also present on the top that you were wearing.
10You were interviewed on 2 January 2022 and made what was largely a 'no comment' record of interview. It seems to me based on these facts the prosecution always had a strong circumstantial case that you were the person that lit the fire.
Victim impact
11A victim impact statement was received from Ms Scott. She said when she found out that the house had been burned down, she began shaking and she had panic attacks for several months. She said she was scared for her life and the lives of her children. She said that she and her children became homeless, lost their belongings, their furniture, and precious mementoes. She said she became isolated. She said she lost contact with friends for fear of being in suburbs where she might run into you. I take those matters into account in deciding the sentence in this case. There were some matters in the victim impact statement that were not read, by agreement between the parties.
Gravity
12Arson has a maximum of penalty of 15 years which reflects its seriousness. In this case you destroyed a residential house valued at $300,000 containing the personal possessions of Ms Scott and her children, all destroyed. Arson offences involve the inherent danger that the fire will spread from the premises targeted particularly in a residential setting.
13Such offences ordinarily attract a significant sentence of imprisonment for reasons of general deterrence, just punishment and denunciation. It has been suggested and I infer your motive was your hostility towards Mr Young who once lived there, although you did not give an account and you say you do not remember the offence. I do not infer that there was any substantial preplanning involved in the offending; for example, I do not know if the petrol was on the property or whether you walked past the house with criminal intent or whether it was fortuitous and I do not make any finding of any significant preplanning, but obviously, there was some level of forethought before you lit the fire.
14This is undeniably a very serious offence involving high value destruction of a house and the personal possessions of Ms Scott.
Personal circumstances
15You were born in February 1975. You are now 48 years old. You were brought up in Ferntree Gully. You have one older brother named Robert. Your father was an alcoholic who also suffered from bipolar disorder. He was violent towards your mother, your brother and yourself when you were a child. He committed suicide by hanging himself when you were somewhere between 17 and 20 years old. Your mother worked as a nurse. She is now retired. She suffers from respiratory issues. She also has had problems with alcohol but was not abusive towards you or your brother. You do not speak with your brother. Your relationship with him was difficult. You say he bullied you and assaulted you when you were growing up. He has drug problems and a psychiatric history. Although the Bugmy principles were not relied on, it is plain from this account of your formative years that they were extremely difficult for you.
16When you were 26 years old you were hit by a car when you were riding your bicycle and sustained a fractured skull and hip. You were rendered unconscious by the impact.
17You have a daughter, Jasmine, who is now 19 years old. You have some contact with her. She lives with her mother, Rebecca, and works in hospitality. You also have a four-year-old son named Kai to a subsequent partner. He is in foster care. You are currently single.
18You report that prior to suffering a brain injury, which I will describe in some greater detail, you were an active person playing squash, motorbike riding and participating in other outdoor activities.
19By way of education, you went to Box Hill High School and completed Year 11. You worked at Pizza Hut and Sizzler in your late adolescence and later when you left school you worked as a boilermaker and a metal fabricator with your uncle. You did not undertake an apprenticeship but you learned that work on the job between the ages of 18 and 20. After a gap of some four years in your working life, you returned to work as a roof plumber for a few years. You worked for Fabmetal in Bayswater and Custom Metal in Doveton for around eight years before being made redundant. You have worked for other metal fabrication companies, namely Excel in Kilsyth and another company in Bayswater.
20You had a substantial cannabis habit in your early twenties during which time you did not work. You have also had problems with alcohol over a long period. At the time of this offending, you were drinking heavily and on your description you consumed a bottle of vodka on each of the three days prior to the offending. You were also wearing prescribed Fentanyl patches for pain.
Criminal history
21You have a relevant criminal history. The first prior conviction of any significance was for drink-driving and driving while suspended in 2014. More importantly since May 2018, you have been before the courts regularly. On 22 May 2018, for making a threat to kill, false imprisonment and unlawful assault, you were placed on a Community Correction Order (“CCO”) for 12 months with community work and a range of conditions designed to promote your rehabilitation. In November 2018, for reckless cause injury, assault with a weapon, criminal damage and possession of an imitation firearm, you were placed on another CCO with 60 hours community work. In November 2019, you were dealt with for contravening the May 2018 CCO which resulted in a variation, such that that order really commenced on that day with similar conditions. On 17 August 2021, you were dealt with for contravening the CCO imposed on 8 November 2019 which resulted in a confirmation of the original order. Finally, on 17 August 2021, for the offence of affray, you were placed on an adjourned undertaking with conviction.
22Your criminal history is relevant in that it tends to indicate you have a propensity for aggressive conduct in recent years and you have a demonstrated history of breaching CCOs. It is also relevant to the assessment of your prospects of rehabilitation and the need for specific deterrence. However, your criminal history needs to be evaluated considering the matters referred to in the neuropsychological report of Dr Matthew Treeby tendered on the plea, and the defence submissions about the relevance of your mental state. All your prior convictions really occurred after you sustained a serious brain injury in 2012.
Mental health
23In 2012 you were in a volatile relationship with a woman named Katrina who is the mother of your son, Kai. During an argument, Katrina reversed out of a driveway and hit you standing behind the car. You apparently grabbed the rear window of the car and got trapped hanging onto the vehicle for 200-300 metres before being thrown off and losing consciousness when you hit the ground. You were taken to the Alfred Hospital with extensive bleeding to the brain and skull and facial fractures. You were admitted to Intensive Care at the Alfred before being discharged to the Epworth Hospital.
24After you were discharged you did not do follow up on your rehabilitation appointments at the Epworth and that is dealt with in some of the material that was tendered.
25A psychiatrist, Dr Nigel Strauss, said in his report dated 20 November 2018 which was written to your lawyers in relation to civil proceedings in respect of the head injury:
He still suffers from the significant effects of a head injury confirmed by the neuropsychological assessment, he still has significant post-traumatic stress symptoms and he continues to suffer from a chronic adjustment disorder with mixed anxiety and depressed mood. He also suffers from vertigo and epilepsy which should be commented upon by a neurologist. I note his various aches and pains particularly his back pain which should be commented upon by an orthopaedic specialist. From my point of view his injuries are consistent with the stated cause. Because of his various problems particularly his head injury he remains totally and permanently incapacitated. He should be seeing a psychologist fortnightly and indefinitely and he should take antidepressants regularly into the foreseeable future. He does require personal domestic assistance and gardening assistance. He is not capable of looking after himself. I do not believe a significant improvement in this man's condition is likely and his prognosis is guarded.[1]
[1] At page [6]
26In a neuropsychological report dated 5 October 2022 prepared for these proceedings, Dr Matthew Treeby said the following:
Mr Meyer has experienced persistent mental health difficulties since the time of his brain injury and he underwent a psychiatric assessment with Dr Nigel Strauss in November 2018…Dr Strauss opined, '[Mr Meyer] still suffers from the significant effects of a head injury confirmed by the neuropsychological assessment…he still has significant post-traumatic stress symptoms and he continues to suffer from a chronic adjustment disorder with mixed anxiety and depressed mood.'[2]
[2] At paragraph [26]
27Dr Treeby referred to Dr Strauss' conclusion that you have been totally and permanently incapacitated by your injuries.
28Dr Treeby says in his supplementary report dated 1 February 2023, that:
…frontal lobe and other brain damage of the nature that Mr Meyer experienced in 2012 is known to compromise judgement, insight, impulse control, social behaviour, and the ability to manage and control emotions. Mr Meyer's severe brain injury was clearly life changing and has had a substantial and enduring negative impact on all areas of his functioning across life domains. Indeed, almost all of Mr Meyer's offending has occurred subsequent to his life changing severe traumatic brain injury in 2012.
Mr Meyer's brain injury has resulted in slowed information processing speed, an impulse control disorder, and additional impairments in the areas of verbal and visual reasoning. He has severe difficulties with cognitive flexibility and he has the tendency to get “stuck” or perseverate on ideas. Mr Meyer's executive dysfunction compromises his ability to make reasoned and appropriate judgments in various circumstances and this would have been evident at the time of the alleged offending.
Mr Meyer's brain injury has compromised his ability to control his impulses and emotions effectively. Due to his impulse control disorder, he may act on the spur of the moment, without adequate consideration of the consequences. He is easily overwhelmed and when his coping resources are exceeded, he may be inclined to resort to sub-optimal ineffective or clearly problematic coping and problem-solving strategies.
My overall impression of Mr Meyer's triad of mental, behavioural and emotional impairments due to his brain injury played a major role in the offending behaviour. With that said, his reported intoxication on alcohol and opioid medication is also relevant in terms of explaining some portion of the offending behaviour, in that it is likely to have acutely exacerbated his ABI-related cognitive, behavioural, and emotional impairments.[3]
[3] At paragraph [19]-[22]
29At other parts of the report, Dr Treeby deals with your issues with Mr Young and says that that is the matter that you were 'perseverating about' at the time of the offending.
30He acknowledged in the report, as I have quoted, that intoxication and opioid medication are potentially also relevant.
31He accepted that 'protracted heavy alcohol use' played some role in compromising your judgment.
32He said that perseverative thought following a brain injury often contributes to interpersonal difficulties. He said that people with brain injuries such as yours become stuck on certain thoughts, ideas or beliefs leading to repetitive and intrusive thinking patterns and an inability to respond appropriately to interpersonal conflict. Further, such people may have trouble controlling their emotions and expressing themselves effectively leading to difficulties in social interactions and relationships. It seems clear enough this has been your experience of an acquired brain injury.
33Dr Treeby suggested in his report that there are a range of tailored interventions which may reduce your risk of recidivism and they are set out in his report. It was submitted by Mr Andrianakis that the interventions listed by Dr Treeby would not be available in a custodial setting and that what is required is formal intervention with a clinical neuropsychologist.
Dr Treeby's evidence
34Dr Treeby also gave evidence on the plea hearing. Some of what he said repeats what I have described in the report, but I will give a summary of the evidence.
35He said that looking at the chronology of your offending, it is apparent that the offending commenced after you sustained the acquired brain injury (“ABI”). He said this tells him that the severe traumatic brain injury is a contributing factor to the offending. He accepted you have had problems with excessive consumption of alcohol, and that this was also a contributor to the offending. He said apportioning what contribution alcohol made as compared to the ABI is very difficult. He said the intoxicating effects of alcohol would exacerbate and further compromise impulse control. He was asked about the fact that you were wearing a Fentanyl patch and he was not able to give definitive evidence about whether that would have contributed to the offending.
36He gave evidence that your ABI affects your ability to regulate your alcohol use. It compromises your ability to control and regulate drinking.
37He gave evidence that the ABI affects your interpersonal functioning. Such a condition makes it more difficult to manage your emotions and, in a custodial setting, this is likely to involve the increased risk of conflict. He said there was some risk of deterioration in your mental health if a prison sentence is imposed but he was not sure about that.
38He then went back to the issue of perseveration on previous altercations with Mr Young and the connection to the offending.
39In cross-examination, he said there was a link between cognitive inflexibility and perseverance. The prosecutor Mr Cookson cross-examined Dr Treeby about your concession that you had 'drunk a bottle of vodka every day'. He said that you struggle with impulse control. He said you know alcohol is bad for you. He said that he assumed on the night you were emotionally dysregulated, and to add alcohol would further disinhibit you. He again said apportioning between the ABI and alcohol consumption is impossible.
40He described perseverating as ‘getting stuck’ and involving an inability to shift away from a particular idea. He said alcohol does not typically cause perseverance, but it does compromise impulse control.
41He conceded that alcohol certainly played a role in the offending and conceded that you probably would not have engaged in the offending behaviour if you had not been intoxicated.
42He said that his impression was that you were shaken by the fact that you had burned a house down. He said you had remorse, regret, and shame about what you had done.
43He described your life after the ABI. As to why there was a cluster of prior convictions from 2018 until this offence, he said that after brain injury relationships break down, unemployment becomes chronic, a loss of identity and role occurs, and the individual becomes socially isolated. He said that this has occurred in your case and you have become increasingly reclusive. This is supported in his written report and in a good deal of the other material tendered on the report. This increases, he said, the potential of alcohol problems and psychosocial decline.
44He said that since the offending you have been 'by and large successful' in curbing your alcohol use.
Verdins principles
45Mr Andrianakis submitted that the principles in R v Verdins (2007) 16 VR 269 (“Verdins”) are enlivened. He submitted based on Dr Treeby's report that your cognitive impairment played a major role in the offending, reducing your moral culpability and reducing the need for denunciation to be given prominence as a sentencing objective. It was further submitted that you are unlikely to obtain the treatment Dr Treeby believes you require in prison, and that you are able to comply with a CCO which would allow for treatment. Mr Andrianakis also submitted that your mental state issues should result in a moderation of general deterrence and that your experience of prison would be more onerous than someone without your condition.
46Mr Cookson focused on the role of your consumption of alcohol in the offending. The issue between the parties was not so much as to whether Verdins applies to reduce moral culpability and moderate general deterrence, but the degree of weight that should be attached to the Verdins principles, in circumstances where alcohol was a contributor to the offending.
47I accept the evidence there is a realistic connection between the offending and your ABI. Your preservative thought patterns and compromised impulse control played a significant role in the offending. The contribution alcohol made to the offending must be taken into account but in circumstances where I have clear evidence of your psychosocial decline and evidence from Dr Treeby that your ABI has made it more difficult (but not impossible) for you to overcome alcohol abuse, the ABI remains an important factor in the assessment of your moral culpability.
48Mr Cookson submitted that your positive progress in dealing with your reliance on alcohol contradicts the notion that the ABI has made it more difficult for you to address your excessive drinking and that alcohol was a problem for you prior to the ABI. It is true that you have now managed to curb your drinking, but Dr Treeby did not postulate that you could not combat your alcohol problems, he said it was more difficult for someone in your condition. I accept this.
49In my opinion, also your isolated, reclusive social circumstances and real interpersonal problems, as a result of your ABI, informed and contributed to all the decisions you were making in your life at that time, including extreme alcohol consumption. Your ABI, alcohol problems and social circumstances do not exist in isolation of each other, they are interconnected. Your overall life circumstances in my view played a role in the offending. All of that said, committing arson was an extreme reaction to the grievance you were ruminating on.
50In the end I accept that a significant moderation of general deterrence and a significant reduction in the assessment of your moral culpability is required for a person such as you, with a severe ABI living the sad, isolated life that you were leading at that time.
51On all the material it does seem as though committing this offence shocked you into the realisation that you needed to address your alcohol problem and you took immediate steps. You sought and obtained a prescription for Naltrexone very shortly after the offending. In the aftermath of being arrested it seems clear enough you understood the gravity of the offending in the case (and took steps to address the issues that underlie your offending behaviour). It seems to me that not only were you shocked by what you had done, you understood the potential punitive consequences of the offending. Therefore, specific deterrence remains a sentencing objective relevant to you but the potential consequences seem to me to have already operated as a deterrent.
52
Based on the evidence of Dr Treeby, I accept also that any period of imprisonment I impose will be affected by your ABI and you will find imprisonment more burdensome than a person without your brain injury. This was not disputed by the prosecution. In the material that I have before me, including the extended
pre-sentence Report from Corrections, it is clear that you have been the victim of assaults yourself on a number of occasions and that when you were previously on CCOs, you turned up from time to time to Corrections injured. Given your particular style of interpersonal relations, it seems to me you are likely to be a vulnerable person in prison and the fact that you have been the previous victim of assaults is a signal of likely vulnerability. Principle 5 therefore of Verdins applies and it is not insignificant in this case.
Guilty plea
53You pleaded guilty to the offence in this matter after a sentence indication hearing. As I said earlier, I did not in the end give you an indication at the end of that hearing.
54In the circumstances, I am satisfied that your guilty plea indicates remorse and insight into the offending. You have shown a willingness to facilitate the course of justice. The utilitarian value of your plea is significant. You have spared the witnesses, including Ms Scott, the experience of having to give evidence and relive the circumstances. Additionally, the utilitarian value of your guilty plea is heightened in the current circumstances where the court faces a backlog of trials because of the suspension of trials during the pandemic. I apply the principles in Worboyes v The Queen [2021] VSCA 169 and other cases. You must receive a significant sentencing discount for your plea of guilty.
55Just returning to the issue of remorse, you said this to Dr Treeby:
“No matter what happens, I'll carry the thought of this for the rest of my life. I'm disgusted by this. It's embarrassing. I never thought I'd end up in prison. I'm disgusted with myself, plain and simple. I’d never want my children or mum to know. It's just horrific, what I've done, that's what it is.”[4]
[4] Supplementary Neuropsychological Report of Dr Treeby at paragraph [18]
56As I say, I am satisfied you have some genuine remorse for this criminal behaviour, a conclusion which is supported by what you have done since to address the underlying issues of your offending.
Prospects for rehabilitation
57Tendered on your behalf were letters from psychologist, Margaret Jansen, dated 21 July 2022, 7 October 2022, and 22 April 2023; letters from Bel Neil from the drug rehabilitation organisation EACH dated 18 November 2022 and 30 May 2022; a letter from Lee Cameron also from EACH dated 24 April 2023; a letter from your occupational therapist Sophie Symes dated 27 April 2023; and letters from Dr Ebrahim Hosseini, your general practitioner, who has provided information relating to your overall health and his dealings with you.
58Additionally, historical material relating to your brain injury was supplied, some of which I have referred to. There is no doubt about the severity of that injury.
59In her letters, Ms Jansen confirms that after this offending you had regular sessions with her where you worked on symptoms of anxiety and depression. In her letter of October 2022, she said your mental health was supported by your sobriety which you were maintaining, and that the changes in your lifestyle seemed promising. In her letter of July 2022, she says that she has treated you since September 2015 after a referral for treatment of major depression. She describes that at that time you were experiencing symptoms of post-traumatic stress disorder, chronic depression and anxiety. She said the brain injury set in train a very different life trajectory compared to the life you were leading before the injury. She described that you suffered significant impairments in cognition, and impairments to your personal, social and occupational functioning. You had no employment after the brain injury and you had become a recluse, having only minimal contact with family members and with support workers at times when you reached out. She said you had been proactive in getting support and you were leading a sober life. You continue to see Ms Jansen.
60The letters from Bel Neil establish that you were undergoing drug and alcohol counselling throughout last year and that, at that time, you had achieved your goal of remaining abstinent from alcohol. The more recent letter from Mr Cameron confirms your ongoing engagement with EACH and that you have been engaging well and you are learning to manage your emotions rather than resorting to alcohol to cope with stressors, feelings and past trauma.
61Your occupational therapist, Ms Cunningham, says you have been seeing Independent Rehabilitation Services since November last year for fatigue, back pain and your limited levels of social engagement.
62The letters from Dr Hosseini, your general practitioner, set out the risk of seizures in your case and the medication you are taking for various conditions. A more recent letter was provided indicating your fitness for community work.
63As I said earlier, you also commenced taking Naltrexone very soon after your arrest with the aim of reducing your cravings for alcohol.
64You did confess on the plea, confirmed in other documents, that you had a relapse in relation to alcohol at Christmas time last year. You said you consumed a four-pack of alcohol. By that time, you had stopped using the Naltrexone but you are prepared to go back on that drug if necessary and you have another prescription from Dr Hosseini.
65I am, as I have said, satisfied you have taken steps to address the underlying causes of your offending namely your social isolation, the sequelae of your ABI (to the extent that you are able to do so) and your reliance on an excessive use of alcohol.
66The test will come for you when the spectre of these proceedings and potential imprisonment has passed and you are in the community dealing with your challenging life circumstances. The key to your rehabilitation will be to continue accessing the supports that have been put in place, to try and change your reclusive, isolated social circumstances and to remain sober. On all the material I have some optimism that you can do this but it will not be easy for you and based on your prior convictions, you have failed in the past.
Submissions
67Turning then to the submissions of Mr Andrianakis and Mr Cookson, both of whom made detailed and helpful submissions on this plea.
68Mr Andrianakis submitted that having regard to the mitigating factors in this case, in particular the application of the Verdins principles and the process of rehabilitation that has commenced, I should impose a CCO without any period of imprisonment. He relied on the decision of the Court of Appeal in Boulton v The Queen [2014] VSCA 342 (“Boulton”). He argued that a period of imprisonment would disrupt your rehabilitation and destroy the supports you have put in place.
69Mr Cookson, the prosecutor, submitted that the objective gravity of the offending was too serious for such a disposition, having regard also to your prior convictions. He submitted that an immediate period of imprisonment was required to properly emphasise general deterrence and denunciation and just punishment. He further submitted that your track record on CCOs and your inability to undertake and complete community work in the past make community work an ineffective tool to achieve the punitive purpose of the sentence and would be setting you up to fail. Mr Cookson submitted that a combination sentence of a CCO and imprisonment was within the range of appropriate sentences.
70In this case, the decision of Boulton does have application. In Boulton, the Court of Appeal held that even for very serious crimes, in some circumstances, the imposition of a CCO could meet the relevant sentencing objectives. The Court of Appeal said that the sentencing judge must ask the question whether, in all the circumstances, the proper application of sentencing principles requires a period of immediate imprisonment with all its disadvantages, or whether a CCO of an appropriate length and with appropriate punitive conditions, can meet those objectives.
71For an offence such as this, ordinarily principles of denunciation, general deterrence and just punishment would dictate a not insubstantial period of imprisonment to be served. However, your circumstances are unusual. I have found that moral culpability is reduced quite significantly by your ABI and general deterrence is to be moderated because of your mental state issues.
72Furthermore, I accept that the conditions currently in place to support your rehabilitation will not be available in prison, but a CCO can be structured to address your particular problems. As to the punitive purpose of the sentence, you can perform community work with some limitations and you will have to complete substantial hours. If you do not, you will be in breach of the order that I intend to impose and you will face resentencing for this offence. I will have little option but to impose a period of imprisonment if you breach the CCO I intend to impose in this case.
73Furthermore, as I have said in these remarks, I am of the view you would be a vulnerable prisoner and that your experience of imprisonment would be significantly more onerous than that of someone without your mental state issues.
74Taking into account all of the matters in this case and what I regard as powerful mitigating features, I have decided that a CCO alone rather than a combination order is appropriate for what is undeniably serious offending.
Sentence
75Mr Meyer, if you could stand up. The order that I intend to make is this:
76You are convicted and sentenced to a CCO for a period of three years. The mandatory terms that apply on all CCOs apply and I will come back to those. I am ordering substantial community work in this case; nothing less would be appropriate for the punitive component of the Order. You must perform 280 hours of unpaid community work over the three years that this Order runs for; 50 hours of treatment and rehabilitation satisfactorily undertaken can be counted as hours of unpaid community work for the purposes of this condition.
77Additionally, you must be under the supervision of Community Corrections for a period of three years.
78You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager of Corrections.
79You must also undergo any mental health assessment and treatment as directed.
80You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.
81The core conditions are that you must not commit another offence punishable by imprisonment for the period of this Order, that is three years, do you understand? If you commit another offence, what have you done?
82OFFENDER: I've put myself in prison.
83HIS HONOUR: Yes. You will have breached the order, you have to come back and I have to resentence you, all right, and I will not have much choice.
84You have to comply with any lawful directions from Corrections. If you change your address, you have to tell Corrections. If you are working and you change the location of your work, you would have to tell them. You cannot leave Victoria without telling Corrections and you have to obey all of their lawful instructions and directions.
85The relevant Community Correction office is Ringwood, located at 60-62 Maroondah Highway in Ringwood. You no doubt know that. I will have an initial judicial monitoring in this one, I think. I will make it three months down the track to see how you are going and that means you have to come before me, all right. It is not recommended by Corrections, but I think I will have it in your case to see that everything that I hope happens on this order, is happening.
86Just while we are doing that, do you consent to this order?
87OFFENDER: I certainly do, Your Honour.
88HIS HONOUR: All right, very well. Mr Andrianakis can have him sign it. All right, we will have a judicial monitoring 1 August, it will be at 9.15am. Now do you connect to the internet? Have you got a computer, that sort of thing? No. Well, you might have to come into the court then, all right, and I will see how you are going on the Order then.
89HIS HONOUR: Look this is going to be a long road for you, Mr Meyer, three years. You have not been able to succeed in the past but I suspect your attitude has changed. I have said as much in these remarks. You are really going to have to focus on getting this done, because it is unlikely you would get another chance if you do not. Were there any other orders that I haven't made?
90MR ANDRIANAKIS: Your Honour, just one matter. I am not sure if there was a 6AAA declaration made.
91HIS HONOUR: Had you pleaded not guilty and run this to trial and been convicted, I would have given you a sentence of four with two and a half. Do you understand? All right.
92MR ANDRIANAKIS: Your Honour pleases.
93HIS HONOUR: Thank you.
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