Director of Public Prosecutions v Morgan

[2020] VCC 1113

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00755

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MORGAN

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2020
DATE OF SENTENCE:	27 July 2020
CASE MAY BE CITED AS:	DPP v Morgan
MEDIUM NEUTRAL CITATION:	[2020] VCC 1113

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:            Robson v R [2018] VSCA 256; DPP v Danielz [2015] VCC 1506;
  DPP v Kingston [2018] VCC 1310; DPP v Marshall & Ashley [2016]
  VCC 558; DPP v McGrath [2019] VCC 209; Saxe [2014] VCC 605;
  Ashton v R [2010] VSCA 329; DPP v Moore [2009] VSCA 264; R v
  Imadonmwonyi [2008] VSCA 135
Sentence:                 Total effective sentence 36 months; non-parole period 24 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	Office of Public Prosecutions
For the Accused	Mr J. Anderson	Sullivan Braham Barristers & Solicitors

HIS HONOUR:

1Andrew Morgan, you have pleaded guilty to 8 charges of intentionally causing a bushfire contrary to s.201A Crimes Act.  The maximum penalty for each of these offences is 15 years. 

2You are to be sentenced as a serious arson offender as you have previously been convicted on two charges of intentionally causing a bushfire and were sentenced to a term of imprisonment on these charges.

3The declaration that you are a serious arson offender has three prima facie consequences for the sentencing process.  First, the protection of the community becomes a dominant sentencing factor.  Secondly, orders for accumulation of such sentences should ordinarily be made.  And thirdly, the Crown can (and on opening in this matter did in your case) seek a disproportionate sentence in order to achieve the protection of the community.  I shall return to these matters later in the sentencing remarks.

4As I have mentioned, you have relevant prior convictions.  I shall return to these matters also later in the sentencing remarks.

5The Crown tendered a summary prosecution opening on plea as Exhibit A.  A summary of your offending is as follows.

6You lit the eight fires between 2 and 3 January 2019 within the township of Nowa Nowa which is about 23 kilometres north-east of Lakes Entrance.

7Late on the night of 31 December 2018, police found you at the Nowa Nowa recreation reserve after you had been seen camping outside the pony club which is adjacent to the reserve.  You were sleeping on a mattress on top of a picnic table.  Police told you that you could not camp there and offered to assist in finding long term accommodation.  You appeared agitated and after about 10 minutes the police left you lying on the mattress.

8The police returned the following day to check on you and you were still camping at the recreational reserve.

9Police again returned on 2 January.  You were lying on the picnic table and you were covered with a blanket or the like.  Police did not speak to you at this time.  When police returned two hours later, you were not there.  The two police officers then commenced to search for you and found you swimming in the river.

10Later that afternoon at about 3 pm, members of a family were fishing at the river.  Family members could see four different spot fires.

11In all, you lit seven fires on the afternoon of 2 January.  This required a response from CFA trucks and tankers.  Because of the difficulty in reaching the fires, further resources from the police, Department of Environment, VicFire, helicopters, water bombing aircraft and a bulldozer were deployed.

12The fires were eventually brought under control by 9.30 pm on 2 January.

13This forms the basis of Charges 1-7.

14The following day on 3 January 2019 at approximately 12 midday, the Department of Environment was notified of fire at Browns Road, Nowa Nowa.  An officer from that department attended and saw you sitting on a log in the middle of the fire.  You told the officer that you lit the fire the previous night because you were cold and the fire was doing 'a great job'.  You stated that you lit the fires the previous day in order to clean up the bush.  When the officer replied it was not the right time to be burning the bush, you said 'if it's ready to burn then it's the right time of year'.

15This fire you lit on 3 January is the basis of Charge 8.

16The fire scenes were analysed by a VicPol forensic officer.  The investigator concluded that you probably lit each of the fires with a cigarette lighter.

·Fire one was about 25 metres² on the edge of the river;

·Fire two was about 50 metres away from fire one and was about 2 metres²;

·Fire three was lit about 40 metres away from fire two and was about 50 metres² in size;

·Fire four was lit about 10 metres from fire three and was about 15 metres² in size;

·Fire five was about 380 metres from fire four and was about 30 metres² in size;

·Fire six was about 310 metres from fire four and was about 25 metres along its edge and 15 metres up the slope;

·Fire seven was approximately 60 metres from fire five and had burnt about half a hectare; and

·Fire eight was located approximately 320 metres north of Browns track and had burnt about half a hectare.

17You were taken into police custody.  You were assessed on 3 January and again on 4 January to be unfit to be interviewed because of the state of your mental health.

18There is no evidence that you were drug affected at the time of your arrest or at the time of your offending on this occasion.

19You have now spent 571 days on remand by way of presentence detention, excluding today.  You are currently held in custody at the Thomas Embling Hospital.  You are on a secure treatment order.

20It is necessary to consider the objective gravity of your offending.

21The offence of intentionally causing a bushfire is a serious one.  As your counsel succinctly admitted as to the objective seriousness of your offending:

'...the maximum of 15 years' imprisonment makes this plain.  An obvious danger of this type of offending is the risk of uncontained fire spread and the risk this poses to life and property.  Although the … damage caused by these fires was relatively small that is only one aspect of the gravity of the offence.  The court ought also to sentence on the potential for damage.

It is evident that significant resources were deployed to quickly contain and control the fires'.

22My only note of caution on this assessment is that I must be careful in taking into account the potential for the fire to cause damage.  What I can take into account is the terrain in which some of the fires burned was difficult to access; and the conditions on the day were sufficiently dry to allow the fires to catch; but they were at least not fanned by high wind.  The following day however was a total fire ban day.

23The fires were made more serious by the sheer number of fires you separately lit, the terrain in which you lit them and the difficulty of access firefighters had to extinguish them; and by the fact that the fires required an extraordinary combination response in terms of firefighting trucks, a bulldozer helicopter and an air bomber to contain them.  When seen in those terms, the response highlights the danger your actions caused and posed to the land and potentially to human life.

24I accept that there is no evidence of any planning or sophistication in the offending, and there is no evidence of accelerants being used.  Rather, it is likely, as I said, that you used a cigarette lighter or matches to start each fire.

25Although you gave some explanation about wanting to keep warm and about clearing the bush, it is hard to find any coherent motive for lighting each of these fires.  It is evident from your presentation to the police in the days leading up to the fire and from the fact that you were assessed as unfit to be interviewed on
3 and 4 January 2019 that you were firmly in the grip of your mental illness at the time you committed these offences.

26Mr Anderson submitted on your behalf that the evidence shows that the seven fires lit on 2 January 2019 were in relatively close proximity to each other (over a distance of approximately 1 kilometre).  Maps at DEP216 and DEP218 show the areas of bushland affected by the fire.

27Accordingly, Mr Anderson submitted there is a proper basis for considering that the eight fires, and particularly the first seven fires caused on 2 January 2019, were a related series of offences warranting a very high degree of concurrency, because the offences were geographically and temporarily proximate.

28Mr Goetz, who prosecuted this matter on behalf of the Crown, submitted that each fire was separate and warrants a measure of cumulation.  In any event, Mr Goetz submitted that the legislation provides that because you are sentenced as a serious offender, it is presumed that sentences will be served cumulatively.

29In my view, the seven fires of 2 January 2019 and resulting seven charges should properly be seen as separate.  Although they were all relatively close in proximity, each required a separate ignition and a separate response from firefighting agencies.  Moreover, a plea of guilty was entered to each separate charge.  I accept that there was a continuity of conduct in lighting each of the fires.  I also accept that in determining periods of cumulation and concurrency I must have regard to the principle of totality.  Nevertheless, I consider that, having regard to the separateness of each fire and each charge, and having regard to the serious offender provisions, a measure of accumulation is warranted between each of the charges on the indictment.

30Ordinarily, the objective seriousness of your criminal conduct would attract principles of deterrence, denunciation, just punishment and protection of the community.  Your moral culpability must however be assessed in light of your long-standing mental illness.  In this case, your mental illness moderates the significance of general deterrence in the sentencing consideration.

31Nevertheless, in light of your prior history for lighting fires, your ongoing illness and its uncertain prognosis, and the extent of your offending on this occasion, as well as the stated objective of the Serious Offender provisions, the protection of the community takes a very important role in the sentences I will impose.  I shall say more about this after I have outlined your personal circumstances and I turn to those now.

32You are 32 years of age and were born on 25 April 1988.

33You were born in Orbost and grew up there with your parents and three siblings.  You completed your schooling until the end of Year 11 and reported to Dr Maria Triglla (as per her report of 5 December 2018) that you found schooling difficult, particularly reading and writing.  After leaving school, having undertaken a Certificate II in Agriculture, you commenced work as a farm hand.  Eventually you started your own farming business raising cows.  Up to this point you were leading a law-abiding life.

34However, at the age of 25 you began using methamphetamines.  It was at the time that this use began that you also developed psychotic symptoms.  There was no history of mental illness in your family.  These psychotic symptoms led, over time, to a diagnosis of schizophrenia.  You presented often with delusional thoughts, including that your siblings were not in fact your siblings and were trying to poison you.  You have in the past been treated with antipsychotic medication, both whilst in hospital and whilst living in the community.

35Since 2012 you have had regular contact with mental health services.  You were hospitalised in a psychiatric ward on five occasions between 2012 and 2015.  These admissions occurred when you were using drugs, including speed and ice, and when you stopped taking your antipsychotic medications.

36You have experienced periods of incarceration and also homelessness over the years.  At the time of this offending you were again homeless.

37Your psychotic symptoms are no longer dependent on the use of illicit substances.  There is no history or evidence of your reverting back to substance abuse since you were last released from prison.  And as I have said, there is no evidence that you were under the influence of any illicit drugs at the time of this offending. You remain unwell, to the point where you have been subject to a secure involuntary treatment order whilst in custody.  This was confirmed in the letter of Dr Bhalla dated 12 May 2020, which indicated you continue to undergo compulsory treatment, and have been referred to two Secure Extended Care Units to provide treatment to support your recovery and rehabilitation whilst in custody.  You are currently held at the Atherton unit, at the Thomas Embling Hospital

38At the time of your offending, it appears you had intervention orders preventing you from seeing family members and you were unable to enter certain postcodes.  Mr Anderson told me that you remain subject to an intervention order preventing you from being within 5 kilometres of Orbost.  Although you apparently have the support of one aunt, it seems that you have alienated a number of family members and those previously close to you in the course of your illness.  You speak with great antipathy of your father and a stepfather.

39I do not have any material which indicates the existence of particular family or prosocial supports upon your release back into the community.  You told
Mr Anderson that you wish to live with friends in Warragul on your release.  You told the corrections assessment officer that you wanted to live with 'Jason and Karen in Carrum Downs'.

40You have a considerable number of prior criminal matters dating back to 2013.  I must refer to some of them as they are particularly relevant to your current offending and circumstances.

41In 2015, you were convicted of reckless conduct endangering life, intentionally damaging property, burglary, theft and being a non-prohibited person in possession of a long arm firearm without a licence.  In sentencing remarks from 2016, Judge Gaynor sets out the circumstances of that offending in some detail.  Essentially, whilst apparently in a psychotic state, police were called in response to your bizarre behaviour in confronting family members and your grandparents.  You broke the padlock to a gun safe and took a .303 rifle to your grandfather's place.  As police arrived, you were doing burnouts in a ute in a paddock.  You saw police push your grandfather out of the way as they approached you to talk to you.  You drove straight at police through a fence.  You collided with a police car.  You then drove around the property and lit about five to seven fires.  On 9 September 2015, you were placed on a combination sentence (that is, with time served) with a community corrections order for this offending.

42In 2016, you appeared before Judge Gaynor on two charges of intentionally lighting bushfires.  By December 2015, your mental health had deteriorated significantly.  On 29 December 2015 you set fire to a couch and rubbish on the side of the road causing a fire approximately 50 metres by 10 metres.  Later that evening at about 8.00 pm, you lit 11 separate fires ranging in size from about 1 metre² to half an acre.  It took CFA crews about three hours to extinguish the fires.  You were again placed on a combination sentence with time served and a community corrections order.

43On 18 January 2017 you were convicted at the Bairnsdale Magistrates' Court of criminal damage by fire (that is, arson).  I do not have any details but you were placed on a community corrections order for this offending.

44You have had numerous other appearances.  You have contravened every community corrections order you have been placed on.  In addition, you have multiple convictions for:

·drug possession;

·contravening family violence orders;

·firearms offences;

·driving offences and;

·committing offences whilst on bail.

45I was provided with three significant psychiatric reports and a supplementary report.  It is necessary to say something about each of them.

46The Forensicare report of Dr Maria Triglla dated 5 December 2018 outlines in detail your long history delusional thoughts.  Dr Triglla concluded that you met the criteria for paranoid schizophrenia (chronic in partial remission) and multiple substance abuse disorder.

47Dr Triglla notes that you were treated with depot antipsychotic medication under a community treatment order in the past; when you were taken off the community treatment order you have been non-compliant with treatment and your mental state has deteriorated.  Dr Triglla states that on the information available, many of your offences have been driven by your psychotic symptoms and that substance abuse in the past has repeatedly exacerbated your symptoms.  Dr Triglla stated:

'His contact with the criminal justice system appears to have occurred in tandem with the onset of his psychotic illness.  His offences have involved behaviours associated with his delusions that have placed others, particularly family members and acquaintances, at risk'.

48Psychiatric registrar Dr Suhas Simhan prepared a Forensicare Psychiatric Report under the supervision of Professor Andrew Carroll dated 3 April 2020 in relation to these proceedings.

49Dr Simhan outlined your mental state at interview, where you denied perceptual disturbances and stated that you do not believe that you suffer from schizophrenia.  Dr Simhan concluded that there was clear evidence of active psychotic symptoms in the form of an entrenched complex delusional belief system with persecutory and bizarre content.  It was impossible to obtain a reliable personal history from you due to your delusional beliefs and memories.

50Dr Simhan’s report primarily addressed whether or not you were fit to enter a plea to the charges.  Dr Simhan concluded that you were fit to do so and although there was clear evidence of psychosis, it had improved with treatment with the medication clozapine.

51Dr Ruchi Bhalla supplemented Dr Simhan’s report by stating that as at the plea date of 13 May 2020, you continue to meet the criteria for paranoid schizophrenia that is treatment resistant, and you continue to meet criteria for a compulsory treatment order in hospital within the framework of the Mental Health Act.  Even if you were released from custody on the plea date (which of course you were not), you would continue to receive treatment at Thomas Embling Hospital under a Temporary Treatment Order.

52As Dr Simhan’s report principally addressed the question of fitness to stand trial, with the consent of both council I ordered a presentence psychiatric report.  The report of Dr Fiona Best, psychiatrist at Forensicare, dated 13 July 2020 reports (amongst other things) as follows:

·First, your file review shows you have a significant history of stimulant and cannabis use and you have attended drug and alcohol rehabilitation when ordered;

·Second, on assessment by Dr Best, there is evidence of ongoing major mental illness and you are in need of ongoing and immediate psychiatric treatment.  You are currently diagnosed with schizophrenia, multiple episodes, currently in an acute state.  Dr Best reports 'it is recommended that Mr Morgan continues with his current treatment plan and it is imperative that he continues to take his antipsychotic [medication] and ceasing his medication will likely result in relapse';

·Third, Dr Best reports that the reported history indicates a diagnosis of stimulant use disorder and cannabis use disorder.  She reports you are ambivalent about taking part in a drug and alcohol program but such a program is recommended to reduce the risk of relapse and therefore of reoffending.  She stated you were unable to acknowledge your substance abuse history and the part it has played in your offending;

·Fourth, she stated you report a significant history of abuse as a child and also childhood trauma, although earlier reports query whether this is also delusional.  Dr Best was unable to assess whether it was delusional or valid; and

·Finally, Dr Best reported that you were unable to give a meaningful account of the offending and your ongoing symptoms were impairing your ability to give a clear account because you are psychotic and thought disordered.

53Dr Best concluded:

'It is very likely that he was unwell at the time of the alleged offending and that his mental illness impacted on his ability to think clearly and rationally and that his judgement was impaired as a consequence of these factors at the time of the offending'.

54She continued:

'I am of the opinion that Mr Morgan's treatment should continue either at Thomas Embling Hospital or, at the point of release, for him to be transferred to an acute inpatient psychiatric unit in the community on an Assessment Order under the Mental Health Act Vic, 2014'.

55I am prepared to accept that your offending on this occasion either resulted from, or was substantially contributed to by, your paranoid schizophrenia; that is, either by your psychotic symptoms or disordered thought patterns.  Reading over the psychiatric reports and the reference to a further, earlier report of Dr Leon Turnbull in 2015, it seems likely that your illness either caused or contributed to much, if not all, of your offending over the years.

56I can only take the opinion of the psychiatrists, and particularly of Dr Best, that your substance abuse has also played a significant role in your offending up to but excluding this offending.  It is not clear whether your offending is directly attributable to substance abuse or whether it has triggered or coincided with the onset of your bouts of your psychosis.  It is clear however that substance abuse remains a major impediment in the treatment of your mental health problems and is a factor in your offending or has been historically a factor in your offending.

57The next principal conclusion I draw is that significant aspects of your offending have caused a real risk or have posed a potential danger to those around you and members of the public:

·there has been the contravention of court and family violence orders;

·there has been reckless conduct;

·the lighting numerous fires;

·the possession of firearms; and

·reckless conduct charges –

all matters which may have occurred while you were critically ill, but they are all matters that have put your family and members of the public and risk.

58Your offending on this occasion, by the lighting of multiple fires, potentially put peoples' safety and perhaps even lives at risk.

59Mr Anderson submitted on your behalf that the following matters should be taken into account in determining the appropriate sentence:

·first, the plea of guilty;

·second, notwithstanding the serious offender provisions, the nature of the offending should lead to a considerable degree of concurrency between sentences;

·third, in accordance with the case of Verdins your illness should operate to moderate principles of deterrence and that I should find that it will make your time in custody more burdensome. In particular Mr Anderson said the sentence I impose should be moderated because limbs one, three, four and five of Verdins were enlivened.  With that proposition Mr Anderson particularly referred to paragraphs 34-38 of Dr Best's report; and

·fourth, Mr Anderson submitted your illness requires considerable treatment once you are released back into the community.  The sentence I impose should enable that transition to occur.

60Mr Anderson provided the Court of Appeal case of Robson and a number of sentences of this court for me to consider.  They were cases of Danielz, Kingston, Marshall & Ashley, McGrath, and Saxe.  Ultimately, Mr Anderson submitted that I should impose a combination sentence of imprisonment with a community corrections order.  This type of sentence, he submitted, was facilitated by the fact that there is no restriction on the length of imprisonment that may be combined with a community correction order for this type of offending.

61Mr Goetz, who appeared to prosecute this matter, submitted that a combination sentence of imprisonment was inappropriate.  Rather, the Crown submits that you should receive a sentence with a non-parole period.  As you are to be sentenced as a serious offender, the Crown submits that the presumption of cumulation should be enforced, at least to some extent.  As a serious offender, the principal objective of sentencing is protection of the community.  The Crown initially submitted that the imposition of a disproportionate sentence was appropriate to further emphasise the protection of the community.

62After receiving the report of Dr Best, the Crown submits that that is still open as a sentencing option.  However, the Crown position recognises that you remain very unwell.  Furthermore, the Crown does not challenge Mr Anderson's submission that the Verdins principles, that is limbs one, three, four and five of Verdins, have been enlivened in the sentence process.  I agree that they have been.

63Because the issue arose during the first hearing of this matter as to whether an appropriate disposition may be the imposition of a combination sentence with a community corrections order, I ordered your assessment for a community corrections order.

64The community corrections order assessment dated 17 June 2020 noted that you have contravened all previous community correction orders that have been imposed upon you, that you are unable to provide details of any support network into which you could be received upon your release into the community, and you appeared to provide inconsistent information in respect to details of your substance abuse.  In those circumstances you were assessed as unsuitable to be considered for any further community corrections order.

65Mr Anderson at today's hearing pressed me for a combination sentence.  He submits that the Corrections assessment that you gave inconsistent information about substance abuse is wrong.  I tend to agree with that submission.  Thereafter he conceded that you have no existing prosocial networks to which you can point and that you remain acutely unwell, but nevertheless I shouldn't impose an order in the knowledge that these matters will be addressed before you could be released into the community.

66Overall, I respectfully disagree with Mr Anderson's submission.  Although I have the power to do so, I do not consider it is appropriate to impose a combination sentence with a community corrections order over the assessment of Corrections. First, you have contravened all three previous orders.  Second, you have no support network into which you could be released.  And third, you remain very ill.

67The next issue is:  how should I apply the stated objective of the serious offender legislation, being protection of the community in this case when you clearly suffer from and suffered at the time of your offending a serious mental illness?

68The law says that where an offender is sentenced as a 'serious offender', the court must regard protection of the community as the principal sentencing purpose, despite the existence of a mental impairment or illness.  But, as always, although community protection may be a key sentencing consideration, a court should not focus on one consideration to the exclusion of other relevant factors:  I refer to the case of Ashton v R [2010] VSCA 329, and have also had regard to the cases of DPP v Moore [2009]) VSCA 264, [64] and
R v Imadonmwonyi [26], on achieving the appropriate balance in the sentencing process.

69In determining the appropriate balance in the sentencing process, I have decided that it is necessary to moderate significantly the principles of general deterrence and specific deterrence.  But I must give weight to protection of the community.

70Accordingly, the sentences of the court are as follows:

·n Charge 1, you are convicted and sentenced to 15 months' imprisonment.  You are declared to be a serious arson offender and I order that fact be noted in the records of the court. 

·On Charges 2-8, you are convicted and sentenced to 15 months' imprisonment on each charge.

71I order that three months of the sentence on Charges 2, 3, 4, 5, 6, 7 and 8 be served cumulatively on Charge 1 and on each other.

72Now on my maths that leads to a total effective sentence of 36 months' imprisonment.  I order that you serve a non-parole period of 24 months' imprisonment before you are eligible for parole.

73I declare the period of 571 days pre-sentence detention reckoned as already served.

74But for the plea of guilty I would have imposed a sentence of 5 ½ years with 4 years to serve.  I note that the imposition of a 6AAA declaration is somewhat academic, given the illness under which you suffer.

‑ ‑ ‑