Director of Public Prosecutions v Nicholas

[2019] VCC 1502

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-01257

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELISE NICHOLAS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bendigo
DATE OF HEARING:	12 September 2019
DATE OF SENTENCE:	17 September 2019
CASE MAY BE CITED AS:	DPP v Nicholas
MEDIUM NEUTRAL CITATION:	[2019] VCC 1502

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Mr N. Rolfe	Cahills Barristers and Solicitors

HIS HONOUR: 

1Elise Nicholas, you have pleaded guilty to one charge of arson and one charge of breaching an intervention order.  Those crimes carry maximum penalties of 15 years and five years respectively.  You are now 36 years of age.  You pleaded guilty at a reasonable opportunity and you must get the utilitarian benefit of that plea of guilty.  I accept for these purposes that you have indicated appropriate remorse since the offending occurred. 

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  And that order is made and handed down.

3You do have prior convictions but nothing approaching the seriousness of this.  Those prior convictions are of limited assistance other than they confirm your instructions to your counsel and the material provided, that you have a serious alcohol problem.  It is clear to me on all this material that your offending occurs when intoxicated and that has had a significant bearing on the sentence which I am to impose. 

4A summary of the offending is that you were 35 years of age and at the time you were in a relationship with a Mr Benjamin Pierce who was 42 years old at the time of the offending.  You had two children together, one born in 2012 and one born in 2014.  At the time, the family was living at 9 Sibley Place in Strathdale.  The statements of your partner say that since he has known you, you had been an alcoholic and reported that:

'Unfortunately she is the type who has one drink, then is unable to stop.  She gets very violent when she drinks.  She smashes windows, smashes doors and furniture and gets very negatively outspoken towards the girls'.

5He said that you were not violent towards the two daughters but were sometimes violent towards him.  This is not a question of me trying to delve into what the relationship was about.  It was clearly dysfunctional and ended up the way it did.  On 24 December 2018, you were at the house and you caused damage and injury to Mr Pierce.  As a result of all that, and I do not have to go into the details, an intervention order was taken out and you were told not to go near the place.

6Approximately a week later, the two of you attended court and Mr Pierce asked the prosecutor to vary it, so that you could stay there till you found somewhere else to go.  The conditions of that order were that you not drink alcohol or use drugs.  Not long after moving back into the house, you again began to drink and would stay away for a couple of days and nights at a time when you were, 'Right', you would come back to stay.

7On 8 February 2019, you were still living at that address in Sibley Place.  You walked the two children to school, which was about a kilometre away.  During the course of that day, it is clear that you began drinking and that is confirmed by Mr Pierce.  Whether he had been drinking as well or not, I have no idea and it does not really matter in any event.  I say that simply because of some of the material that has been put before me.

8The situation was that you had been drinking with a man called Frank.  You left one of the children at his house after you had become angry at Mr Pierce and you then returned home.  Prior to doing that, you said to Mr Pierce - he referred to you as saying, 'Me to, telling me to slit my own throat or I should get someone else to do it'.  You were clearly intoxicated and to a degree, out of control.  You went home with the daughter, Abigail.  In the kitchen she saw you tear up some mail into three pieces and set fire to it with a cigarette lighter.  You then put the fire out.

9You then went out into the shed, into the backyard and returned with a container of petrol.  You went into Mr Pierce's bedroom and poured the petrol all over his bed and set it on fire.  Your daughter was present as you did this.  She observed you leave the petrol container on the bed.  She saw the smoke coming and then she said, 'Runned' out of Dad's room quickly.  You told her to get out of the house.  She said she did and she ran away.  That gives rise to the charge of arson and as well the charge of contravention of a family violence order. The house was effectively destroyed resulting in approximately $160,000 damage.

10The circumstances of it are that whilst there is property damage involved in all this, you are not charged with reckless endangerment, so I do not sentence you for that.  But the fact of the matter is, to have used petrol in that way, it is extremely fortunate that the result was not a massive explosion. That would have killed both you and your daughter.  Having had some forensic experience with the use of petrol by arsonists, I understand that. I suspect the window was what saved that room from being blown totally apart with you and your daughter in it. It is a serious example of arson.

11Insofar as the intervention order breach is concerned, as I indicated during the course of the plea, it is wound up in the arson itself and I am not going to aggravate two different crimes by referring to it twice.  The sentence I impose for that breach, which is the causing people to have fear will be totally concurrent with the sentence I impose on the actual arson.  After the event, you were seen walking away down the driveway in what was described as a calm manner.

12A neighbour approached you and said that your house was on fire.  You just laughed.  It was at that point that your daughter Abigail ran away screaming, 'Mummy lit the mail on fire with a lighter'.  She was clearly very distressed and very frightened by what she had witnessed.  You are very lucky the consequences were not much greater, as I have already said.  Another neighbour saw smoke coming from the place, and approached you.  She then saw Abigail running towards her and Abigail was hysterical.

13Abigail said that, 'Mum burnt the house'.  That witness then went and sat with Abigail under a tree.  You arrived and did not seem worried at all.  The witness then said to Abigail, 'It might not be your house'.  You replied, 'Yes, it is.  It just went out the window, like a woof'.  You then walked off.  You then subsequently said to a further person that he had got his justice, he deserved it and you told that witness not to tell anybody or she would be next.

14When finally arrested and interviewed by the police, you said that you had vague memories of it as you were, 'Pissed as a cricket'.  It has been suggested in some of the material that you did not know what you were doing or something along those lines.  I do not accept that.  It is clear from this that it was a deliberate, a conscious act.  It may well have been something that you would not have done unless intoxicated but that is no excuse.  You remembered telling your daughter to leave, so my view would be that you have a far greater memory of it, certainly at that time than what you profess to have now.

15I also accept that if you had been drinking heavily on that day and then gone to sleep that your memory may have been damaged by that.  I do not see that there are any matters in mitigation in terms of the state that you were in at the time.  It is self-inflicted in my view.    As I indicated before, you do have serious problems but you only offend when drunk and that can be of no excuse.  Tendered was a victim impact statement from your partner who says that the effect on the girls has been continuing.  They are worried another fire happening, that the house could be burnt again.

16He describes his own medical condition which may or may not have pre-existed all this.  But certainly any possessions that he had have been lost and he has now left this area and living elsewhere.  The effects of the fire have been catastrophic.  And, again, for the third time, it is very lucky they were not even more catastrophic.  It is a serious example of arson as I have said.  It calls for the application of general and specific deterrence as well as denunciation.  Obviously there must be an appropriate punishment.

17In your situation where it has got to the level of this sort of conduct occurring when intoxicated, there has to be a significant element of community protection in all this as well and that played a large part in the, very helpful if I might say so, discussion I had with your counsel the other day about what the appropriate disposition should be.  The situation is that it has to be an active custodial sentence and has to be of significant proportions.  The question here was whether it could be a custodial sentence to be followed by a community corrections order or whether it should be a custodial sentence with a non-parole period.

18After some discussion counsel for the Crown very helpfully indicated to me that the limitations that apply to combination sentences in other matters do not apply here.  But I think it is the situation where, in your circumstances it is a question of not drinking, is the No.1 aspect of it.  You have serious other problems which I will obviously take into account but they are not what causes you to offend.  My view is that in this situation there will clearly be opportunities available to you, whether it be on parole, and that is not a matter for me or within the gaol system to address your difficulties with alcohol and I think that the circumstances of your release should be determined by people who have been treating you not by me trying to guess at some future date.

19One of the factors I have taken into account, and someone can correct me if I am wrong about all this, is that a breach of parole has instant ramifications.  A breach of a community corrections order can take months.  If you started to drink again, not only your partner and children but other people would be put at risk as well.  And I think that community protection outrides any advantage that you may get from having a date certain of being released.  In coming to that conclusion that the appropriate sentence is one of custody with a non-parole period, your counsel after discussion withdrew the suggestion of a community order.  So, I intend to sentence on that basis for the reasons that I have outlined.

20Tendered on your behalf were a report from Ms Cidoni, which talks about possibilities rather than probabilities and also results of courses and tests that you have done in prison.  It is clear that you are having an attempt to rehabilitate yourself within the gaol system.  I do not think I need to go into great detail of your background.  As I have indicated, you are 36 years of age now and your real problem in terms of offending which is what my purpose is, seems clearly comes from alcohol.

21You went into a relationship at a young age with another partner and had a son who is now 14 who is now in the care of DHS but lives with your mother.  You, after that relationship, had a relationship with Mr Pierce as I have now described.  And as I have said, you have got two children.  You, I accept, for the last decade or so have suffered from anxiety and panic attacks.  You say you have a previous diagnosis of bipolar disorder but there is nothing before me which confirms that.  I think that Ms Cidoni is operating on hearsay or at least her report is unclear.

22You do have a low intellectual capacity.  We do not have a final figure for that but it is certainly low and I take that into account.  You do have psychological disturbances.  You have depression, mania and paranoid delusions at times and those are matters that referred to by Ms Cidoni.  I take those matters into account in a sense that it may be more difficult for you in gaol with them.  On the other hand with the non-drinking and matters such as that, it may be of some assistance to you.

23I think it is a situation where, so far as specific deterrence is concerned, it really comes down to you not drinking and what I am going to do is give you an opportunity for parole at a significant earlier time than might otherwise be the case.  The prospects of your rehabilitation are really up to you and what progress you can make and the risk of you reoffending, if you drink, is going to be I think quite high.  If you do not drink, then it is going to be quite low.  They are all matters that only you can deal with.

24I have taken into account all the matters put on your behalf by your counsel and the very sensible submissions he made.  And in the end, it is my view that a custodial sentence of reasonable proportions with an early - potential at least, release date, is the appropriate way to go about all this.  The principles of Verdins are problematic in this situation.  I do not think they apply.  Perhaps circumstances of Muldrock may in terms of intellectual deficit but it is clear to me that you knew what you were doing, you knew it was wrong and you knew your daughter was there and you went ahead with it.

25In any event, taking all those matters into account on Charge 1 of arson, sentenced to be imprisoned for a period of 28 months.  On Charge 2 of the breach of intervention order, sentenced to be imprisoned for six months.  I direct that six months be served wholly concurrently with the sentence imposed upon Charge 1 for the reasons that I have outlined.  There is so much interlapping between the two, that I do not feel confident in trying to delineate.

26That means a total effective sentence of 28 months.  I direct that you serve a minimum term of 14 months before becoming eligible for parole.  So that you understand the significance of that plea of guilty and the benefit that you obtain from it, I say that but for your plea of guilty, in other words if you tried to run a trial on this and lost, I would have sentenced you to be imprisoned for a period of three years and six months with a minimum term of two years and three months.

27I direct that 221 days, I think that is right gentleman ‑ ‑ ‑

28MR CAMERON:  Yes, Your Honour.

29MR ROLFE:  Yes, Your Honour.

30HIS HONOUR:  ‑ ‑ ‑ be reckoned as having been served under this sentence.  No other orders I have to make?

31MR ROLFE:  No, Your Honour.

32MR CAMERON:  No, Your Honour.

33HIS HONOUR:  No, that is all right then.  All right, you can take her now and you can sit at the back Mr Rolfe if you want.

34MR ROLFE:  As Your Honour pleases.  May I be excused?

35HIS HONOUR:  Yes, of course.

36MR ROLFE:  Thank you.

37HIS HONOUR:  Yes, all right, just stand down.

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