Director of Public Prosecutions v Norman
[2022] VCC 2237
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01266
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROYDIN NORMAN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 September 2022 and 2, 25, 30 November and 1 December 2022 | |
DATE OF SENTENCE: | 14 December 2022 | |
CASE MAY BE CITED AS: | DPP v Norman | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2237 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One rolled-up charge of arson and one rolled-up charge of persistent contravention of a Family Violence Intervention Order.
S6AAA declaration: 4 years 9 months imprisonment with a non-parole period of 3 years.
Legislation Cited: Sentencing Act 1991; Migration Act (Commonwealth) 1958; Mental Health Act 2014
Cases Cited:The Queen v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; DPP v O’Neill [2015] VSCA 325; Guden v The Queen (2010) 28 VR 288.
Sentence: 39 months imprisonment, with a non-parole period of 26 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Cookson | Solicitor for Public Prosecutions |
| For the Accused | Ms T Skvortsova | SKLQ Law |
HER HONOUR:
1Roydin Norman, you have pleaded guilty to one charge of arson, which carries a maximum penalty of 15 years’ imprisonment, and one charge of persistent contravention of a Family Violence Intervention Order, which carries a maximum penalty of five years’ imprisonment or 6,000 penalty units.
2Both of the charges are rolled up charges. Charge 1 involves two victims, namely, the owner of the house which you destroyed in the arson, and your former wife who was the tenant of the house and lost most of her personal possessions. Charge 2 involves some 8 separate breaches of a Family Violence Intervention Order by telephoning your former wife between 28 February 2022 and 31 March 2022. The circumstances of your offending are summarised in the Amended Prosecution Opening Upon Plea dated 12 September 2022. [1]
[1]Exhibit “A”
3The background to your offending is that you and the primary victim, your ex-partner, had been in a relationship spanning some 26 years, dating back to when both of you were in your teens. Together, you have five children, who at the relevant time ranged in age from approximately 3 years to 21 years. Over the period of 26 years, you and your ex-partner had separated on a number of occasions and had last separated in May 2021, and remained separated for the five months leading up to you committing the offence of arson on 8 October 2021.
4At the time of the arson, your ex-partner was renting a property at Nilufa Court, Hampton Park (“the Nilfula Court property”) from the secondary victim, Mr Dung Tran. Mr Tran had purchased that property in 2016 or 2017 for $525,000. You had lived there with your ex-partner and your children until the separation in May 2021, following which you moved to live at a property which you rented at Cheryl Court, Hampton Park.
5Despite the separation, you continued to go to the Nilufa Court property, where your ex-partner was living with the children, at various times of the day and night and would bang on windows until someone answered the door. On one occasion, this occurred at 3.00am. As a result of such conduct and other family violence-related allegations, an application was made to the Dandenong Magistrates’ Court by your ex-partner on 12 August 2021 for a Family Violence Intervention Order. It would appear than an interim order was granted on 20 September 2021, but, for reasons not made apparent to the court, this order had not been served upon you by the time you committed the arson.
6In mid to late September, you attended the Nilufa Court property where your ex-partner was present with her friend, Kevin Jefferson. You commenced banging on the garage door, screaming “Get out here motherfucker” and “Nice Mercedes” (a reference to Mr Jefferson’s Mercedes vehicle which was parked in the driveway). Mr Jefferson raised the garage door. You stated, “I thought you’d be a little Māori boy”, and Mr Jefferson responded, “You have a nice lady and kids inside there mate, you need to work on some things”. Mr Jefferson shook hands with you, and you left.
7Subsequently, on 7 October 2021, after your ex-partner had been caring for the five children for seven consecutive days due to COVID quarantine, there were arguments between your ex-partner and the children. Your daughter phoned you and asked if the children could stay with you due to the arguments, and arrangements were made for the older four children to do so. Subsequently, you saw your ex-partner at the local shops and criticised her parenting, stating that she only cared about her boyfriends.
8Later, the youngest child (aged three), asked to go to your home to join the other children. When your ex-partner attended at your residence, driving a Holden Commodore sedan, which was registered in your name but had been used by her since the separation, you criticised her for having a can of Woodstock Bourbon in the vehicle, and told her to get out of the car and leave the key and go and see her boyfriend to pick her up. In the course of an argument between the two of you, her phone was broken.
9Your ex-partner drove the car back to the Nilufa Court property and telephoned Mr Jefferson, as she was distressed. Mr Jefferson arrived there about 7.58pm. You later arrived at that address at 8:42pm. Upon seeing Mr Jefferson’s vehicle, you began to rev your vehicle loudly in the street. You then got out and walked towards the garage. You asked for the Holden Commodore Sedan and stated that you were there to collect some clothing for the children. As your ex-partner gathered together some clothing, you said through the security door “Is that your boyfriend? Tell him to come out here because I’m gonna smash him”. You also made negative comments concerning your ex-partner’s parenting. You then drove away and parked your vehicle around the corner in Oakland Drive.
10At 8.49pm, you returned to the Nilufa Court property and began pacing up and down and making noise. You began shouting for Mr Jefferson to “Get the fuck out here”. You then used a key in order to take possession of the Holden Commodore Sedan, which your ex-partner had parked on the lawn outside that property. When you saw Mr Jefferson come outside, you reversed that vehicle towards the street, but you twice accelerated towards him before braking, and then drove off at a fast rate of speed. Your ex-partner and Mr Jefferson left the address in Mr Jefferson’s vehicle, as she felt it was unsafe for her to remain at the Nilufa Court address on her own.
11CCTV footage at 5.03am showed you leaving the area of your residence in your work vehicle, a white coloured 2014 Mitsubishi Triton Utility with a registration number of 1CQ 3RY. Shortly afterwards, at 5.06am, that vehicle was captured on CCTV pulling up in the driveway of the Nilufa Court property. You are seen to get out of your vehicle and walk around the porch area, and then return to your vehicle, and then leave at 5.07am. You arrived back at your own residence at 5.09am. Subsequently, CCTV footage captured you driving your work vehicle, again, as you returned to the Nilufa Court property at 6.45am. You are seen to open the side gate and walk up the southern side of the home, which leads to the backyard. Once inside, you gained access to your ex partner’s bedroom and lit a fire in the vicinity of her bed. You then returned to your vehicle and left Nilufa Court at 6.48am. By 6.56am, CCTV footage showed smoke coming from the Nilufa Court property and, by 7.30am, flames were breaching the exterior of the house.[2]
[2] Exhibit “B”
12Neighbours called emergency services and by 8:48am the fire was under control, but the house and most of the personal items belonging to your ex-partner and the children inside were destroyed. Your ex-partner and the children had to seek emergency accommodation. The house was insured to the value of $539,400, and the contents were insured to the value of $17,000. The destruction of the house and the personal items of your ex-partner comprise the rolled-up charge of arson, Charge 1.
13At 7.59am on 7 October 2021 police attended your residence and you feigned shock upon being told by them about the fire at your ex-partner’s house. You were later arrested. The interim Family Violence Intervention Order was served upon you, and you participated in a record of interview. In the interview, you claimed that you had only gone to the house to pick up bags of clothes for your daughter; that you did not cause a fire at all; that you had just gone to the door and knocked on it, and when your ex-partner was not home you just left and did not go into the backyard. You denied that there was any issue between you and your ex-partner, and claimed that you were the victim of family violence.
14It was only after police indicated that you had been seen approaching the address at 6.46am that you admitted lighting the fire, claiming that you suffer from a mental illness and did not mean for it to happen like this. You claimed that you heard voices sometimes and are meant to be on medication, but do not take it. You had stated that you had a week off work because of what has been happening in your head, and that you wanted to see a psychiatrist. You said you did not know why you committed the arson.
15Following your arrest, you were remanded in custody.
16On 13 December 2021, the Dandenong Magistrates’ Court granted a final Family Violence Intervention Order against you, which was served upon you on 21 December 2021. The order contained conditions preventing you from contacting or communicating with your ex-partner or from getting another person to do anything that you were prohibited from doing under the order.
17Between 17 November 2021 and 27 February 2022, you made several calls from prison to your daughter, effectively indicating to her that her mother needed to drop the allegations that she had made in her statement to police, to tell police that they were lies regarding the family violence, and that the intervention orders “need to go”. I here interpolate that the prosecution opening makes it clear that these calls are relied upon to provide context for other calls with or in the presence of your ex-partner which provide the basis for Charge 2, Persistent Contravention of a Family Violence Intervention Order.
18Between 28 February 2022 and 22 March 2022, you made a series of phone calls from prison to your daughter, in circumstances where it was ensured that your ex-partner was present. You used a ruse of referring to her as “Auntie” rather than using her name, as she listened to you and responded. On other occasions, you spoke directly to your ex-partner but used a ruse of referring to her in the third person. The calls included two made on 28 February 2022, and four made on 22 March 2022. Subsequently, on 28 March, 30 March and 31 March 2022, you telephoned a mobile phone number in the name of “Shelby Namana” and spoke to your ex-partner. All of the calls between 28 February and 31 March 2022 were in contravention of the Family Violence Intervention Order, and form the basis of the rolled up charge of Persistent Contravention of a Family Violence Order, Charge 2.
19You are presently aged 39 years, having been born in August 1983. You come before the court with a number of prior convictions in New Zealand, where you were born and lived until sometime in 2014, when you moved to Australia.
20Your criminal history filed with the Court dates back to 29 October 2001, when you were 18 years of age. From then until 13 February 2014, you were before various courts on 25 occasions for dishonesty offences, including several burglaries and theft; some six charges of driving whilst exceeding the blood alcohol level; two charges of driving whilst disqualified; wilfully damaging property; and some six other occasions of disorderly or other antisocial behaviour; cultivating cannabis; possessing methylamphetamine; breaching bail and various other orders, namely, home detention and community work orders; two charges of assaulting a female in a family violence situation, and one charge of speaking threateningly in a family violence situation. The later charges were conceded by your counsel to be ones in which your ex-partner had been the victim.
21In a plea on your behalf by Ms Skvortsova, the court was told that you came from a dysfunctional family, had left home at age 11 and lived on the streets and “the subsequent lack of familial support brought [you] into the care and custody of criminal associates. It therefore had profound and lasting consequences on [your] life trajectory – this is evident from the persistent criminal history [he] accrued in New Zealand.”[3] Your counsel also submitted that your prejudicial childhood and instability had “contributed to the subsequent development of Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD)[4]”. She stated that “[your] psychiatric state deteriorated drastically in the month leading up to the arson offending, resulting in a mandatory inpatient admission”.[5] In support of the nexus between your mental health and this offending, your counsel relied upon the report of Ms Marese Bovenkerk, forensic psychologist, dated 5 September 2022.[6]
[3]Outline of defence submissions dated 9 September 2022 marked for identification 1 (MFI-1), page 3 paragraph 22
[4] Ibid paragraph 24
[5] Ibid paragraph 3
[6] Exhibit “1”
22In paragraphs 20 to 27 of her report, Ms Bovenkerk[7] referred to you having reported “a prejudicial childhood in which [you] described [your] father as being physically abusive and [your] mother as being constantly under the influence of alcohol and illicit substances”, witnessing family violence between your mother and father, being beaten by your father, your father being regularly incarcerated throughout your childhood and your mother having “different boyfriends each week” who would physically assault you, being sexually abused by a male relative “a couple of times” and ultimately running away from home when you were 11 or 12 years old and staying with and frequently moving between friends’ houses.[8]
[7]Exhibit “1”
[8]Exhibit “1”, pages 2 to 3, paragraphs 20 to 27
23Ms Bovenkerk reported that you had “disclosed a history of antisocial peers stating that [you] joined the ‘Mongrel mob’ when [you] were aged 11 and continued gang membership up until the age of 25.”[9] She went on to record:
“64. When questioned in relation to his criminal history, Mr Norman reported that the majority of his offending as an adolescent occurred in the context of his gang membership and that he was forced to ‘take the wrap (sic)’ for offences that he did not commit due to his young age.
65. Regarding his family violence charges, Mr Norman stated that he could not remember the circumstances surrounding the charges. He indicated on one occasion his ex-partner attacked him and he consequently ‘pushed her out of the way’. He expressed that his ex-partner had made false allegations against him in the past, though conceded that he was ‘not perfect’”.[10]
[9]Exhibit “1”, page 5, paragraph 50
[10] Ibid page 6, paragraphs 64 to 65
24When I inquired of your counsel as to the nature of the “Mongrel mob”, she simply stated that they had been a criminal gang and declined to elaborate. Hence, the court is unaware of whether these associates, who are said to have so adversely impacted upon you, were a group of disaffected teenagers like yourself, who engaged in picking pockets or shop lifting or drug trafficking, or a more sinister criminal organisation involved in very serious organised crime. When I asked Ms Skvortsova whether she could obtain instructions upon the nature of this group, she stated that she “may”, but no further information was provided to the court.
25Reliance was placed upon Ms Bovenkerk’s opinion that your prejudicial childhood and gang association, coupled with your early introduction and exposure to alcohol and other drugs, resulted in you relying upon such substances as a primary means of coping and regulating your emotions and that it is likely that your brain structures would have been affected over time. These factors, she opined, contributed to the development of you suffering Post-traumatic Stress Disorder and Major Depressive Disorder. Specifically, Ms Bovenkerk had taken a history from you that prior to the offending you suffered a deterioration in your mental state. Your relationship with your ex-partner had ended 12 months earlier and both you and she had commenced new relationships. Also you described stress associated with your role as workshop supervisor and told her that you began to drink heavily and relapse into substance use and began using methylamphetamine, amphetamine and cannabis which increased in the leadup to the offence.
26You reported to Ms Bovenkerk that “Father’s Day 2021 had been a significant trigger in destabilising [your] mental health.” You told her that you “had been reflecting on your relationship with [your] own father and had been consuming increasingly more drugs and alcohol drinking a 10 pack every day” and “’all this baggage started to come up’ in respect of [your] childhood. You stated that you would “puff on a pipe … drink more to try and keep it down.” You told her that you had “ongoing symptoms of low mood, racing thoughts, feeling overwhelmed by [your] psychosocial stressors and flashbacks regarding [your] childhood” You told her that you had “reached breaking point” and, ultimately, on the evening before Father’s Day you attempted suicide “by tying a rope around [your] neck which later snapped”. You had rung Lifeline for assistance and, later, police and ambulance arrived and you were “admitted to a psychiatric ward for approximately four or five days.”[11]
[11]Exhibit “1”, page 6, paragraphs 67 to 72
27Ms Bovenkerk went on to state “Documentation from Monash Health confirms that Mr Norman was placed on an Inpatient Assessment Order after telephoning Lifeline and reporting plans to hang himself. Mr Norman was suspected of overdosing on 40 Panadol tablets and two ropes with a noose tied were found at his premises. He was placed on the Assessment Order on 06/09/2021 and the Order was revoked on 08/09/2021. I note that the documentation highlights Mr Norman’s tendency to minimise his symptoms and that he declined pharmacological intervention.”[12] She went on to note, “during his admission, Mr Norman was diagnosed with depression, anxiety and alcohol abuse. He was discharged with community follow-up, however, appears that he did not engage”.[13]
[12]Exhibit “1”, page 7, paragraph 73
[13] Ibid page 7, paragraph 75.
28In the light of the above and the fact that it was evident from Ms Bovenkerk’s report that she had informed herself from the Monash Health medical records in order to write her report, I asked to be provided with those records, as well as other documents which had been made available to her for the purpose of preparing her report and assigned them as part of Exhibit 8 at the plea hearing. In spite of the fact that the records had been supplied to and relied upon by Ms Bovenkerk for the purpose of forming her opinion and that opinion was relied upon, Ms Skvortsova told the court that she “did not rely upon the Monash Health medical records”. This was reiterated in a follow up email to the court from your solicitor, Mr David Barrese, dated 5 October 2022 noting, amongst other things that “defence do not seek to rely on the subpoenaed hospital records, noting that they have been captured in the description of Exhibit 8.”[14] In response to this, the prosecution indicated that it would to tender the hospital records. At a mention held on 2 November 2022 this occurred and the records became a prosecution exhibit.[15] The prosecutor, Mr Cookson, also indicated that he wished Ms Bovenkerk to attend for cross-examination.
[14]Email forming part of Exhibit “8”
[15]Exhibit C
29Ms Bovenkerk gave oral evidence via videolink for periods of approximately one, hour or perhaps slightly longer, on 25 and 30 November, and 1 December 2022. Ms Bovenkerk’s curriculum vitae was produced and tendered as part of Exhibit “1”.
30She orally told the court that she obtained registration as a psychologist towards the middle of 2015 and obtained her forensic practice endorsement in 2019. In the past, she had worked with some offenders who perpetrated family violence, but had not undergone any specific training with respect to assessing family violence offenders. Between September 2019 and November 2021 she had worked as a psychologist in a practice where she had prepared forensic reports in relation to civil matters such as TAC, WorkCover, National Disability Insurance, the Department of Veterans’ Affairs, and the Employer Assistance Program, but all of these had been of a non-criminal nature. She commenced employment with the Ferrari Consulting Group in November last year, and this was the first time that her practice had involved her writing forensic reports relating to criminal offending.
31Ms Bovenkerk assessed you on two occasions, having spent a total of three hours with you. It was apparent from the letter from your instructing solicitor to her that her report produced following those assessments would be tendered at the plea hearing to assist the sentencing court to understand your mental functioning leading up to your offending and your current mental state.[16]
[16]Letter from David Barrese & Associates to Ms Bovenkerk dated 11 August 2022 (“your solicitor’s letter”), Exhibit “8”
32In paragraph 18 of her report, Ms Bovenkerk listed the material which had been provided to her. It became evident that the transcripts of the calls made by you from prison which form the basis of charge 2 had been provided to her, but the context calls leading up to and interspersed with those calls had not been supplied to her. It also became evident that she did not have access to the Monash Health records (Exhibit “C”) until after she had consulted with you on the two occasions, and had not had any opportunity to raise anything in the records with you. Further, at no stage prior to providing her report had Ms Bovenkerk been supplied with the factual basis for either Charges 1 or 2. The prosecution summary tendered as Exhibit “A” contained a statement of facts which had been agreed between the parties subsequent to Ms Bovenkerk’s report, which is dated 5 September 2022.
33At no time had your solicitor made available to Ms Bovenkerk any police summaries of the two charges. In his letter of instructions, he provided only a very minimalised account of each offence, as follows:
“We ask that you proceed on the following basis:
· For the arson, that Mr Norman attended at the residential home of his ex-partner(Nilufa Court, Hampton Park) in the early morning of 8 October 2021, and set fire within the master bedroom of the house (the specific mode or location is unknown). It is not alleged that he intended for the extent of the damage that ultimately ensued to the entire residence and the contents therein. It is accepted that he knew that there were no occupants at the property at that time.
· For the persistent breach, that Mr Norman, in the course of speaking with other family members, spoke directly to his ex-partner over the phone, whilst in custody in Fulham. Relevant transcripts of those calls are provided to you. The index intervention order was served on him in December 2021.”[17]
[17]Page 2 of letter from letter to Ferrari Consulting Group from David Barrese and Associates, dated 11 August 2022, part of Exhibit “g”.
34Yours solicitor’s letter also instructed Ms Bovenkerk that:
“Mr Norman’s mental health declined acutely after the middle of 2021. He began experiencing suicidal ideations. In September 2021, he contacted Lifeline as a result of his suicide attempts. He was admitted to a psychiatric unit, where he spent a number of days. It appears that police were also involved and his transfer under the powers in s351 of the Mental Health Act 2014…
We are instructed that Mr Norman experienced significant depressive symptoms leading up to 7 October 2021.
Mr Norman’s phone analysis also reveals the following searches:
· “suicide methods” (23 August 2021)
· “easy ways to commit suicide” (23 August 2021)
· “how to kill myself easily” (5 September 2021)”
35Your solicitor’s letter also noted your instructions that you were:
“becoming increasingly concerned and preoccupied with [your] ex‑partner’s drug use during her care of the children”,
and went on to state that
“The evidence at committal was that Mr Norman and his ex‑partner had had a number of verbal arguments during 7 October 2021 as to his suspicions and concerns about her drug and alcohol use, and their consequences on her parenting of their children.”
36Nowhere in your solicitor’s letter was there any mention of your rumination on Father’s Day 2021 about the relationship you had with your own father or any flashbacks, nightmares, poor sleep, or avoidance-related strategies as attempts to cope with your untreated trauma as mentioned in Ms Bovenkerk’s report.
37Being unaware of the agreed summary of facts which sets out the factual matrix of each of the charges, Ms Bovenkerk accepted your self-report concerning your Father’s Day ruminations and that you “attempted suicide by tying a rope around [your] neck, which later snapped”. I here note this somewhat inconsistent with the records made upon your presentation to Dandenong Hospital. These record that you had contacted Lifeline with suicidal ideation, saying that you were going to hang yourself. Police were sent on a welfare check and found two ropes tied in a noose, which you stated you did not use, but had taken “5 x 500mg paracetamol” at 8am because you had a hangover and were nauseated. You denied taking more than that, but police found 2 packets of empty paracetamol “= 48 x 500mg”, with 8 lying loose on a table.[18] Ms Bovenkerk seems to have accepted your version of your offending that you had returned to your ex-partner’s home in order to collect your daughter’s clothing and, knowing that no one was home, you went inside the house to the main bedroom where you “lit a cigarette and threw it on the bed” with the intention of damaging and burning the mattress, commenting “that was ours, that’s where we slept”. You told her that this had happened around 3am and you had returned to the house around 7am to see smoke, but it was “too late to do anything” and you panicked and left. You told her that you were remorseful for your behaviour and that “I didn’t mean for this to happen”. Ms Bovenkerk also operated on the basis of your version of your offending on the persistent breach of the FIVO charge, namely that “that while talking to [your] children, your ex-partner would ‘jump on the phone’. [You] stated that after such a long-term relationship it was difficult not to communicate directly with each other.”
[18]Exhibit “C”, History at initial assessment in Emergency Department at Dandenong Hospital at 12:36 on 5 September 2021, p68.
38On the basis of this minimised account of your offending, and being oblivious to the context calls in which you had made it clear to your daughter that you wanted your ex-partner to withdraw her statement relating to domestic violence charges, and also on the basis of your self-reported symptoms, Ms Bovenkerk accepted that Father’s Day 2021 had been a significant trigger in destabilising your mental health. She considered that your prejudicial childhood and early life experiences had contributed to your developing a Post-Traumatic Stress Disorder and Major Depressive Disorder. This, together with the ending of your relationship with your ex-partner and stress in your role as Workshop Supervisor caused you to drink heavily and relapse into illicit substance use and lead to you feeling overwhelmed and you “attempted suicide by tying a rope around [your] neck, which later snapped”. She concluded that your “actions appear reflective of impulsivity, poor problem-solving skills, and lack of consequential thinking, in the background of a significant destabilisation in [your] mental state.”[19] She stated that “[your] untreated mental health has played a significant underlying role in [your] offending, as well as having perpetuated [your] substance use as a method of coping.”[20]
[19]Exhibit “1”, page 12, paragraph 119
[20]Ibid, paragraph 124
39I consider that Ms Bovenkerk’s opinion is undermined by having accepted your minimised and incorrect version of events and the fact that she was unaware of the context of domestic violence leading up to the granting of the Family Violence Intervention Order (which you told her you could not recall) or of the obvious jealous concern manifested by you about your ex-partner’s relationship with Mr Jefferson. The latter had been the subject of repeated remarks by you, as well as aggressive words and actions towards Mr Jefferson, particularly on the day prior to the commission of the arson.
40I received the impression when Ms Bovenkerk was being cross-examined that she had not looked closely at the Monash Health records prior to writing her report. Had she done so, I cannot comprehend how she could regard paragraph 73 of her report as an accurate summary of those records, which comprise 138 pages of notes, with many additional pages of results of various tests and forms completed under the Mental Health Act and follow up notes after you were discharged (a total in excess of 200 pages). She seems to have regarded the fact that you were diagnosed with depression and anxiety at hospital and the fact that your admission was close to the date upon which Father’s Day occurs each year as sufficient to be consistent with your history given to her and her diagnoses, without looking at the specific symptoms noted in the hospital records or their aetiology. She has not engaged in any significant analysis as to why any symptoms you suffered would lead you to offend against your former partner in the way you did.
41The Monash Health records do not contain any mention of your alleged triggering ruminations on Father’s Day, or any of your alleged Post-Traumatic Stress Disorder symptoms of ongoing flashbacks, nightmare or avoidance strategies. Contrary to the history taken by Ms Bovenkerk, the Monash Health records note a denial of illicit drug use. The records also contain multiple mentions by you of your distress over the break-up of your relationship with your ex-partner and the fact that she had moved on with a new partner.
42Your initial assessment in the Emergency Department notes “recent relationship breakdown and domestic violence”.[21] The following day it is recorded “discussed about events of yesterday, states that he was informed by his ex that she has moved on and found a new partner, this made him feel upset and actively suicidal… Admits to not coping with living alone and felt highly suicidal when he realised that his ex had moved on yesterday… prominent themes of hopelessness and helplessness discussing about current stressors and feeling rejected by ex-partner”.[22]
[21] Exhibit “C”, page 68
[22] Exhibit “C”, pages 81 – 82.
43In cross-examination, a number of inconsistencies between the Monash records and the history recorded in her report were pointed out to Ms Bovenkerk. Notwithstanding those inconsistencies, she did not resile from her opinion that her very brief summary of the records was a fair and accurate summary, which I find not to be so.
44A number of Ms Bovenkerk’s answers in cross-examination appeared adversarial. She sought to justify the lack of mention of any childhood abuse or sexual abuse or trauma in the Monash Health notes by stating that it was not uncommon for people to minimise their past childhood experiences especially in a hospital setting when they are under an assessment order as it is quite distressing, yet she had not had any opportunity to ask you why, over the space of the three days that you were at the hospital, you apparently did not mention those stressors yet mentioned other stressors. She was asked in cross-examination about her not having obtained any history of you hearing voices (which also was absent from the history in the Monash Health records). This question related to your answers to Questions 461 through to 469 in your Record of Interview in which you had told police that you suffers from a mental illness, and had been in a “psych ward”, and that you “hear voices sometimes” and “that’s why I got put in the psych ward”. Ms Bovenkerk focused upon your answer to Question 470, where you stated that you did not know whether “the voices” had told you to do what you did: “It’s not a voice, it’s just – things that go through my head”; She interpreted this as some sort of “internal self-talk”, rather than hearing voices, even though you had mentioned the voices in the context that you suffer from a mental illness and that was why you had been in a psych ward.
45Ms Bovenkerk was referred to the previously quoted section of the Monash Records in which you are recorded as stating that you felt highly suicidal when you realised that your ex had moved on, with prominent themes of hopelessness and helplessness. Ms Bovenkerk did not make what would appear to have been an obvious concession that your suicidal feelings were consistent with your ex-partner moving on, stating “that is just how he was presenting during the assessment”.
46Ms Bovenkerk was taken to a conversation with your daughter, recorded by Jennifer Hannon, a medical officer at Monash Health on 7 September 2021, where she is reported as stating that you are guarded when she asks you about your mental state, but she was “surprised + + when ambulance called” and a note was made that no history of deliberate self-harm or dramatic mood change had been observed by her. In particular, Ms Bovenkerk was asked about the note “Main stressor at present is breakdown of relationship with his partner (her mother), currently going through a separation which was difficult for him.” Ms Bovenkerk claimed that it wasn’t clear to her whether what was noted was the medical officer’s impression or the information had come from his 21 year old daughter herself, in spite of it being tolerably clear from the note that the information in it had come from speaking with your daughter[23] and, indeed, was consistent with history recorded from yourself that this was a significant stressor.
[23] Exhibit “C”, page 88
47It was put to Ms Bovenkerk in cross-examination that, at one point in the Monash Records you are noted as having said that you “often [had] a façade in order to protect yourself. [You] attributed this to [your] upbringing in which your parents were neglectful and did not provide any reinforcement to you”, but there was no mention of parental abuse. Ms Bovenkerk responded that it depended upon the author’s interpretation of what constituted neglect.[24] It was drawn to Ms Bovenkerk’s attention that in the Monash Records you denied illicit drug use and she simply stated that they focussed on the alcohol use.
[24] Exhibit “C”, page 109
48Ultimately Ms Bovenkerk did concede that the inconsistencies, particularly relating to the alleged triggering of you having ruminated about your relationship with your father, should have been put in her report. Later in cross-examination, she stated that she did not wish to highlight every single inconsistency due to time constraints and not wanting her report to be too long.
49Ms Bovenkerk conceded in cross-examination that she had no information from you about the obvious displeasure you had expressed towards your ex-partner’s boyfriend. Also, she had accepted your version of events that you had lit the fire at 3am when you went to collect your daughter’s clothing, even though the latter was inconsistent with the letter of instruction from your solicitor which had noted that you had returned to your ex-partner’s house “a couple of hours later (at 6:50am), when it is agreed the fire was lit”[25]. She stated that she did not ask about this inconsistency as she was not an investigator, and she accepted that she should normally have asked a clarifying question in the light of such an inconsistency, but her assessment was limited by time. She accepted that her obligations under the Practice Note meant that she should have reported concerns about the reliability of any facts reported by you, but she did not.
[25] Part of Exhibit “8”: Letter from David Barrese and Associates, op cit, p3.
50Ms Bovenkerk stated in her oral evidence that she did not have the specifics of the allegations relating to the arson and family violence which are before the court. She stated that it was only when she was preparing to give her oral evidence that she realised that she should have had such information. In answer to one question from Mr Cookson, the prosecutor, she agreed that, if the description of the offending was different from what she had understood, then she would have to reassess you. However, when asked by Ms Skvortsova in re-examination whether there were any matters that had been put to her in cross-examination that would cause her to reassess her opinion, she stated “No.” These answers appear to be inconsistent. The latter was a surprising answer, particularly given the number of matters of which Ms Bovenkerk was either unaware, or had not focussed upon, which had led to her erroneously assessing your offending as “impulsive”. In any event, in answer to a question from myself, Ms Bovenkerk stated that she was not saying that your mental health issues caused you to commit the offending, but were “an underlying contribution”.
51It would appear from the Monash Health records that your inconsistent history about what had occurred prior to your admission lead to an impression that you were minimising your symptoms and resulted in an order under the Mental Health Act that you remain as an inpatient for assessment. Both on 6 and 7 September 2021 it was noted that, notwithstanding that blood test confirmed significant levels of paracetamol, you disputed that you had overdosed and medical staff were concerned that you remained at a high risk for suicide.[26]
[26]Mental health Act 2014 Section 30 Assessment Orders dated 6 and 7 October 2021 page 4 and 5 of “Exported Patient Record” generated 12 August 2022.
52However, the following day the order was revoked and you were discharged. The revocation for the inpatient assessment order at 11:15am on 8 September 2021 signed by Em Jay Tan (following an assessment by Ms Bridgett Agnoleto, psychologist[27]) at 10:30am stated
“Roydin is clinically improved and no longer agitated nor experiencing suicidal ideation. Low risk of harm to self and others. He is wanting to follow up in community for ongoing treatment. He is motivated to keep alcohol use within safe limits and engage in treatment with a psychologist.”[28]
[27]Exhibit “C”, page 108, notes of Bridget Agnoleto, Psychologist, 10:39 on 8 September 2022.
[28]Exhibit “C” page 3 pf “Exported Patient Record” generated 12 August 2022.
53Upon being discharged on 8 September 2021, a mental health care plan was provided for referral to First Health and you were to be followed up with Packenham CATT. It was noted by way of background that you drank alcohol regularly and had advised the author of the mental health care plan that you just drank alcohol on weekends, but had earlier stated that you drank daily. It was noted that you denied recreational substances, including stimulants, cannabis and psychedelics. It was noted that you declined antidepressant medication and were to be followed up by your GP and that you were living with your 21-year old daughter. A follow up call to you from the hospital on the day after discharge noted that you were back at work and were feeling much better. Subsequent voice messages and SMS’s from hospital staff to your phone number on 10, 11 and 12 September 2021 were not responded by you. A home visit was made to your address on 13 September at 6pm, but nobody was at home and a card was left asking you to contact the CATT. As no response was received, an SMS from was sent to you advising that you had been discharged from CATT and a note was made that this was “due to non-engagement.”[29]
[29]Exhibit “C” page 9 to page 15 Exported Patient Records.
54There is no evidence before the court that you ever followed up with the mental health care plan or saw a general practitioner, or did anything to address either your excessive alcohol use or your anxiety and depression prior to committing the offence of arson one month later on 7 October 2021. Indeed, you returned to work the day after being discharged from the hospital. A reference from Korey Graham, Production Manager at your place of work dated 9 September 2022[30] and from a fellow employee, Lee Solomon[31], speak in glowing terms of your enthusiasm, hard work and efficiency in your job. They make no mention of you demonstrating any deficiencies in your temperament or work performance leading up to this offending.
[30]Exhibit “4”
[31]Exhibit “4”
55Mr Norman, my impression is that you are a person who does not deal well with the “truth”:
·It was noted in the Monash Health records that you were an unreliable historian.[32]
·In your record of interview you denied the offending until police got to their 459th question and alerted you to the fact that you had been caught on CCTV footage arriving at the Nilufa Court property at 6:46am and being at the side gate at 6:47am.
·Upon learning that you had been caught on CCTV, you admitted that you committed the arson, but claimed that you did not know how you had lit the fire because you suffer from a mental illness and had been in a psych ward. You stated that you hear voices sometimes and that was why you got put in the psych ward.[33] As mentioned previously, in the histories recorded in the Monash Health record, there is no reference to you claiming to hear voices. Nor did Ms Bovenkerk note any such history, except that you had experienced auditory and visual hallucinations as an 11-year-old when you began using “magic mushrooms” and also described increased paranoia while using methamphetamine.”[34]
·You told police in answer to question 503 that you were meant to be on medication, but didn’t take it. In fact you refused offers of anti-depressant medication when you were discharged from hospital and there is no evidence that it had been prescribed to you elsewhere. [35]
·You told Ms Bovenkerk that you had seen a counsellor when you were 16 years old and in your mid-twenties but “were not completely truthful and forthcoming during the session due to concerns about being judged.”[36]
·Your history to Ms Bovenkerk that on the evening before Father’s Day 2021 you “attempted suicide by tying a rope around [your] neck, which later snapped”[37] would appear to be an exaggeration in the light of police reports and also the Monash Health Records.
·Your history to Ms Bovenkerk concerning you use of methamphetamine, amphetamines and cannabis is also inconsistent with you denial of use of illicit substances noted in the Monash Health Records.
·You gave Ms Bovenkerk a sanitised version of the arson, claiming that it had been an impulsive action when you went to your ex-partner’s house about 3am to collect clothing for your daughter. This is inconsistent with that CCTV footage which shows that you did not enter ex-partner’s house on the first occasion, upon which you attended on 8 October 2021. Moreover, when you did enter the house at the time of committing the arson, it was a very prompt visit of 2 to 3 minutes. The CCTV footage shows you striding promptly away from the house towards you work utility whilst not carrying clothing or anything else. You are seen to then rapidly reverse into the opposite driveway and leave the scene.[38]
[32]Exhibit “3” page 69
[33]Record of Interview made on 8 October 2021, Depositions 572 to 640, see Q and A 459 to 468 at pages 57 to 58 of the interview
[34]Exhibit “1”, page 5, paragraph 55
[35] Ibid, Q and A 502.
[36]Exhibit “1”, page 4, paragraph 38
[37]Ibid, paragraph 63
[38]Exhibit “B”.
56The multiple lies in your Record of Interview and inconsistencies in the other material before the court, make it difficult for me to be satisfied on the balance of probabilities, concerning the nature and extent of any physical and/or sexual abuse during your upbringing, and the alleged consequences of such childhood trauma by way of major Depressive Disorder and Post-Traumatic Stress Disorder as diagnosed by Ms Bovenkerk.
57Ms Skvortsova submitted that the lack of mention of childhood physical and sexual abuse and post-traumatic symptoms in the Monash Health records had not caused Ms Bovenkerk to alter her opinion. Ms Skvortsova urged that you were “so crook” that you had to be “sectioned” and it did not matter what “label” was placed upon your diagnosis or what the reason had been for your inpatient treatment. She submitted that what mattered was that you were so unwell that you had attempted suicide and the Court should be satisfied on the balance of probabilities that principles 1‑4 in The Queen v Verdins[39] had application.
[39] [2007] VSCA 62
58Mr Cookson, on behalf of the prosecution, took issue with the application of these principles in Verdins. He submitted that, although there was evidence that you had suffered depression and anxiety and had been abusing alcohol so that you developed suicidal ideation or made a suicide attempt on 5 September, the Court should have doubts about whether you had ever suffered Post-Traumatic Stress Disorder, and the defence had not established the necessary nexus between any mental impairment and your offending. Ms Bovenkerk’s opinion could not support that nexus because she simply did not have the agreed factual basis of the offending available to her. Further, there were significant inconsistencies between the history she took and what was recorded in the Monash Health records, and she had not had the opportunity to raise those matters with you.
59Whilst it is true that the existence of a particular diagnostic label is not determinative of whether the principles in Verdins apply, there must be a proper evidentiary basis to establish a mental impairment with symptoms of a nature and severity so as to impact upon the mental capacity of the offender, whether at the time of offending or at the date of sentence or both.
60In your case, it was sought to be established, on the balance of probabilities, that at the time of offending, you were suffering mental ill health by way of anxiety, depression and Post-Traumatic Stress Disorder. It is clear that not only must a mental impairment be established, but, in order to enliven limbs 1‑4 of Verdins, you must establish that the mental impairment affected your ability to appreciate the wrongfulness of the conduct or obscured your intent to commit the offences, or impaired your ability to make calm and rational choices or to think clearly at the time of the offence.[40] Further, “if the mental impairment existed at the time of offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.”[41] The Court of Appeal has emphasised that there must be an established evidentiary basis for reducing an offender’s moral culpability or the need for general and specific deterrence. That requires “a rigorous evaluation of the evidence” and “expert evidence should be scrutinised with care” to see whether it is adequate to support the opinion expressed and to establish the relevant nexus with the offending in question.[42]
[40]DPP v O’Neill [2015] VSCA 325, page 415, paragraph 75
[41]Ibid, paragraph 74
[42]Ibid, paragraphs 80 and 81
61After weighing up the material before the court, I find that I cannot be satisfied on the balance of probabilities of the veracity of the history recorded by Ms Bovenkerk and relied upon by your counsel that on Father’s Day 2021 your reflecting on the relationship with your own father and all “the baggage” from your childhood was a significant trigger in destabilising your mental health with lead to your attempting suicide and being admitted to Dandenong Hospital. Moreover, as pointed out by Mr Cookson, your history to Ms Bovenkerk that Father’s Day this year (2022) did not provoke any such reflection or adverse impact seems somewhat incongruous. It should not be lost sight of that the only mention of this alleged “significant destabiliser” of your mental health was made to a forensic psychologist whom you knew would be producing a report for your upcoming plea hearing and to whom you were dismissive about the allegations of domestic violence and made no mention of any anger or resentment you felt concerning your ex-partner having re-partnered.
62Although I accept that you were suffering symptoms of depression and feeling low, and were experiencing suicidal ideation on 5 September 2021, I do not accept that you were suffering from Post-Traumatic Stress symptoms referable to your relationship with your father or any childhood abuse, either physical or sexual. Nor do I consider that there was evidence that you were suffering anxiety and depression of a magnitude following your discharge from Monash Health so as to attract principles 1‑4 in Verdins case. As you previously stated, you refused pharmacological intervention and returned to work immediately and, as far as the court has been made aware, sought no further medical or psychological assistance.
63Ms Bovenkerk’s opinion, at its highest, puts any mental health impairment as an underlying contribution, rather than a direct cause of your offending. In any event, her opinion cannot be afforded significant weight in the light of her not being appraised of the factual basis of the offending to which you have pleaded guilty. I find that Ms Bovenkerk’s opinion does not satisfy the rigorous test of causation between any mental health condition that you may have been suffering and the commission of the offences. I am satisfied beyond reasonable doubt that the arson was not an impulsive act by you, but an act of angry revenge against your ex-partner who had formed a new relationship of which you were jealous.
64The breakdown in your relationship with your ex-partner and the fact that she had a new partner are repeatedly mentioned in the Monash Health records as a cause for your distress even though you, too, had re-partnered. I am satisfied that this was the primary triggering cause for you drinking heavily and relapsing into substance use, which you described to Ms Bovenkerk as comprising methylamphetamine and amphetamine and cannabis (even though you denied any illicit drug history when seen at Monash Health), although it should be acknowledged that you had also mentioned work and financial stress to both hospital staff and Ms Bovenkerk.
65Your jealous rage over your ex-partner and her apparent relationship with Mr Kevin Jefferson had manifested itself on multiple occasions prior to the date of the arson. As detailed in the prosecution opening, you had attended the Nilufa Court property in mid to late September and aggressively banged on the garage door urging Mr Jefferson to “get out here mother fucker”. Although Mr Jefferson managed to calm you down and you shook hands with him, it is plain that your jealous rage had not abated because, on 7 October 2021, the day prior to the arson you criticised your ex-partner’s parenting and told her she “only cared about her boyfriends”. Later that day, your ex-partner dropped your youngest child around to your place and you told her to return the Holden Commodore car of which she had had the use since you separated. You expressed concern about her drinking and driving and told her to “get out of the car, leave the key and go see your boyfriend to pick you up.” This was followed up later that evening by you again attending the Nilufa Court property where you saw Mr Jefferson’s vehicle parked outside. On that occasion, you called through the security door to your ex-partner “Is that your boyfriend, tell him to come out here because I'm going to smash him.” After driving away from the address, you then returned a short time later, yelling to Mr Jefferson “Kevin get the fuck out here”. When Mr Jefferson did ultimately exit from the property you aggressively accelerated towards him and braked on two occasions before ultimately driving off at a fast rate of speed.
66You told the psychologist, Bridget Angeleto at Monash Health that “your parents were neglectful and did not provide any form of reinforcement to you”. I accept that as a relevant adverse background factor. The fact that you and your ex-partner had your first child when you were only 15 years of age, by which stage you had apparently left your parent’s home, does indicate a background of disadvantage which I take into account. However, your counsel did not explain to the court how it was that child protection services in New Zealand were not involved when you left home (allegedly at the age of 11 years) or the nature of the “criminal gang” who allegedly became your family or any particular adversity associated with that save for asserting that you “took the rap”, at times, for the offending of others, which was unspecified.
67You have 5 children and needed to work to support them, which you apparently found stressful in a new supervisory role. I accept that would have been a factor to add to your anxiety and low mood at the time of offending and note that there is a reference in the Monash Health Records to you being some four to five days behind in your rent.[43] I take that into account as a relevant part of your personal circumstances, however, these matters can neither explain or justify your serious offence of arson, which I have found to be an act of jealous revenge towards your ex-partner.
[43]Exhibit “C” page 61, notes of Ashleigh Sanders, social worker, 16:36 on 8 September 2021
68As far as the charge of persistent contravention of a Family Violence Order is concerned, very little was said on your behalf, save for your counsel’s submission in paragraph 10 of her written submissions, that “The breach of the IVO is confined to 5 calls made over a 5 week period, in the context where Mr Norman and his ex-partner have been in a 20 years relationship, and engaged in regular contact even after their separation. There were no threats contained in the calls.”[44]
[44]Outline of Plea Submissions 9 September 2022, MFI-I page 2, paragraph 10
69You and your ex-partner met when you were only in your early teens and there had been multiple separations over the years of your relationship, which clearly had more than its fair share of ups and downs. However, it is plain that back in New Zealand you had a history of family violence towards your ex-partner. Prior to your offending here in Australia, her concerns were such that by 12 August of 2021 she had made an application for an Interim Intervention Order. This had been granted on 20 September 2021 albeit that it was not served upon you until after the arson on 7 October 2021. As best I can glean, you and your ex-parnter had a longstanding relationship which was dysfunctional. Your counsel stated that at the committal hearing your ex-partner had admitted that she had physically pushed you on occasions. However, you seemed to be abusive, controlling and manipulative in your behaviour. You had already destroyed the roof over your ex-partner’s head and all of her possessions, but you still spoke about her in a derogatory way to your daughter in the context phone calls. Your attitude is apparent from the dictatorial language in the context calls about what you stated your ex-partner “needs” to do concerning her statement to police relating her allegations of violence by you and your attempts to disguise the fact that you were speaking to your ex-partner in contravention of the Family Violence Intervention order even after your solicitor had apparently communicated to you that you were in breach of the order by contacting her via the prison telephone service.[45]
[45]Exhibit A, paragraph 50 and 51.
70You had committed a very serious offence of arson and been served with a Final Order in a Family Violence Intervention Order. In contravention of that order, you persistently made calls to your daughter knowing that your ex-partner would be listening and, at times, spoke to her directly under the guise “auntie” and through ringing a telephone number in the name of a third party, Shelby Namana. Your ex-partner, despite having said that she loves you, ultimately, told you that she had had enough of your behaviour. On the 12th of March she stated “yeah, I love you but you can get fucked… because I lost everything because of you… you did this to me – you… There’s an intervention order… You’ve gotta stay away from me, hey”. You tell her that you love her and she responds “I know, but you had too much chances… And you’re still trying to put me through shit”. That perhaps sums up how fed up she was with your behaviour.
71Mr Norman, it is well accepted that an arson committed for the purpose of revenge is an aggravating factor in formulating sentence. In DPP v Derby,[46] Kellam AJA summarised the relevant case law relating to arson and observed that “Regrettably, it is far from uncommon that one party in a domestic, or other relationship, … takes out their anger, resentment and frustration upon the other party by destruction of property. Those who do so, particularly by fire, should be under no illusion other than that they will face salutary punishment.”[47]
[46][2007] VSCA 92
[47]Ibid, paragraph 46
72In subsequent authorities, there is a theme that a motivation of revenge is commonly seen to increase moral culpability and also to enliven the need for community protection and deterrence. In their submissions, both counsel have referred to sentences given in other cases of arson. It is trite to say that no two cases are identical, but I have had regard to other sentencing authorities as yardsticks. Although there is no victim impact statement from your ex-partner, it is plain that she lost all of her personal possessions in the fire and that she and the children had to seek emergency accommodation. This is a devastating state of affairs for any person. To commit a criminal act which deprives a person of the security of a place to call home and to reduce them to someone without any material possessions, so that they become bereft like a refugee, is a very unrestrained, vindictive, anti-social crime. Although when speaking with Ms Bovenkerk you expressed remorse relating to as the possessions of your children having been lost in the fire, I am not satisfied that you are remorseful in relation to the impact upon your ex-partner. It is high-handed and concerning behaviour, also, when one considers that the home in which she was living was not owned by her but by another person. The fact that it was insured simply shifts the loss from that person to an insurance company.
73Whilst I accept that your earlier attendance at the property at 5.03am meant that you were confident that there were no persons present in the house, and that would have been confirmed when you later briefly went inside and lit the fire, there were neighbouring properties which were potentially at risk. By 7.30am, flames were breaching the exterior of the house, and an adjacent neighbour, who saw the smoke and was in fear that the fire would spread to his home, woke his children to get them out of the house and out of harm’s way.[48] Further, in the CCTV footage an obviously concerned neighbour from across the street is seen knocking on the door of Nilufa Court Property as smoke can be seen in the atmosphere.[49]
[48]Paragraphs 27‑28 of Exhibit “A”
[49] Exhibit “B”
74The value of the property destroyed was $539,400 and the contents of your ex-partner were insured for $17,000. That the arson was to some extent premeditated, as indicated by your having made an earlier visit to the house and then returned to it to commit the act, as well as it being an act of revenge, adds to your moral culpability for such offending.
75Your behaviour in committing the arson, is that of an immature person who was so angry and vengeful as to be incapable of appropriate emotional regulation and proper regard for the consequences of your actions upon others. Your offending in persistently breaching the Family Violence Intervention Order shows that you have little regard for the law, particularly given that you continued to offend even after your solicitor had advised you that you were in breach. You referred to that fact while continuing to make another call breaching the order.[50] The context calls show that you are a manipulative person and the ruses of referring to your ex-partner as auntie or in the third person show you to be cunning. The context calls also demonstrate an extent of preplanning in terms of ensuring that your ex-partner would be contactable and listening to what you had to say or, in fact, would get on the phone herself. The calls are of concern because already your ex-partner had been so concerned about your aggressive behaviour that she had taken out an Intervention Order. By the time you made the calls which are the subject of Charge 2, you had been served with that order and cavalierly disregarded it. Even though you were in custody, she was still not safeguarded from your demands.
[50] Paragraph 51 of Exhibit “A”
76Unfortunately, family violence is far too common in our community, and where Intervention Orders are made, it is imperative that the courts send a message to the community that the disregard of such orders by those against whom they are made will not be tolerated and just punishment will be imposed. As with the arson, I am not satisfied that you have remorse in relation to breaching the order. As with the arson, you minimised your offending when speaking with Ms Bovenkerk by claiming that while talking to your children, your ex-partner would “jump on the phone”. This is clearly inconsistent with your preplanning to ensure that your daughter arranged for your ex-partner to be present when you made the calls which are the subject of the charge.
77In sentencing you, I take into account the following matters in your favour:
(i)You pleaded guilty to the charges in July 2022 following the second day of a contested committal after which your ex-partner, your daughter, and an arson expert, Mr Kelleher, had been cross-examined. Your counsel maintained that it had not been a “wasted committal” because some other charges (the nature of which I am unaware) were withdrawn. The evidence against you in relation to both the arson and the persistent breach of the Family Violence Intervention Order was powerful. Your counsel conceded that you had not offered to plead to either of those charges prior to the committal. This was so even though, in the call to your ex-partner on 22 March 2022, you claimed that you were “already owning” the arson charge. I have already indicated I find a lack of remorse relating to your pleas. However, they hold utilitarian value in having saved the time and cost of a trial and that value is enhanced in accordance with the principles in Worboyes v The Queen,[51] as there was ongoing disruption to criminal trials due to participants contracting COVID even in July this year. The fact that you did not consume court time with running a trial meant that that time was able to be accommodated in helping to deal with the backlog of criminal trials which had built up during the severe lockdown restrictions imposed over the previous two years.
(ii)Although you plainly have a number of prior convictions in New Zealand, following your relocation to Australia in 2014, you have not been before a court for criminal offending.
(iii)You have a good work history. I have already referred to the reference from your employer and a fellow employee[52] attesting to your reliability and good work ethic. I here note that your employer confirmed that you had commenced work with Steelfinne Fabrications Pty Ltd on 24 August 2016 and worked on a permanent fulltime basis until 1 February 2022, by which stage you held the position of workshop foreman.
(iv)You apparently have been a good father to your children. In an undated letter to the Court from you,[53] you state that you love them with all your heart and are very close to them. A letter from your oldest daughter, attests to you being a good provider and a good father to her and her siblings.[54] These sentiments are confirmed by your other daughter, in her reference. She speaks of you always having been there for her and her siblings and that you are a good, kind father with a big heart, who only wants the best for his family.[55] I note that notwithstanding your separation from their mother, there was an agreement for you to co-parent the children without any need for a court order.
(v)In your letter to the Court, you state that, whilst in custody, you have been doing everything you can to better yourself by engaging in drug and alcohol counselling and getting assistance to manage your emotions, as well as exercising and undertaking yoga and meditation.[56] Tendered as Exhibit “3” were a number of certificates relating to short courses involving education concerning illicit drug use (ice and cannabis) and an alcohol awareness program and two statements of results from the Kangan Institute relating to occupational health and safety in the work environment generally and in the construction industry, and also in controlling traffic. Perhaps your time in custody has caused you to reflect upon your psychological makeup and try to do better. Certainly, you seem to recognise that you need to become a better person and a better role model for your children.
(vi)It was submitted on your behalf that, as you are a citizen of New Zealand, a sentence of 12 months’ imprisonment will attract mandatory cancellation of your visa pursuant to s501 of the Migration Act (Commonwealth) which will result in you being deported to New Zealand. Your counsel submitted that this will result in permanent separation from your children, all of whom reside in Australia. She also asserted that you had left New Zealand in order to dissociate yourself from past criminal associates.
I have rejected your counsel’s submission that a combination sentence of less than 12 months imprisonment together with a Community Correction Order is within range for this serious offending. The sentence I intend to impose will attract cancellation of your visa subject to the discretion of the minister. Whilst it is not for the Court to speculate upon what executive action may or may not take place, your deportation must be considered a real risk.
Although there is no material to support your counsel’s submission that you have been cooperating with New Zealand authorities in relation to your past criminal associates in that jurisdiction,[57] a Court can consider the very considerable chance that you will be deported as a form of extra curial punishment.[58] I acknowledge that this is particularly so given that all of your children, to whom you are close, reside in Australia. You have lived here for some 7 years prior to the offending. You were well-established in stable employment. Further, I acknowledge that your time in custody will be more onerous than it is for others due to your anxiety about the prospect of future deportation. Although I have not found there to be a causal nexus between your anxiety and depression noted in the Monash Health records and the offending, this mental health state, in combination with your undisputed devotion to your children, make this aspect of extra curial punishment by potential deportation an important one in your case.
(vii)I acknowledge that, generally speaking, where an offender like you does suffer depression and anxiety, albeit not of a magnitude to enliven principles 1‑4 of Verdins, that a term of imprisonment will be more burdensome than for a prisoner who does not suffer such mental health issues.
(viii)I acknowledge that, since being taken into custody on 8 October 2021, at times, the COVID‑19 pandemic has necessitated the imposition of a more onerous regime upon prisoners. This has included an initial period in isolation, reduced out of cell time, a lack of contact visits, and reduced availability of programs. You are entitled to have the more onerous nature of imprisonment because of those factors taken into account as a mitigatory factor in sentencing you.
[51][2021] VSCA 169
[52]Exhibits “4” and “5” respectively
[53]Exhibit “2”
[54]Exhibit “6”
[55]Exhibit “7”
[56]Exhibit “2”
[57]Outline of plea submissions on behalf of the defence dated 9 September 2022, MFI‑1, paragraph 50(b)
[58]Guden v The Queen (2010) 28 VR 288, 294, paragraph 25
78I find it difficult to assess your prospects of rehabilitation. You have a criminal history which includes relevant prior matters by way of wilful damage (family violence), manually assaulting a female (family violence) and speaking threateningly (family violence). You also have a history of dishonesty offences, anti-social behaviour, multiple drink-driving offences and drug offences. Although you have pleaded guilty to the offences for which I must sentence you, I find that you have not accepted full responsibility for them by reason of the minimisation which is evident in the history that you gave to Ms Bovenkerk as recently as August this year. As previously commented, the lead-up to the offending and the offending itself shows immaturity and a lack of ability to control your emotions, coupled with a domineering attitude in relation to your former wife. It seems to me that you have very little insight into your own psychological state. To set the home of someone else on fire as an act of revenge is extreme behaviour showing scant regard for the security and welfare of that person, even though you knew nobody was at home. I consider that you probably need some psychological treatment, particularly for emotional regulation, and also treatment for substance abuse. Whilst you may have embarked on some preliminary steps of rehabilitation, I consider that you have a long way to go. For these reasons, I am guarded concerning your prospects of rehabilitation.
79In all of the circumstances there is no appropriate sentence other than a term of imprisonment involving a head sentence and non-parole period.
80On Charge 1, arson, which is a rolled-up charge involving two victims, both your ex-partner and the owner of the house, you are convicted and sentenced to be imprisoned for a period of two years and 6 months.
81On Charge 2, persistent contravention of a Family Violence Order, which is a rolled‑up charge involving some eight conversations between 28 February and 31 March 2022, you are convicted and sentenced to be imprisoned for a period of nine months.
82I direct that the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
83The total effective sentence is 39 months imprisonment. I direct that you serve a period of 26 months before becoming eligible for parole.
84I declare a period of pre-sentence detention of 432 days to be time reckoned as already served under the sentence imposed this day.
85Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence would have been four years and nine months with a non-parole period of three years.
86Pursuant to s86 of the Sentencing Act I order that you pay compensation of $426,899.38 AAI LIMITED trading as AAMI.
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