Director of Public Prosecutions v Ochien
[2023] VCC 619
•19 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02015
Indictment No. N10308078
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MORISH OCHIEN |
---
JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March & 19 April 2023 |
DATE OF SENTENCE: | 19 April 2023 |
CASE MAY BE CITED AS: | DPP v Ochien |
MEDIUM NEUTRAL CITATION: | [2023] VCC 619 |
REASONS FOR SENTENCE
---
Catchwords: Recklessly cause bushfire x2. Summary offences; commit indictable offence on bail x2. 34 years of age at sentence. Two separate fires lit two days apart in February 2022. Early plea; Worboyes Short criminal history of no relevance; reduced culpability; serious mental health issues; Verdins 1 to 5; disadvantaged background; Bugmy.
Cases Cited: Worboyes v The Queen [2021] VSCA 169, R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581, Bugmy v The Queen [2013] HCA 37; 249 CLR 571, Liam Stanger v The Queen [2021] VSCA 25, Marrah v The Queen [2014] VSCA 119, DPP v Herrmann [2021] VSCA 160, Barnard (a pseudonym) v The Queen [2022] VSCA 42, DPP v Briggs [2016] VCC 1557
Sentence: Total effective sentence: 8 months imprisonment, in combination with a 2 ½ year Community Corrections Order (on 2x recklessly causing bushfire charges): Supervision; Treatment and Rehabilitation conditions: drugs, alcohol, mental health and offending behaviour programs and other special conditions. Summary offences: 7 days imprisonment (aggregate) concurrent.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Fleming | Office of Public Prosecutions |
For the Accused | Ms R. Khan | Ajak & Associates |
HIS HONOUR:
1Morish Ochien, you have pleaded guilty to two charges of recklessly causing a bushfire. You have also pleaded guilty to two related summary offences of committing those indictable offences whilst you were on bail.
2You are 34 years of age and you have a short criminal history which is of no relevance at all to my task.
3You have been in custody since your arrest on 15 February of last year, at the scene of that second fire which you had lit on that day.
4The bushfire offences carry a 15-year maximum prison term. The summary offences carry a three-month maximum prison sentence.
Facts
5The amended summary of prosecution opening for the plea dated 10 March 2023 sets out the agreed facts. This document was read aloud by the prosecutor on the first day of the plea on 23 March and it was marked then as Exhibit A. It refers to photographs which were included within the depositional material. There is no need for the photographs to be separately marked.
6I am going to sentence pursuant to that agreed summary and, for that reason, I will only descend briefly to the facts in these, my sentencing remarks. I note that there is also a statement from the first firefighter to speak to you at the scene of that second fire and that has been separately marked as Exhibit C on the plea. This was a statement from Jessie Collins. Though the parties had it, and in fact it had been referred to by the expert psychiatrist, Dr Fiona Best, in her report, somehow it had failed to find its way into the depositions, and as it spoke of your mental health state at the time, it seemed important that I have an understanding of what it said. So that has been marked as Exhibit C.
7So then to my brief summary of the summary here; that is all it is. Early in the morning, at around 7 am on 13 February last year, you lit five small fires in the Dandenong police paddocks; in the hills above Stud Road, Endeavour Hills. Luckily, witnesses rang Triple 0 and a number of units – there were three – attended and put out the fires. They were at the scene for over three hours. The five fires had, by that point, joined, and they burnt out around 4,700 square metres of grassland and trees. A grey BIC lighter was found at the scene. The summary describes the weather conditions and the burn pattern and behaviour of the fire.
8Two days later, you were at it again in the very same area. A motorist was driving along Stud Road at about 6.25 am and noticed a fire up on the hill, in the same paddocks. He observed a second fire near the main fire. He rang Triple 0. Again, multiple units – this time two – attended. They observed five separate fires. These were far smaller in their area and they were pretty quickly extinguished. Firemen then observed you standing around at the scene. You were approached to obtain details and you admitted that you had in fact lit the fires – and not just those fires, but the earlier fires on 13 February.
9To say that you were behaving strangely would be a significant understatement. There was that additional statement from Jessie Collins, which gives a pretty clear picture of your very strange presentation at the scene.
10Police attended and you were then arrested. Upon a search, a grey BIC lighter was found on your person. You were not fit to be interviewed, as you were behaving erratically. The summary discloses the nature of the investigation into the fires and the exclusion of natural or accidental causes in each case – also, the prevailing weather conditions and the manner in which the fires burnt. Each fire fell within a period of fire danger restrictions.
11You were on a single set of bail at the time. As I have said already, you have been in custody since your arrest on 15 February of last year.
12The summary sets out the chronology of the matter before the courts. So much then for what is a brief summary of the agreed summary, which is marked as Exhibit A. I will sentence pursuant to that more detailed factual statement, as well as the photographs which are referred to and that additional statement that I have mentioned.
Plea in Mitigation
13Your counsel, Ms Khan, relied upon an outline of plea submissions dated
12 April, which replaced the earlier written plea submissions which had been previously filed. The plea was originally to be conducted on 23 March, but it scarcely got out of the blocks on that day. You were arraigned and pleaded guilty, and the prosecutor then opened the matter to the court.14In the early stages of your counsel's plea I asked her a question as to your citizenship status. It is a question I always ask when I have an accused person who has been born overseas. Your counsel told me that you were an Australian citizen. I asked if she was sure of that, given the potential importance of that matter, and she went down to the dock and checked with you and you told her that you were in fact a permanent resident and not an Australian citizen. The matter was then stood down for that to be clarified and it was. You were right; you are not an Australian citizen.
15The plea was adjourned off, nonetheless, owing to the difficulty in your counsel placing before me any details at all of the proposed accommodation in the community, as well as any proposed treatment regime. The matter was then adjourned off to today's date to permit those enquires, as well as to enable
Ms Khan to file a revised set of written submissions. Plainly, there were matters that had to be added, including the issue of the risk of deportation to you.16She filed that new set of written submissions, which, as I say, were dated
12 April, and she relied upon the previously filed psychiatric report from
Dr Fiona Best. Further, there has been a letter filed from Ms Selba-Gondoza Luka from Afri-Aus Care Inc. There was a lengthy document explaining that organisation and what they could offer you. She joined the hearing today by video-link. Also physically in court, we have your sister and also your partner, or ex-partner. Your sister, Josephine, is offering you accommodation down at in Yinnar in the Latrobe Valley.17Ms Khan made submissions as to your personal background and informed the court as to your relationship and drug history. There has been, to some extent, an abbreviation of the plea, because so much of this is referred to in the written materials and there is no need for Ms Khan to simply slavishly go through all that written material.
18She made submissions as to your prospects of rehabilitation and the various sentencing purposes in play in this case, and the weight to be attributed to them. She has made, also, some submissions as to the objective gravity of the offending. She has relied upon the following matters in mitigation:
· Your early guilty plea in the course of the global pandemic;
· The presence of some remorse;
· Your disadvantaged background;
· The application of the first five principles from the case you heard discussed – that is, R v Verdins[1];
· An increased burden arising from the impact of COVID-19 in the period when you have been on remand; also
· The risk of deportation in this case and the impact that that might have upon you.
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
19She argued that it would be open to deal with you by way of a community corrections order without exposing you to any further time in custody. She was urging upon the court the imposition of what is described as a combination type sentence; that is to say a prison term with your immediate release onto a community corrections order.
20She departed from the earlier submission as to the prison component of such an order equating to your pre-sentence detention – presumably, in part, by way of recognition of the significance of a sentence of 12 months or more enlivening the automatic visa cancellation provisions in the Migration Act – but also she argued in recognition of the fact that such a disposition, equating to your time served, would not be a proportionate response. She was arguing that a prison sentence below your existing pre-sentence detention – and, in fact, below 12 months, one, in combination with a suitably conditioned community corrections order, was open in the sound exercise of my discretion.
Prosecution
21The prosecution have prepared some detailed written amended submissions dated 18 April and I have had those marked as Exhibit B. They were uncontroversial. I do not intend to descend to the detail of those written submissions in my reasons. The Crown accepted that the principles from the case of Verdins were engaged here. They conceded that a combination type order was open and have been neutral as to whether or not your release could be immediate. They said, really, that that was a matter for the court.
22Submissions as to penalty, whether made by your counsel or by the prosecutor, are in no way binding upon me. That is because I have to make the decision as to the appropriate sentence in this case. I must have regard to the matters placed before me and I must exercise my sentencing discretion.
Background
23Before dealing with these various submissions, I will turn to your background. I will do that quite briefly, as there really is no utility in my simply restating all that I have been told about you either in the oral presentation of the plea, or in the written materials placed before me. I have no reason at all to doubt what I have been told about you. I act on that material and it is plain to me that there has been significant disadvantage in your life such as to enliven the principles from cases that have been discussed, including the cases of Bugmy,[2] Marrah[3] and Herrmann.[4]
[2]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
[3]Marrah v The Queen [2014] VSCA 119 (“Marrah”)
[4]Director of Public Prosecutions v Herrmann [2021] VSCA 160; 290 A Crim R 110 (“Herrmann”)
24You were born in July of 1988. You are now 34 years of age. You were born in South Sudan. You were one of four children. You never knew your father and you were separated from your mother when you were four years of age. You fled Sudan with your siblings and grandparents when you were about nine or ten and stayed in Uganda for some years. You lived in a refugee camp. Schooling in Sudan had been fragmented. In Uganda it was held within the confines of the refugee camp.
25You moved to Australia when you were about 17 years of age and you had to integrate and become accustomed to what was obviously a very different world. You were reunited with your mother at one point and lived in Noble Park and then Wonthaggi with her. You attempted Year 10 but you found that too difficult. You had engaged in English lessons or courses for about two years.
26Since leaving school you have worked predominantly in unskilled jobs; for instance, in a chicken factory and as a cleaner. You have not worked for some years.
27You have three children aged ten, eight and three. There have been some issues I have been told about in terms of an intervention order, and there have been issues in seeing them – and obviously issues in seeing them in a custodial setting – and those things have been significant in increasing your burden.
28You have had some problematic cannabis and alcohol use over the years – more so cannabis than alcohol, it seems to me – and I was told that you were homeless at the time of these offences; committed, as they were, in February of last year.
29You have a very short criminal history comprising only a couple of appearances. It is of no relevance at all to my task.
30There is much material before me as to your state of mental health at around the time of the offending, or in the aftermath. I mentioned already that firefighter Ms Jessie Collins, who had that very unusual discussion with you at the scene. Indeed, when one thinks about it, it was most unusual for you to even remain at the scene of a fire that you had yourself lit, but you did. You did, and you then swiftly admitted that you were responsible for not just that fire, but also for the one two days earlier. The firefighters were not making allegations against you. They were approaching you, as they thought you were likely to be the person who had actually ‘rung in’ the job. Instead, you admitted lighting the fires and were behaving in a very unusual fashion, asking them to take a photo of your face. You were, plainly, not fit for interview.
31Upon receipt at prison you gave accounts that made it pretty plain that you were in a very poor state of mental health. There is no doubt that your judgment was significantly impaired by your significantly eroded mental health.
32You now seem to be travelling well in custody and that, presumably, is because you are now medicated. I will say more about the mental health issues and the role these things play in the sentencing process, but I have already foreshadowed my acceptance of the Verdins arguments that have been made on your behalf.
Guilty
33I turn then to the matters that have been raised on your behalf in the course of the thorough plea conducted by Ms Khan.
34You have taken very early responsibility for your offending by pleading guilty. You made admissions at the scene and you have pleaded guilty at an early stage. These things have to be adequately recognised.
35As a result of your plea, the time, the cost and the effort of a contested committal hearing in the Magistrates' Court, or a trial up in this court, have been avoided. Witnesses have not been required to give evidence at all. You have, in these ways, facilitated the course of justice.
36Your guilty plea is worthy of extra weight for the reasons set out in the Court of Appeal decision of Worboyes[5] (see also the case of Barnard[6]). There is a large backlog of cases which has arisen in the course of the global pandemic over the last couple of years. Your case really was never part of that backlog. Such delays as were occasioned no doubt were connected up to the necessary investigations of your fitness to plead and/or your mental health and the availability, potentially, of a mental impairment defence. You get the heightened benefit of pleading guilty amidst the global pandemic, so I take these various matters into account in mitigation.
[5]Worboyes v The Queen [2021] VSCA 169
[6]Barnard (a pseudonym) v The Queen [2022] VSCA 42
Remorse
37There are few signs of any expansive remorse here, but that is no doubt a product of your mental health at the time of the offending and the psychosis which no doubt influenced your criminal acts. I do, though, have your early guilty plea. I have some statements in the materials as to the existence of some remorse felt by you. I am prepared to find the existence of some remorse in this case and I take that into account in your favour.
Bugmy
38I have set out some details of your unenviable background and I see no need to set out more of that detail now. You had a very poor start in life. You had the misfortune to be born in a war-torn nation. That has had obvious deep impacts upon your life. You did not know your own father. You were separated from your mother for many years. You had fragmented schooling and you had to move to a refugee camp for a number of years. Then, of course, you had to deal with a total change in language and culture when you came to this country. These things all have a role to play in the trajectory of your life and, in fact, in the development of your mental illness. The expert speaks of that link and how it predisposed you to serious mental illness. I take into account what I judge to be a significantly disadvantaged background pursuant to cases such as Bugmy, Marrah and Herrmann.
39An offender's circumstances and their experience during their childhood and their formative years must be considered in the sentencing process. It is well recognised that the effect of social disadvantage does not diminish with time. A background of significant disadvantage is likely to have profound and lasting consequences, as it no doubt has in your case, so I do take into account your background in a mitigatory fashion, in the way urged upon me by your counsel in her written submissions. I give full weight to your background in the way that that phrase is employed in those cases to which I have referred.
40There is plainly some reduction in your moral culpability over and above that extended by virtue of the Verdins principles, which I am yet to discuss, but which I turn to now.
Verdins
41I am not going to set out slabs of Dr Best's report. I see no need to. She has access to many other materials, including from those who saw you on the day of the last fire and upon your initial reception into prison and beyond. So these are contemporaneous accounts of observations of your state, some of them observations of psychiatrists or psychiatric nurses.
42I have mentioned already the firefighter who saw you on the day. Well, Dr Best refers to some of the other things you are recorded as saying, including your description on 16 February – so this is the day after the last of the offences – that the birds and dogs could talk to you. Justice Health records disclose that you were placed on a security treatment order on 29 March, as you were then refusing treatment that obviously was needed in your case. You were diagnosed with schizophrenia.
43You, in due course, altered your stance, and you were then prepared to take medication. Before then though, you described on 17 March that you had been creating a spiritual fire, and two days later you reported that the government was following you and they wanted you gone. You said that you could control fire with your hands and that you had special powers in this respect. You believed the government was following you and tracking you by drone, and this was because of your knowledge of angels.
44There are many other snippets of information within that very detailed report, but I do not see any need to set them all out. It is as plain as day that many of the principles from the case of Verdins apply to my task. That case deals with the impact upon the sentencing process of mental health conditions existing either at the time of the offence, or the time of sentence – or both, for that matter. As I say, it is as plain as day that many of the principles from that case apply.
45As is always the position, the issue is one of the weight to attach to them. Plainly here, there is a significant reduction in your culpability. You were literally not in your right mind. You were not exercising any appropriate judgment at all. You most likely had a defence of mental impairment open to you, such was your state on the days. You were labouring under delusions or a psychosis. You were disturbed at the scene and beyond, hinting to the firefighter that the reasons for your conduct were classified.
46There were many such statements spelling out the existence of strange and delusional thoughts. There is an obvious relationship or realistic connection between your serious mental illness and these crimes. Though there need not be a causal connection to attract these principles, plainly there is such a connection in this case. Your serious mental illness and reduced mental state drove this offending. Really, the offending made no sense other than to you.
47I do not accept for one moment your account given to Dr Best that you were lighting the fires to keep warm. That flies in the face of everything you said and makes no sense at all. There were five fires lit on each occasion. It was in the middle of summer on mornings where, on one occasion, it was already over 20 degrees.
48I am not, by the way, suggesting that you were deliberately misleading Dr Best. Maybe you were trying to understand, in your medicated state in January of this year, why you might have acted in the way that you did last year. So then there is much more that I could say, and much more I could extract from these reports, but why say it? My reasons will be lengthy enough as is.
49Limb 1 of that case is made out handsomely here; there is significant reduction in your moral culpability. Limb 2 plainly applies. Of course, one must consider your mental health as a matter of real importance in the disposition which is fashioned and the circumstances in which the sentence is served. Likewise, there can be sizeable reduction in the weight given to general and specific deterrence here. You are hardly an ideal vehicle for the full weight to be given to either of those principles. I do accept that prison weighs more heavily upon you, and so the 5th limb has some weight as well. The 6th limb of that case is not relied upon, and that is because it is not made good on the materials.
50There is no material before me suggesting the likelihood of significant deterioration in your mental health in custody. Paradoxically, it is quite the opposite actually; you are in a far better state in custody, owing to the taking of medication. I do, however, accept that limbs 1 to 5 have strong application here. I give them real weight.
51Of course, the condition which enlivens these principles is an enduring one, and this leads to a consideration of your future risk and the need to provide for community protection. It seems to me that your being adequately medicated and under appropriate medical treatment is the best form of protection, but as I observed earlier today, people have a way of finding ways not to take medication, and if that were to happen in your case, the risk of re-offence would plainly increase.
Rehabilitation
52This leads, logically, into a discussion of your future prospects of rehabilitation. Plainly, they will be tied in with your compliance with treatment and your ongoing acceptance of the need for treatment and medication. Also, to a lesser degree, abstinence from illegal drug use or alcohol misuse.
53The signs are presently good. You are willingly engaging in treatment and have been for a significant period. You are taking your medication. That is, however, in a controlled setting.
54You have a criminal history of no relevance to my task, other than the fact that it actually spells out that you have not seriously offended in the past. You have some support now from your sister, who is present in court and is offering you accommodation. You also have support from Afri-AusCare with Ms Selba Luka joining the hearing.
55Your prospects of rehabilitation will be greatly enhanced if you comply with your mental health treatment needs. You must take your medication and it is reasonable to think that there will need to be involvement of a local mental health unit, or at least a GP with a mental health care plan. Your greatest risk of re-offending would lie in your going off your medication. You claim to understand the importance of ongoing treatment and I have no reason to doubt that you are genuine in that stance. Ultimately, I am prepared to accept that there are favourable or good prospects of rehabilitation in this case. So those prospects are good and they are likely to be enhanced by assertive treatment for your schizophrenia.
COVID-19
56I turn then to the issue of COVID-19 and its impact upon you, a prisoner, held in the course of the global pandemic. This was raised, but not really as a matter of any great weight. As a general proposition I am prepared to accept that the COVID-19 virus, and the response to it by those who run the prisons, has increased a prisoner's burden of imprisonment.
57I am sure prison has been a more stressful environment in the time that you have been there. No doubt there has been worry about catching the virus in such a setting where there really is no level of autonomy or control over one's movements. There have been some lockdowns and you would have experienced the increased burden of quarantine or lockdowns on occasions. In fact, you caught the virus and you were, as a result of that, quarantined. There would probably have been the suspension to visiting, and to the full range of courses and programs, at least for some of the time in which you have been held, as you have been held continuously since February of last year.
58Having said all that, on the COVID front, things looked up last year in the community, and also in a prison setting, and personal visits resumed from about March of last year. I am prepared to accept that there has been an increased burden in your case and I take that into account.
Deportation
59I turn now then to the risk of deportation. If a sentence of 12 months imprisonment or more is imposed, your visa would be cancelled. That is because there are automatic visa cancellation provisions within the Migration Act and they are engaged whenever a sentence of greater than 12 months is imposed. I take that issue into account in my ultimate task.
60I believe it is reasonable to proceed on the assumption that your visa would at least be looked at again, or reconsidered, even in the event of a sentence of under 12 months, and as I say it would be automatically cancelled if you were sentenced to 12 months or more. In either setting, you would of course have the opportunity to ask for reconsideration of that decision and, dependent upon who made that decision, should it go against you, there might even be then the ability to take it further before either a court or a tribunal.
61It is extremely difficult for me to make any prediction as to how those matters might play out. There would be a state of real uncertainly in your mind and it could not be easy, given the time you have been a resident of Australia and your lack of any real or meaningful connection to South Sudan. There is just no question that you would have been feeling, and would continue to feel great anxiety about this risk of deportation since I flagged it with my question posed in March of this year. You would be looking down the barrel at the real prospect of losing the opportunity of settling permanently in this country if your visa is cancelled. Well, this country is all you have known since you were 17 years of age, with no real connection to anyone in South Sudan. In fact, you left that country as a nine or 10 year old and spent seven years as a refugee in Uganda.
62These are by no means minor matters. I take these matters into account. As I said on the plea, though, it is not my task to set out to fashion a sentence to fall under the 12-month threshold. It really is not. What I must do is pass the appropriate sentence and if it is over 12 months, so be it. If all the circumstances demand it then of course one imposes a sentence, and cannot retreat from that stance to avoid the operation of the law, but in fashioning my sentence I must have regard to matters of relevance, and these risks are matters I am required to factor into my task. They do go into the mix.
General
63I turn then to some general matters. I am required to take into account a large range of matters, and they include matters such as the maximum penalty as well as the nature, gravity, and the impact of any crimes committed by you.
64It is conceded by your counsel that the indictment offences are of a serious nature. I accept the specified state of mind is one of recklessness and your disordered thought processes and delusional behaviour leads to very sizeable reduction in your moral culpability. I have spoken of that already at length. No one was placed in immediate danger and no structures of any kind were destroyed. You were cooperative. The first fire was a good deal larger than the second, but still nowhere near as large as some that come before the courts. It was occurring in the height of the fire restrictions, but it was early in the morning. Resources were deployed to deal with the fires but they were put out reasonably quickly.
65I have said already that I do not accept the contention set out in the submissions that you were trying to keep warm. Your reason is far less simple than that and, of course, that is because it was bound up in your disordered thought process. Such planning as took place was in the setting of delusional thought processes.
66I do accept that the offending falls at a relatively low level, which is to say a relatively low level example of an inherently serious offence. Fire is, after all, unpredictable, and the speed with which these fires were brought under control was dependent on many variables including the spread of the fire, the speed of that spread, and the speed with which any report was made and then acted upon on. Who, in Australia, needs any reminding of the very serious nature of bushfires, given some of the tragedies we have witnessed, including many where fires have been deliberately lit in the summer months.
67The high level of danger associated with bushfires has been tragically demonstrated over recent years in this country. The maximum sentence reflects the serious potential impact of offending of this nature (see the Court of Appeal decision of Stanger[7]). You were on bail at the time and that is a matter of some aggravation.
[7]Liam Stanger v The Queen [2021] VSCA 25 at [58]
68I am required to consider a number of purposes of sentencing; one of those purposes is your rehabilitation. As I have indicated, those prospects are quite good, I believe. I am required to punish you justly and proportionately for your crimes. I must also denounce your conduct. I must pay some weight to specific deterrence, and by that term I am referring to the need to deter you from offending in the future, however there can be very sizeable moderation owing to your very limited history before the courts and, more importantly, the moderation arising from limb 4 of Verdins.
69General deterrence is in a similar position. It is very significantly moderated here, owing to the mental health issues that I have spoken of. You are hardly an ideal vehicle for the full weight to be given to this sentencing purpose.
70Community protection must be given some weight here. The factors which enliven these Verdins considerations lead to an increased weight being given to community protection. You also fall to be sentenced as a serious arson offender in relation to Charge 2. I will not impose a disproportionate sentence and insofar as the protection of the community is the principal purpose for that sentence imposed in relation to that charge, that still requires me to undergo an assessment of your actual risk. I also have the removal of the presumption of concurrency in relation to that sentence.
71The sentence imposed when you fall to be sentenced as a serious arson offender must be served cumulatively, unless I otherwise order. Finally, there is the prohibition upon aggregation in relation to any prison sentence imposed upon you as a serious arson offender and the need to declare your status in the records of the court. I also have the provisions of s16(3C) of the Sentencing Act, given that the bushfire offences occurred on bail and a further removal of the presumption of concurrency. None of these provisions, though, remove my need to consider the issue of totality of sentence, though totality is modified by the serious offender provisions.
72I must pay regard to current sentencing practices. It is not a single controlling factor. Each of the parties have referred me to a handful of cases, none of them actually comparable. There are differences all over the shop in each direction. Some of the offenders, for example, have prior convictions for arson. Some of the cases referred to by the Crown had fires that burnt out massive areas of bush.
73The cases referred to by your counsel were instances of sentences imposed at my level, by Judges of this Court. They are in no way precedents. They are in no way binding upon me, and what I have to do is sentence you for your crimes. No amount of looking at other examples of other sentences imposed by other judges in other cases, or the sentencing statistics held in relation to this sort of matter, can provide the answer to my sentencing task. Other cases are not precedents and statistics have inherent limitations, and as you heard me say to Ms Khan, there is no such thing as one correct sentence, in any event. Those various cases she took me to had particular sentences that were imposed. A different judge might have imposed a higher or lower sentence and not been wrong to do so.
74I am exercising a sentencing discretion in your case. Having looked at many of the sentences imposed for this crime it strikes me, though, that your offending was unlike much of the offending that has been brought before the court. There is nothing that unusual in a person committing this sort of offence having some mental health or psychological issues in play. In fact, it is pretty common. Sometimes there might be some fascination with fire, or the desire to fight a fire. Sometimes fires are lit to get back at a neighbour or a CFA unit, or even the community, so there might be some aspect of malice at work. Sometimes there is some form of unquenchable desire or pyromania. It strikes me here it is very different. Your mental illness no doubt drove the offending, but not with any malice in play at all. You were engaged in something you believed to be almost a spiritual event and even had some sense that you could control the fire with your hands. Well, of course, you could not. Your successful treatment, and ongoing treatment, will surely significantly reduce any risk.
Totality
75I am required to take into account the principle of totality of sentence. I have taken a last look at the effect of the sentences imposed by the court to ensure that it is commensurate with your overall criminality. The two indictable offences occurred only days apart and they were, each of them, driven by your mental illness. You were on bail at the time.
76Prison is a disposition of last resort. It is conceded that prison must be imposed, but is argued that a combination type order is open here.
77I think we make it 428 days. Do the parties agree with that or not?
78MS KHAN: I do, Your Honour.
79HIS HONOUR: Yes. You have spent, now, 428 days in custody to this point.
80I have had you assessed for a community corrections order and received the report back today, including the mental health report. You are judged to be suitable for a community corrections order. You engaged well with the assessment officer. You are said to have a high general risk of re-offending. The question always for me has been whether I can place you on such an order without imposing further prison time upon you, or must I provide for your future release at some time into the future onto such an order.
81I have reached the view that a combination type sentence is open here. I have had time to think about this from the date when the matter was first before me and since I have received the reports, and since I have received the more recent written submissions of your counsel. The fact that you have spent 428 days in custody does not then dictate that that period is therefore the proportionate sentence which should be imposed, in combination with a community corrections order.
82What I must do is select an appropriate prison component, not just fashion my sentence around the reality of your remand. I make it very plain, I hope, that it is not my task to seek to sail or limbo under that 12-month period to avoid the operation of the automatic visa cancellation provisions. That is not what I am doing. However, as a matter of law, I must impose a just and proportionate sentence, and some of the examples that I have been taken to – and, indeed, one that I have looked at myself; a case of Briggs[8], a decision of Judge Taft – involved sentences falling below, or even well below a year in prison, in combination with a community corrections order, and they did not involve aspects of deportation considerations or have the extent of reduction of culpability as plainly exists in this case.
[8]Director of Public Prosecutions v Briggs [2016] VCC 1557
83Insofar as you have spent more time in custody than the prison component that I will be selecting, well, of course I have regard to that fact in considering totality and the nature of the ongoing community corrections order – the duration of it and the terms of it – so I intend to impose the sentences as follows.
84On Charge 1, I will convict and sentence you to six months' imprisonment. That will be the base sentence, though it will be with the addition of a community corrections order, which I will mention in one moment.
85On Charge 2, I will convict and sentence you to four months' imprisonment. Again, though, there will also be a community corrections order imposed.
86On the two summary offences, so Charges 5 and 6, I convict and sentence you to an aggregate period of seven days' imprisonment.
Cumulation
87I direct that two months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence imposed on Charge 1. I am, in making that order, setting out the extent of concurrency which I otherwise direct under the provisions of s6E of the Sentencing Act. The seven day aggregate term imposed on the Bail Act offences will be served concurrently with all other sentences.
Total Effective Sentence
88You are probably sitting up there trying to work out what all this means, and I apologise for this, but the total effective prison component, therefore, is a period of eight months. In addition though, on Charges 1 and 2, I also intend to release you onto a two and a half year community corrections order which will take effect immediately, because you will be released today.
89I can only release you onto such an order if you consent, so you need to listen very carefully to what I am about to say, Mr Ochien, and I will give you a chance to speak to your counsel in due course.
90While the document is being prepared I will just take you through some of the aspects of the community corrections order that I am going to release you on, Mr Ochien. As I say, I can only put you on this order if you consent to it, so I want you to understand what it all involves. You have had some of these orders in the past by way of fine default orders, and they have not gone too well, it would seem, from the report. You do not want to breach this order. A community corrections order, they all have the same mandatory terms; they apply to everyone who gets them, and they will apply to you.
Mandatory Terms
91The first of those mandatory terms is that you will need to attend at the Morwell Community Corrections Services within two clear working days of your release today. There is a phone number on the document. I think probably give them a ring first, to ask whether you are required to attend in person or not. Since COVID, there have been alterations along the way but you will get this document, it will have all this detailed on it.
Mandatory terms
92You must not commit any other offence for which you could be imprisoned. So you stay out of trouble. If you commit any crime – because virtually every crime these days is punishable by a term of imprisonment, if you commit any crime in the next two and a half years you will breach this order. If you are using for drugs, for instance, you have got to possess drugs to use them, and possession of drugs is generally punishable by a term of imprisonment. So you stay out of trouble, that is pretty straightforward.
93You must report to and receive visits from the Community Corrections officer. You must let them know within two clear working days of changing your address or your job. You do not just get up and leave or move. You let them know, and let them know immediately.
94You must not leave Victoria without first getting permission to do so and you must obey all their lawful instructions. So they are the mandatory terms that apply to you; you breach any of those, you breach this order.
Tailored Conditions
95Then there are the tailored conditions that I apply in your case. I am not going to impose unpaid work. Unpaid work is often used as a form of additional punishment. I do not think it is necessary in this case. You have spent a significant time in custody over and above what I regard as the appropriate prison component, so I am not going to have unpaid work here. I am going to be focusing on your treatment needs.
·Firstly, you will be under supervision for the two and a half years of the order. That is the first of the conditions.
·Secondly, you must undergo assessment and treatment including testing for drug abuse or dependency, as directed.
·You must undergo assessment and treatment including testing for alcohol abuse or dependency, as directed.
·You must undergo any mental health assessment and treatment, and that includes all sorts of other things that are spelt out in the document.
·You must participate in programs or courses that address factors relating to the offending, as directed by the regional manager. Then there are some special conditions here, tailored to your specific needs as I am awake to them.
Special Conditions
·You must continue to engage in counselling with Afri-Aus Care and report to Ms Selba-Gondoza Luka following your release from custody today, and the address is on the document.
·You must engage with the Gippsland Area Mental Health Service within seven days.
·You must attend a GP clinic within 14 days to arrange a mental health care plan and the ongoing treatment of your schizophrenia.
·You must accept any referrals to a community mental health centre or psychiatrist.
·You must continue to take your prescribed medication; and
·You must not use any illegal drugs of dependence.
96So they are the full suite of terms and conditions. If you breach any of them then you breach this order. So if you decide that you are going to go off your medication you will be breaching this order. If you decide that you do not need treatment and you are not going to go and see the doctor and engage with
Afri-Aus Care then you will be in breach of this order.97What you need to do is you need to form a decent relationship with your Correction officer and comply with what they tell you to do. They will have the power to give you directions to attend for mental health treatment, so if you are undergoing treatment at an Area Mental Health Unit it will probably be sufficient for their purposes, I imagine.
98What I have not told you is what happens if you breach this order, all right? If you breach this order that itself involves the commission of an offence. It is punishable by a term of three months' imprisonment, but that is not the real sting. The sting is this. If you breach this order it is brought back to court, and it is brought back to this court. It does not come back to the Magistrates' Court, it comes back to this court, because my name will be on the order. It comes back before me, there are very limited options open to a court and the most commonly exercised power by a court when a person breaches an order is to cancel the order.
99Well, that sounds great, what could be better than cancelling the order? Well, just about anything, because if I cancel the order I then have to re-sentence you. So I would be re-sentencing you for these same two charges, but in a setting where I had given you a chance on a community corrections order and you had breached it. I cannot say exactly what I would do if you breach it, because I would need to do as I have done in this case, and listen to what was said on your behalf, and make some judgment about the nature of the breach, and about the nature of your compliance with the order, but work on the theory that if you breach this order you will be brought back to court and you will most likely wind up with a term of imprisonment with a non-parole period, all right? So you will be exposed to further periods in custody.
100You can avoid that by simply complying with this order. As I say, I have imposed a combination type sentence, you will be released not too long from now. You head out to Afri-Aus Care, have some dealings with them. Make sure that your medication situation is under control and immediately take steps to contact your Area Mental Health Service and a GP, for that matter, because if you fail in this respect we will meet again, and I do not want to see you again.
101I am not monitoring you. It is my hope that you will continue to engage appropriately with your medical practitioner. If you do, it is most unlikely that you will breach this order, but if you go off your medication, if you stop being treated, it is most likely that you will breach it and I will see you again in that setting and if I do, as I say, work on the theory that it is likely to end in your going back to prison – and for a significant period too, by the way. Let me just see if I have adequately explained that order or if there is any issue in terms of it.
102So, as I say, the order will last for two and a half years. Now, I'll hand it down in a moment for you to – each of you to peruse, Ms Fleming and
Ms Khan – but Ms Khan, are you satisfied that I'll be receiving informed consent? I mean, I'm sorry I've had to spend so long dealing with the sentencing remarks and the extent to which he has followed on, it's hard for me to know, but I might give you a chance to speak to your client to satisfy me that he is providing informed consent.103MS KHAN: Yes. Thank you, Your Honour.
104HIS HONOUR: I'll have the document firstly come down to you. Let me just have a look at it and I'll send it down to you in a moment. Have a seat.
105It seems to be in order. Just have a look at it, each of you, and make sure it mirrors my stated intention. If it does, then I'll get you to go down and discuss it with your client then.
106MS KHAN: Thank you, Your Honour. There's no difficulty on my end.
107MS FLEMING: No issue, Your Honour, from my perspective.
108HIS HONOUR: Yes. Go down and see if he's consenting, if you would? Thank you.
109MS KHAN: Thank you, Your Honour. Thank you, Your Honour, he agrees to that. I'm not sure if it was premature, but I've had him sign the document.
110HIS HONOUR: That's all right. That's fine. All right, Mr Ochien, could you stand up please? I just want to confirm, do you confirm that you have signed this document?
111OFFENDER: Yes.
112HIS HONOUR: And do you consent to entry into this community corrections order?
113OFFENDER: Yes.
114HIS HONOUR: Yes, all right. Okay, have a seat then for a moment. You'll get a copy of this and we'll deal with that shortly.
Section 6AAA
115I have taken into account your guilty plea, Mr Ochien. If you had pleaded not guilty and been found guilty of these offences I would have sent you to prison for three and a half years. I would have fixed a non‑parole period of two years in that setting and that declaration under the provisions of s6AAA of the Sentencing Act is to be entered into the records of the court.
Serious Offender Status on Charge 2
116Further, I have sentenced you as a serious arson offender in relation to Charge 2 and that, likewise, is to be entered into the records of the court.
Section 18 Declaration
117I have also sentenced you to a term of imprisonment in combination with this community corrections order. You have been in custody for a period of 428 days, which of course exceeds the period of time that I have imposed by way of a prison sentence, however I will make a s18 declaration in relation to that full period. So you have served the period of 428 days in custody pursuant to this sentence, which as I say, exceeds the sentence that I have imposed.
Disposal Order
118Finally. I believe, finally, there's a disposal order here that's sought? It relates to a couple of lighters and a bottle of deodorant. There's no issue taken with the disposal of these matters and I'm satisfied that the conditions for the disposal of those items set out in the schedule is achieved here. Section 78 of the Confiscations Act is satisfied and I order the forfeiture to the State of those items. I direct that they be handled and managed in the way contemplated by the signed orders, pursuant to s78.
119Let me just see if there's anything I've overlooked. Is there anything else from either of you? Anything else I need to deal with?
120COUNSEL: No, Your Honour.
121HIS HONOUR: No? All right. Once I've left the Bench, Ms Khan, if you can provide my associate with a phone number that your client can be contacted on? Presumably the sister's phone number, I guess, for the moment?
122MS KHAN: Yes, Your Honour.
123HIS HONOUR: She can provide, also, a – I think a phone number relating to the Area Mental Health Service that I've specified. So there'll need to be contact made one way or the other, and pretty swiftly I think.
124MS KHAN: Yes, Your Honour.
125HIS HONOUR: Because he's come to Court in custody, even though there'll be no further time in custody he has to go back the same door he came in, because he'll have to be processed downstairs, but that should occur reasonably quickly, I would have thought. Well that concludes the matter then, I believe.
126So nothing else I need to deal with? Let me just see. No. I'll sign the order down in chambers, I think 10am on Friday then. Thank you.
---
2
8
0