Director of Public Prosecutions v Reynolds

[2019] VCC 882

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00420

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM REYNOLDS

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 June 2019
CASE MAY BE CITED AS:	DPP v Reynolds
MEDIUM NEUTRAL CITATION:	[2019] VCC 882

REASONS FOR SENTENCE
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Subject:  Arson, Contravention of Community Correction Order
Catchwords:  Youth Justice, Mental Health
Legislation Cited:  Sentencing Act 1991
Cases Cited:  R v Verdins & Ors [2007] 16 VR 269
Sentence:  19 months detention in a youth justice facility

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bate
For the Accused	Mr G. Thomas

HER HONOUR: 

1William Reynolds, you were sentenced by me on 31 July 2018 after you had pled guilty on indictment to a charge of burglary and a charge of arson, both of which had occurred on 4 September 2017.  The circumstances were encompassed in my sentencing reasons handed down on 31 July 2018. 

2In terms of those circumstances, in relatively short compass, at the time of that offending you were aged 18 years and living alone in a residential unit owned by the Department of Health and Human Services.  That unit was located in Mordialloc.

3On the morning of 4 September 2017, you went to an unoccupied unit as part of the same premises.  That unit was also owned by the Department of Health and Human Services.  You opened an unlocked front door of the unit which encompassed the charge of burglary, and once inside used a cigarette lighter to set fire to a mattress which took hold, comprising the charge of arson.  You remained in the vicinity on this occasion and responsible for calling 000.  You then used a garden hose to spray water on the unit to which you had set fire and you remained until the fire brigade attended, assisting them with pulling their hoses from the fire truck.

4Ultimately the fire was extinguished but not before the premises were completely destroyed, the estimated cost of rebuild being between $165,000 and $170,000.  You were arrested at the scene and taken to the Moorabbin police station where you made full admissions. 

5In relation to that offending, you were sentenced by me to a 22 month community corrections order, the conditions of which included that you be supervised by the Office of Corrections, you undergo treatment and rehabilitation for drug use and abuse, you undergo treatment and rehabilitation in relation to your mental health, that you participate in offender behaviour programs and that you attend upon the County Court for judicial monitoring as required.

6When I fixed that sentence, there were a range of matters taken into account by me which included your youth, your early plea of guilty, your general assistance in terms of remaining at the scene and full admissions, your remorse, matters personal to you, your limited criminal history, (albeit it a relevant one) and the report of Dr Adam Deacon, consultant psychiatrist.  You have a formal diagnosis of schizophrenia and substance abuse, indeed you were first placed on a community treatment order in February 2016 when only 16 years of age. 

7Since that time you have experienced a number of psychiatric hospitalisations.  In Dr Deacon's opinion it was possible that your schizophrenia, combined with the residual effect of methamphetamine use by you, reduced your capacity to think clearly and exercise reasonable judgment.  He noted that fire lighting had previously provided a temporary alteration in your mood and a sense of satisfaction and he was of the view that you expressed appropriate remorse and that your mental health issues could be considered to be contributing factors to your offending.

8At that time, Dr Deacon was of the opinion that, 'Given the idiosyncratic nature of this offence, it is unlikely to be similarly repeated'.  This is one aspect of his opinion that would appear to be incorrect but at the time of the sentence imposed in July 2018, I was satisfied that the principle of R v Verdins & Ors [2007] 16 VR 269 had application in that there was a causal link between your recognised mental illness and your offending behaviour and that limbs one to four of that decision were enlivened.

9In July 2018, you were also well supported by Headspace, Youth Justice and TaskForce, a drug service, and that support was ongoing. 

10It is true to say that since being placed on that order, you have continued to struggle with drug use and abuse as well as your mental health and that all agencies working with you had grave concerns for your wellbeing.  You are now in breach of the order imposed by me on 31 July 2018 by way of both non-compliance and by further offending.  You have admitted that breach.  Most of the matters that I have already referred to will continue to have relevance to the re-sentencing exercise.

11On 6 December 2018, you committed a further offence of arson to which you have now pleaded guilty.  The charge of arson carries a maximum penalty of 15 years imprisonment, reflective of the seriousness with which Parliament regards this offence.  The details of that offending are set out in a document entitled “Summary of Prosecution Opening on Plea” dated 3 April 2019.  This document is exhibited at P1 on your plea and is an agreed document. 

12This opening outlines that on 6 December 2018, you were at your home address when you placed rubbish together with a bin under a mattress on the lounge room floor.  You then used a cigarette lighter to set fire to the rubbish which in turn spread to the mattress and subsequently throughout the premises.  You ran out the front door and onto the driveway and this time did not remain.  The Metropolitan Fire Brigade, ambulance services and police all subsequently attended.  It took approximately 40 minutes to extinguish the fire.

13Neighbours called 000.  There were approximately nine residents at the premises.  One neighbour, Ebony Love, was at home with her children, including a baby.  She evacuated her home with her children before also calling 000. 

14The unit you burnt was completely destroyed and needs to be rebuilt.  Again, the estimated damages are in the vicinity of $180,000.  It is indeed fortunate that the fire did not spread to the neighbouring properties.  Obviously the potential ramifications for your actions were severe, even if not realised.  Such events are no doubt distressing and disturbing to your neighbours in any event and place them and emergency service personnel at risk.

15In times of limited community housing, you have been responsible for the destruction of two premises that are no longer available to those that are likely to be in dire need.  In this particular instance, that includes yourself. 

16Police were unable to locate you upon their attendance.  However, the following day, on 7 December 2018, you presented at the Moorabbin police station with a staff member from TaskForce.  You were placed under arrest and it was noted that you had sustained burns and had earlier made threats of self-harm.  You were deemed unfit for interview at the time because of the need for both medical and psychiatric assessment.

17I accept that at the time of your offending you were likely to be mentally unwell.  You were subsequently interviewed after medical assessment and made full admissions to your offending.  You were remanded into custody and have remained in custody since 7 December.  You have 189 days available by way of pre-sentence detention. 

18You appeared before me initially on 21 March of this year for a mention in relation to the contravention of community corrections order.

19At that time you were then arraigned in relation to the new charge of arson and entered a plea of guilty. The matter was adjourned to 30 April with a request that a report be prepared pursuant to s.8A of the Sentencing Act, that is a Youth Justice Centre Pre-Sentence Report.  Again, your plea of guilty has utilitarian value.  It has saved the court the time and expense of contested proceedings as well as the witnesses the trauma that would be associated with having to re-live the events of 6 December 2018. 

20I accept that your plea is a clear indication that you take responsibility for your offending. 

21On 30 April 2019, the hearing commenced but your lawyer appeared and advised that Dr Walton, psychiatrist, needed more information to finalise his opinion.  The matter unfortunately had to be further adjourned and was re-listed on 28 May 2018.  In the meantime, a suitability for Youth Justice Centre order report dated 15 April 2019, compiled by Amanda Pennacchia, and Nicole Tempany had been provided in advance of 30 April date.

22Pursuant to s.32 of the Sentencing Act, a court may make a Youth Justice Centre order if it has received a pre-sentence report and it believes there are reasonable prospects for the rehabilitation of a young offender or it believes that a young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.  In determining whether to make a Youth Justice Centre order, a court must have regard to the nature of the offence and the age, character and past history of a young offender.  I have had regard to each of those circumstances.

23In assessing as to whether or not you are suitable for Youth Justice Centre order, the report writers found that you are not suitable for detention in a Youth Justice facility.  The assessment was that you are likely to be vulnerable in adult custody but, further, that you are likely to be vulnerable in any custodial setting.  In effect, this assessment would appear to confirm that you are vulnerable in the adult setting.  The report assessed you as having low prospects of rehabilitation; however, the report also acknowledged that with your age, likely maturity, personal development and stabilisation of your mental health that you would have some prospects of rehabilitation that could be the subject of planning and intervention in the adult system.

24This appeared to be contingent on your ability to receive specialised, multidisciplinary treatment case management and case planning within a specialised forensic mental health unit in which you were housed in the adult system at the time the report was authored.  The report indicated that you had been involved with Youth Justice services since 2012 when only 12 years of age.  The report noted ongoing concerns with your lack of insight into your offending which the writer linked to your poor mental health and chronic substance abuse. 

25As I have said, at the time of the pre-sentence report as to your suitability for a Youth Justice Centre order, you were located in the forensic mental health unit of Ravenhall Correctional Centre and were engaging with a psychologist and psychiatrist regularly and receiving intensive mental health support.  Unfortunately, your location in such a unit could not be maintained through no fault of your own and by the time of your further plea on 28 May 2019, you had been transferred into a mainstream unit. 

26Tendered on your behalf were two psychiatric reports authored by Dr Lester Walton, consultant psychiatrist.  The first is dated 16 April 2019 and the second is dated 1 May 2019.  I have had recourse to each of these reports. 

27In his initial report of 16 April, Dr Walton effectively indicated that he had insufficient information to finalise a number of the questions which he had been asked.  By the time of the report dated 1 May 2019, Dr Walton had been provided with the additional materials that he had required.

28He was able to confirm the diagnosis of schizophrenia and substance abuse.  He was confident that you suffered from schizophrenia, aggravated by methamphetamine abuse, rather than drug-induced psychosis.  He noted you were of normal intelligence and are cognitively intact.  He agreed with the Youth Justice assessment that you should be regarded as a vulnerable individual.  In particular, that you are at significantly elevated risk of psychotic relapse, regardless of the custodial setting.  In Dr Walton's opinion a more comprehensive psychiatric program was available at the Ravenhall prison compared with Malmsbury but he noted that once you became sentenced, you are less likely to be accommodated in a psychiatric unit.

29Given your transfer into the mainstream system even on remand, his concern about limitations on your ability to access a specialised mental health unit would appear to be correct.  The material before me again supports the application of the principles of R v Verdins, and again, particularly limbs one to four. In essence, you continue to suffer from a recognised and serious mental illness. You are still very young at 19 years of age and the moral responsibility you carry for what is serious offending is reduced due to your established mental illness.

30It seems to be a united position that there should be some moderation of the weight that would be otherwise given to both general deterrence and specific deterrence and I agree that both should be moderated in what I view as clear evidence of your mental illness and the direct role it has played in your offending. 

31Dr Lester Walton was called to give evidence before me on 28 May 2019.  He indicated that since being placed in a mainstream unit, you had seen a psychologist once and it would be usual to do so approximately once per month as a mainstream prisoner.  He indicated that you tend to self-isolate and as long as you did not present as acute, you would remain, 'Under the radar', in the adult prison setting.

32There is no compulsory treatment available and there would only be assertive treatment if a problem presented and was identified.  Your more serious offending occurs in the context of a relapse of your mental illness.  If you are in the adult system, relatively stable and flying under the radar, you would in my view be more susceptible to the undesirable influences of the adult system and at risk of contamination.

33According to Dr Walton, your insight in relation to your fire lighting remains limited and has not allowed you to desist.  Your dysfunction goes back to a time prior to becoming psychotic, prior to your mother's death and prior to your use of drugs.

34You maintain a positive attitude to continued drug use.  For you, the use of ice is likely to result in a psychotic episode.  Fire setting for you is a means to release tension.  Dr Walton described your prospects as poor and that you are challenging candidate.  These factors place emphasis on the best means to protect the community.

35Dr Walton expressed concern about your pattern of recidivism but saw that risk as potentially reversible if you refrain from further drug abuse and there was a consistent maintenance of psychiatric treatment as well as involvement in specific fire prevention rehabilitation.  Whilst he was not of the view that such risk could be eliminated, this aspect of his opinion does go to your prospects of rehabilitation.

36Dr Walton was of the view that you are less likely to suffer a psychiatric relapse in a juvenile setting because of the different nature between the stressors in each environment.  He was of the view that those stressors were likely to be less deleterious in a Youth Justice setting compared with adult incarceration.  This is also relevant to your prospects of rehabilitation as well as your vulnerability in an adult setting.

37Dr Walton gave evidence that you understand that you have schizophrenia and require treatment.  He notes you have been compliant with treatment in custody.

38The real issue for you and the community will be when you transition back into the community.  Dr Walton gave evidence that his experience was such that assistance available to you would be more consistent and reliable in the Youth Justice system.  He described you as a dangerous individual who needs supervision so the real emphasis in protecting the community comes through the facilitation of conditions upon your release.

39Evidence was also called from Ms Amanda Pennacchia from Youth Justice who was the author of two suitability assessment reports before me.  The first of those I have already referred to and was dated 16 April 2019, and the second was an addendum to a pre-sentence report dated 27 May 2019.

40In her second report in time, Ms Pennacchia confirmed that you had been transferred to a mainstream unit as of 8 May 2019.  She noted that you have been compliant with your medication and were engaging well with staff.  You were still assessed as having a lack of insight into your offending and a lack of understanding of the consequences for others of your offending.  The author did note your remorse.  Her original assessment remained, that is you are not suitable for detention in a Youth Justice facility.

41Whilst assessed as being vulnerable in adult custody, the view was still taken that you are likely to be vulnerable in any custodial setting.  She expressed the view that Youth Justice were unable to provide the level of intensive mental health support you require. I am not satisfied that that is available in the adult system and probably potentially less so unless you could be guaranteed constant assistance from the intensive mental health unit at Ravenhall. No one is in a position to offer such a guarantee and recent history would indicate that is not available to you.

42Ms Pennacchia indicated that you have a long history working with Youth Justice but that they had been unable to address your presenting issues or mitigate your risk.  She indicated that if you were sent to a Youth Justice facility, you would be allocated to the Malmsbury Youth Unit.  There are presently new providers for psychological and psychiatric treatment which are not on site.

43In order to access such treatment, you would need a referral.  She was unsure of how long that process would take or what services would be available.  There was no special mental health unit and you would be treated in the same way as any other client. I found some of this evidence surprising given Youth Justice's clear knowledge of your presenting issues and the obligations they would otherwise have to address those issues.

44While housed in any Youth Justice unit, Ms Pennacchia’s evidence was that you would be seen by your allocated worker fortnightly to check in on your progress which would be done with you directly and with staff.  Orygen are the new mental health providers and they would be told of your presence and determine the level of intervention required. Psychiatric services can attend approximately every three weeks but that would depend on your desire to do so. 

45It would appear, on the balance of the evidence before me that a Juvenile facility offers you greater attention and to your mental health problems. It offers a greater ability to monitor your progress and respond to any deterioration in your mental health than would be available in the adult system as a mainstream prisoner.

46Once approved for parole in the youth justice system, you would be assisted to transition into both parole and into the community.  It is likely that you would be assisted to locate accommodation.

47I am of the view that you are more likely to have greater access to supervision and services in the Youth Justice regime encompassing both your detention and eventual release.

48As already outlined, your offending on 17 December contravenes the community corrections order that I had earlier imposed upon you. 

49Section 83AS(2) requires that I take into account the extent to which you have complied with the orders I had made.  I have had recourse to a “Contravention of Community Corrections Order by Conditions and Further Offences Report” dated 12 March 2019 as well as the monitoring reports that I received during supervision of you under that order.

50The contravention report allows me to assess your compliance with the order that I made.  The report details that you attended upon Corrections for supervision appointments on 10 occasions but accrued five unacceptable absences for which no explanation was provided.

51It is reported that you appear to engage reasonably well within those supervision appointments whilst also exhibiting symptoms of psychosis as well as being either under the influence of or withdrawing from substances.

52As the order continued, I am told that you presented at supervision appointments in an increasingly agitated state.  There were limits on the progress that could be made on this order given what was described as your often chaotic presentation.  You received psychiatric hospitalisations between 11 July 2018 and 3 August 2018 as well as the 19 September 2018 to 28 September 2018.

53During the corrections order, you also remained linked in with both TaskForce and Headspace.  I am told that you maintained close communication with these services but your ongoing difficulties with your mental health and refusal to reduce substance abuse remained a problem throughout the order.

54As I have said to you previously, until such time that you form the view that your substance use maintains your risk of poor mental health, both of which maintain your risk of reoffending, that any court will need to give weight to protection of the community in consideration of sentence.

55Overall, the report before me concludes that your compliance with all the conditions was satisfactory. 

56On a finding of guilt for contravention of a community corrections order, a court has the power to vary the order, confirm the order originally made, cancel the order and resentence on the original offences or cancel the order and make no further order.

57It was recommended by the Office of Corrections that I cancel the order I made and resentence you on the original offences of burglary and arson.  No challenge was made to that recommendation.

58I do accept in consideration of this report, together with the other materials filed, that your compliance issues were heavily connected to your mental health problems and drug use.  There is a clear need to address both of those problems in order to further reduce your risk but your level of overall compliance combined with the reasons for your non-compliance put your contravention towards the lower end.

59In terms of the basic purposes for which a court may impose a sentence, they include punishment, general deterrence - sending a message into the community -, specific deterrence - sending a message to you, rehabilitation, denunciation and protection of the community.

60In sentencing you, I am required to have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

61I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure as far as possible, that offenders are rehabilitated and are reintegrated into society.

62I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act 1991 where relevant to your case. I have also taken into account sentencing practices for the offences to which you have pleaded guilty.

63Your counsel contends that all these can be properly addressed through the imposition of detention in a Youth Justice facility.  That submission is not contested by the Crown.

64In terms of sentence, based on the evidence before me, and having considered the provisions of s.32 of the Sentencing Act, I am satisfied on balance that you are vulnerable in the adult system and with proper interventions, which would appear to have a more responsive approach in the Youth Justice system, that there does remain prospects for your rehabilitation.  I only need to be satisfied as to one of these criteria in any event.

65In terms of sentence and at this point, Mr Reynolds, I will ask you to stand.  It is part of the formal process.

66For the charge of arson committed on 7 December 2018, you are convicted and placed in a Youth Detention facility for a period of 14 months.  This is the base sentence.

67In relation to the contravention, I find the contravention of the community corrections order imposed by me proven.  For the contravention, you are convicted and placed in a Youth Detention facility for a period of one month.

68In relation to the original charges of arson and burglary, I am satisfied the circumstances exist in which it is appropriate to impose an aggregate sentence for those two charges and I do so. I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or are part of a series of offences of same or similar character.  In doing so, I also bear in mind the principles of totality and proportionality.

69Accordingly, you are convicted and placed in a Youth Detention facility for a period of 10 months.  Four months of this sentence is cumulative on the base sentence and the one month imposed for the contravention is cumulative on both.

70This comprises a total effective sentence of 19 months in a Youth Detention facility for which 189 days are reckoned as time already served.

71Section 6AAA of the Sentencing Act, I am not sure actually now whether it applies to youth detention.

72You can be seated for a moment if you like, Mr Reynolds.

73I know it applies to gaol and community corrections orders over a certain amount and fines over a certain amount.

74MS BATE:  If Your Honour would bear with me, I will just quickly go to the Act.

75HER HONOUR: Yes or I should have thought of this beforehand. I do not understand that s.6AAA does refer to detention.

76MS BATE:  It does not.

77HER HONOUR:  So no need for me to deal with that issue.  So the upshot is 19 months in a Youth Detention facility.

78MR THOMAS:  If Your Honour pleases.

79MS BATE:  As Your Honour pleases.

80HER HONOUR:  Is there anything I missed or any other orders that need to be made?

81MS BATE:  No, Your Honour.

82HER HONOUR:  All right.  Well, I thank the parties for their assistance.  I will stand down till 3.

83MR THOMAS:  Thank you, Your Honour.

84HER HONOUR:  Thank you.

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