Director of Public Prosecutions v Reynolds

[2018] VCC 1164

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02332

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:	31 July 2018
CASE MAY BE CITED AS:	DPP v Reynolds
MEDIUM NEUTRAL CITATION:	[2018] VCC 1164

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Weavers
For the Accused	Mr G. Thomas

HER HONOUR:

1William Reynolds, you have pleaded guilty on indictment to a charge of burglary and a charge of arson; both of which occurred on the fourth day of September of last year.

2Burglary is a charge which carries a maximum of ten years' imprisonment.  A charge of arson carries a maximum of 15 years' imprisonment.  Those maximums reflect the seriousness with which Parliament does regard the offences.

3The circumstances of your offending were set out in a document entitled, "Summary of Prosecution Opening", dated 20 February 2018.  It is exhibited at P1 and the contents of the document were not disputed by your counsel,
Mr Thomas.

4In short compass, at the time of your offending you were 18 years of age.  You were living alone in a residential unit owned by the Department of Health and Human Services, located in Mordialloc.

5On the morning of 4 September 2017 you walked from your unit, at the rear of the residential complex, to another unit which was located the second from the front.  Your friend Joanne Bakerzis resided at this unit.  You knocked on her window but, whilst present inside, she ignored your knocks.  You then went to the front unit.  As I understand it, this unit was also owned by the Department of Health and Human Services but was unoccupied and the fact that it was unoccupied was known to you.  The unit was partially furnished.

6You opened the unlocked front door of the front unit and entered the premises.  This fact encompasses Charge 1, that of burglary, in circumstances where it is particularised that you had an intent to cause damage.

7Once inside the unit you walked to the rear bedroom where there was a mattress.  You used a cigarette lighter  to set fire to that mattress.  The mattress and the carpet in the room began to burn and the fire took hold.  You then left the unit.  This comprises Charge 1 on the indictment, that of arson.

8You returned to the unit in which Ms Bakerzis has resided and she let you in.  After a few minutes she noticed the smell of smoke and you and Ms Bakerzis  walked outside.  She saw that there was a fire in the front unit.  You then went back inside her unit and called 000 to report the fire.  You then used a garden hose to spray water on the unit to which you had set fire.

9The fire brigade subsequently attended.  At the time of their attendance you were waiting at the front of the unit complex and assisted the fire crew with pulling their hoses from the fire truck.

10Ultimately the fire was extinguished, but not before the premises were completely destroyed.  I am told that the cost to rebuild the unit has been estimated at between $165,000 to $170,000.  I have also had recourse to the photos of the damage caused by you.

11Police attended and you were arrested and taken to the Moorabbin police station for the purposes of interview.  In that interview you made full admissions to your offending, which is to your credit.

12I am told that you pleaded guilty to the two charges on the indictment at a committal case conference hearing held on 15 November 2017.  It is conceded by the prosecution that your plea was made at an early opportunity.

13Given your assistance at the scene, the contacting of ‘000’, your full admissions and other material in evidence before me, I am satisfied that your plea is one of remorse.  Further, it has saved the court time and expense associated with contested proceedings.

14It is appropriate that a significant discount attach, in terms of sentencing for your plea of guilty, to send a clear message to you of the advantage in sentence of taking such a course and in order to encourage others to take a similar path.

15I have taken into account matters personal to you, which have been raised on your plea and some of which give context to your offending.  Without doing those matters justice, in short compass, you were raised in East Brighton, with your parents separating when you were approximately five years of age.  I am told you have not seen your father since this time.

16Your mother was diagnosed with schizophrenia prior to your birth.  Whilst I am told that your mother was loving and caring, her struggle with her own mental health meant that she presented as disorganised and chaotic when she was unwell.  Your mother was psychiatrically hospitalised in 2012, which resulted in you being placed in foster care for a period of some eight months and she had a continuing battle with her mental health.  This cannot be without its impact on you.

17In terms of your education you part completed up to Year 9 at Mordialloc High School.  You briefly attended a carpentry apprenticeship but otherwise do not have an employment history.  You commenced smoking cannabis from the age of 13 years and continued to do so until the age of about 16 years.  You commenced using methylamphetamine or methamphetamine in 2016 and have since suffered drug induced psychosis.

18In early 2017 you required an inpatient admission to a psychiatric facility between 24 February 2017 and 7 April 2017.  You were then commenced on depot antipsychotic medication and were formerly diagnosed with schizophrenia.  You were also placed on a community treatment order, due to expire in August of this year.  Unfortunately, you continued to smoke methylamphetamine through 2016 and into 2017, until the time of your arrest.

19At the time of the offending presently before the court your mother had been a palliative care facility, suffering from terminal bowel cancer.  Your mother did not accept that she suffered from this condition.  You were on your own in the unit, as previously described, using drugs and suffering from mental illness.  You visited your mother in the hospital the day prior to your offending but she was unable to communicate with you, given she was heavily medicated.  You returned home feeling upset and your offending occurred in that context.

20I am told that your mother died some two weeks after your arrest in relation to these matters.

21You have what can be described as a limited criminal history.  However it is a relevant prior history and that you have previously been before the Melbourne Children's Court in relation to criminal damage by fire on a number of occasions.  Whilst you are not to be punished again for these previous court appearances, the fact that they exist and a number of times causes concern in relation to the risk you present to the community and the need to protect the community from you.

22It also gives me cause for concern in relation to the proper consideration of both specific deterrence, putting you off reoffending, and general deterrence, in terms of sending a message into the community, and where to focus your prospects of rehabilitation.

23I have had recourse to a report authored by Dr Adam Deacon, consultant psychiatrist, and dated 17 February 2018.  Dr Deacon's assessment includes an assessment of your forensic history.  He was aware that you recalled lighting a couch in your family home when you were aged approximately seven years.  He was also aware that you had lit a series of fires in 2012, when you and another lit rubbish bins in the Melbourne business district, leading to multiple fire brigade responses.

24You told Dr Deacon that your offending on 4 September 2017 was on impulse, in response to your level of upset and that engaging in similar behaviour in the past had made you feel better.

25In Dr Deacon's opinion, your early development was marked by considerable adversity.  Your mother's own mental illness meant that she was unable to provide consistent boundaries for you in you earlier adolescence.  He was also of the opinion that you appeared to have developed an unhealthy curiosity with fire lighting and noted that you have been formerly diagnosed with schizophrenia and substance abuse, a diagnosis with which he does not quibble.

26At the time of your offending, Dr Deacon was of the opinion that you were unusually marginalised without necessary family and peer support.  He was of the opinion that it was possible that your schizophrenia, combined with the residual effect of methamphetamine used by you, reduced your capacity to think clearly and exercise reasonable judgement.  He notes that fire lighting had previously provided a temporary alteration in your mood and a sense of satisfaction.

27He was of the view that you have expressed appropriate remorse and your mental health issues can be considered to be contributing factors to your offending.  He was also of the view that you require indefinite psychiatric treatment but, given the idiocentric nature of this offence, it was unlikely to be similarly repeated.

28You counsel calls into your aid the principles of The Queen v Verdins & Ors, [2007]; 16 VR 269. I am satisfied on the evidence before me that there is a causal link between your recognised mental illness and your offending behaviour and that limbs one through to four of that decision are enlivened.

29I have also had recourse to a report authored by Dr Campbell Thorpe, consultant psychiatrist from the Headspace Youth, Early Psychosis Program.  This report was marked as Exhibit D3 and dated 12 February 201, although it would appear that the correct date would be 2018.  Dr Thorpe was your treating psychiatrist from February 2016 until September 2017.  He confirmed that up until then you were receiving treatment with Headspace as a compulsory patient under the Mental Health Act.

30Dr Thorpe confirmed that your symptoms of psychosis in early 2017 occurred in the context of substance misuse but had previously persisted without substance use being present.  In his view, your presentation had included paranoid delusions, auditory hallucinations, thought disorder and disorganised behaviour.  This presentation, in Dr Thorpe's view, had to be seen in the context of a significant family history of mental illness.

31He noted that since commencing medication your symptoms of psychosis had improved but would be affected by continued substance misuse and social stressors.  You were compliant with mandated medication and were engaged in and accepting of appropriate supports.  Headspace was prepared to continue their involvement with you as a source of support.

32At the time of your plea coming before me, on 27 February 2018, you were undergoing a sentence in a youth justice centre.  Whilst your offending and your arrest took place on 4 September 2017, you received a sentence of six months in a youth justice centre from the Moorabbin Children's Court on 6 September 2017.  You therefore spent some two days in adult custody before receiving this sentence. I take this into account.

33You were to be released from the juvenile justice sentence shortly after appearing before me and were to be assisted by various organisations, which had included Headspace.

34I released you on bail to be supervised by Youth Justice and to appear before me on 30 April 2018.  The purpose of this adjournment was to see how you managed the transition from a period in youth detention and to your return to the community.  I also ordered an extended pre-sentence report as each of the parties had indicated that a community corrections order was an outcome which would properly reflect all the relevant sentencing considerations in your particular case.

35Unfortunately the extended pre-sentence report was not completed or even commenced over the adjourned period through no fault of yours.  I was provided with a supervised bail progress report, dated 30 April 2018 and authored by
Ms Jordana Lougoon from the South East Metropolitan Youth Justice Program.  That report was exhibited at D4.

36It told me that upon your release from Malmsbury Youth Justice Centre on
4 March 2018 you were provided with accommodation at the Hampton House Supported Residential Service.  Unfortunately you were asked to leave this accommodation by 30 March.

37You initially engaged well with all services under your bail program, which included Youth Justice, Headspace and Taskforce.  Unfortunately you became very distressed at various matters that reminded you of your mother's death and again returned to drug use, which led to the loss of our accommodation.  I am told that you began squatting at the address which your mother had previously occupied.

38Following your recommencement of the use of ice Ms Lagoon reports there was a noticeable deterioration in your mental health and all agencies working with you had grave concerns for your wellbeing.  You were unable to complete a detox program that was organised for you.

39Ms Lagoon further reports that you experienced acute issues with your mental health, grief and loss stemming from your mother's death, substance use and accommodation issues.  By the time you appeared before me on 30 April 2018 you were very much in a situation of crisis.

40I was also provided with a letter from Taskforce, exhibit at D5 and dated
30 April 2018.  This letter told me that you displayed a willingness to reduce your drug use, but that you were struggling with doing so given your battle to deal with your mother's loss, your lack of social supports, family supports and education, as well as adequate coping strategies.  You were described by the author of that report, Jade Llewellyn, as presenting as a bright young male with a potential to have a successful future.  Ms Llewellyn also observes that you demonstrate significant insight into your issues and current situation and this is an important factor, in my view, in properly assessing your prospects for rehabilitation.

41As I had not received the extended pre-sentence report as ordered it was submitted that I should consider a further adjournment so that report could be obtained and that you could continue to work with Youth Justice, Headspace and Taskforce to try and stabilise your situation.  I was prepared to take that course and accordingly adjourned your matter for further plea and sentence to be held on 16 July 2018.

42I have now received the extended pre-sentence assessment outcome report, dated 30 April 2018.  I suspect the date is incorrect, given references to other dates within the body of the report.  But, either way, you are assessed as being at high risk of general reoffending.

43It is obvious that your treatment needs are complex.  You do not lack insight into the reasons for your offending.  You were assessed as being a suitable candidate for a community corrections order and the court was asked to consider a range of conditions, which did include unpaid community work, drug assessment and treatment, alcohol assessment and treatment, mental health treatment, offending behaviour programs, supervision and judicial monitoring.  I accept each of those recommendations, other that in your particular case I do not see the need for community work.  Indeed, in my view that would place you at greater risk.

44I have also received an updated supervised bail progress report, dated 9 July 2018, as authored by Ms Lougoon which told me that both Headspace and Taskforce had taken a primary lead in your life as the source of supports.  They are clearly important and it is hoped by me that their work with you can continue.

45Youth Justice managed to assist you to have your mother's office of housing tenanncy transferred to your name. Significant works were required to make it habitable.

46You remain on a community treatment order and were in daily contact with the Headspace, and Ms Lougoon's report at that time told me that you had been compliant with your medication and were not presenting as psychotic.  It also advised that you had spent five days in a youth detox, from 2 to 7 July 2018, but that you were still attracted to continued drug use.

47It was most unfortunate that two days following that report you were presenting as psychotic.  I note that this was the day that the criminal charges were to be finalised.

48I have now had recourse to Ms Lougoon's report, dated 30 July 2018, exhibited at D7.  That tells me that since the previous date and today's date your community treatment order was changed to an inpatient treatment order on 10 July, due to an active presentation of psychotic symptoms, following use of methamphetamine.

49I am told that there will be a recommendation for a further community treatment order, on the basis that you remain engaged with Headspace and without medication mandate.  You remain engaged with Ms Llewellyn from Taskforce, for drug and alcohol counselling and, as already indicated, in my view it is important that that continue.

50You do espouse a continued desire to use substances, coupled with a deep sadness at the death of your mother.  I can assure you that I understand the deep sadness at the death of your mother and you may well benefit from grief counselling.  I remain concerned about your ongoing desire to use substances.

51If there is one thing that I am right about today, it is the impact on you of your drug use upon your mental health.  That in turn impacts on the community, because when you are unwell you present a risk of reoffending.  When you are using drugs you present a risk of reoffending.

52You need to start doing the maths and to understand that drug use does not make life better.  It does not make a better life for those around you and in fact, clearly, tends to make things a lot worse.  The same can perhaps be said for your need to comply with mental health treatment.  Non-compliance puts you and therefore the community at risk.

53There is no doubt that at the age of 18 years and one month, at the time of the offences the subject of this indictment, you could be accurately described as a young offender.  As such, one of the primary consideration for any sentencing court is your youth and I accept that the emphasis should be on promoting your rehabilitation.  There is no reason to displace this emphasis.

54The basic purposes for which a court may impose a sentence of punishment; general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have a regard to a range of matters, such as the seriousness of the offending, you culpability for it, your personal circumstances and those of any victim.

55I am also required to balance the interests of community in denouncing criminal conduct, with the interest that the community does have in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

56Accordingly, and considering all matters that I am required to consider, I will place you on a community corrections order.  That will be with conviction.  It will last for a period of 22 months.  That takes into account the period you have already done on supervised bail and has been reduced accordingly.

57As indicated, I will not ask that you do community work but you will be supervised by the office of corrections and you will submit for treatment in relation to drug use and abuse; mental health; offence specific programs, which may be identified; and you will be supervised, if I have not said so already, by the Office of Corrections.  You will be required to come back before me for judicial monitoring, so I can keep an eye on you and make sure that you are being compliant with the order.

58In addition to the conditions that I have imposed are standard conditions.  The first and foremost of those is you must not commit any other offence during the 22 month period, which could be punished by imprisonment.  You are required to report within two working days of today to the nearest community corrections office, which in your case I think will be Moorabbin.

59You are also required to advise your supervising corrections officer of any change of address of where you are living or working, and must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey by all instructions and directions of a community corrections officer.  You are not able to leave the state of Victoria without the prior permission of your supervising community corrections officer.

60You should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion, should you choose to take up that opportunity.

61The order can be breached you do not comply with its terms or conditions or you re-offend during its operation.  Should you do so you will be required to reappear before me for a contravention, which may require me to re-sentence you for the charge of arson and burglary, as well as considering the charge of contravening the community corrections order.

62So do you understand all of that?

63OFFENDER:  Yes, I do.

64HER HONOUR:  I can only place you on that corrections order if you're prepared to sign a document to that effect, are you prepared to do that?

65OFFENDER:  Yes.

66HER HONOUR:  All right.  Did you just want to approach very briefly,
Mr Thomas, to make sure that ‑ ‑ ‑

67MR THOMAS:  Yes, Your Honour.

68HER HONOUR:  ‑ ‑ ‑ Mr Reynolds with all of that.

69MR THOMAS:  Thank you, Your Honour,

70HER HONOUR:  And I'll have the order drafted.  The judicial monitoring will be 1 October.  What the means, Mr Reynolds, and I'll just get a time from my associate in a moment, is that you come in here to see me.  I get a report from the office of corrections telling me what's happened over that period.

71OFFENDER:  All right.

72HER HONOUR:  All right.  Don't stick your head in the sand, make sure you show up on those occasions.  And if things go well it's a condition that I'll consider dropping at a later stage.  But I do want to keep a little bit of an eye on you for a while.  Were there any other further orders?

73MR WEAVERS:  No, Your Honour, just the disposal and the forensic sample order.

74HER HONOUR:  Yes, I've done that.  Anything else, Mr Thomas?

75MR THOMAS:  No, Your Honour.

76HER HONOUR:  All right.  Is 10 o'clock for the judicial monitoring okay?

77OFFENDER:  What date?

78HER HONOUR:  1 October, which is a ‑ ‑ ‑

79ASSOCIATE:  Monday.

80HER HONOUR:  Is Monday okay?  I can fit in with you, in terms of day.  Except not Saturday or Sunday.  And usually I do it at 9 o'clock, so I'm giving you a bit of a break by doing it at ten.

81OFFENDER:  Okay.

82HER HONOUR:  Remembering this of course is punishment and not everything goes your way.  But I'll try and fit in as best I can.  Well, I've signed it.  Once you've signed it you're free to go and I'll see you on 1 October.

83MR THOMAS:  Your Honour pleases.

84HER HONOUR:  All right, thank you very much to each of you for your assistance.  I'll stand down temporarily.

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