Director of Public Prosecutions v Riis

[2023] VCC 2125

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00913

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS RIIS

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2022
DATE OF SENTENCE:	28 November 2022
CASE MAY BE CITED AS:	DPP v Riis
MEDIUM NEUTRAL CITATION:	[2023] VCC 2125

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Catchwords:              Persistent contravention of a family violence intervention order – Burglary – Arson – Guilty plea – Worboyes – Verdins – Guarded prospects of rehabilitation.

Legislation Cited: ss 5, 6AAA, 18 Sentencing Act 1991 (Vic).

Cases Cited:Byast v The Queen [2021] VSCA 344; Rossi v The Queen [2021] VSCA 296; R v Verdins [2007] VSCA 102; The Queen v Martin [2015] VSCA 248; Worboyes v R [2021] VSCA 169.

Sentence:                  Three years and one month imprisonment with a non-parole period of           two years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	L. McPhie	The Office of Public Prosecutions
For the Accused	J. Mortley	Michael J. Gleesons & Associates

HER HONOUR:

1Nicholas Riis, you have pleaded guilty to one charge of persistent contravention of a family violence intervention order, one charge of burglary, and one charge of arson. You have also agreed to and pleaded guilty to two summary charges of unlicenced driving.

CIRCUMSTANCES OF OFFENDING

2The full circumstances of your offending are outlined in the summary of prosecution opening marked as Exhibit A on the plea and is outlined below.

3The victim in this matter is Ms Donna Kirkmoe.  You had been in an intimate relationship with her for a period of six months, between October 2020 and March 2021. 

4Between 14 April and 21 April 2021 you either telephoned or messaged Ms Kirkmoe, on approximately 60 occasions. 

5This conduct was in breach of the condition of the intervention order, made on 1 April 2021, not to contact or communicate with her by any means and constitutes the basis of Charge 1.

6As for Charges 2 and 3, in the early morning of 21 April 2021 you attended ‘Fast Fuel’ service station located at 570 Boronia Road, Wantirna, in your grey Hyundai.  There you filled a petrol can with 3.16 litres of unleaded petrol.  At approximately 7.15am you parked your vehicle outside an address on Owen Street, Mitcham, 70 metres from Ms Kirkmoe’s home address on Rooks Road, Nunawading, in contravention of the intervention order. 

7You parked your vehicle facing west and with a clear, uninterrupted view of her address.

8Ms Kirkmoe is seen on CCTV at approximately 8.02am leaving her home in her vehicle, a white Holden Commodore sedan. She drove from her home address in Nunawading to her workplace in Tecoma.

9At approximately 8.04am, you exited your vehicle and held a green Woolworths shopping bag over your left shoulder. You approached and entered Ms Kirkmoe’s address, in contravention of the intervention order.

10You smashed a sliding glass window and gained access to her home. You placed a pile of items, including DVDs and some of her clothing, at the back laundry door of the house. You then poured petrol on the items and set them alight.

11At approximately 8.17am, you exited the property as smoke came from the roof. You returned to your parked vehicle in Owen Street.  Between this time and 8.23am you drove past the Ms Kirkmoe’s house while it was on fire approximately three times.   

12At approximately 8.30am, multiple firefighters from Fire Rescue Victoria arrived at the Ms Kirkmoe’s house to find the house engulfed by flames. The fire was extinguished a short time later. The cause of the fire was determined to be the ignition of combustible materials piled outside the back-laundry door, assisted by the presence of petrol.

13The value of the damage caused by the fire was estimated to be $300,000.

14At approximately 9.42am police telephoned the Ms Kirkmoe to inform her of the fire at her address. She told police that you had just arrived at her workplace in his vehicle. She was overheard saying ‘you've set my house on fire…’.

15At the time you were driving your vehicle on 21 April 2021 you were not licenced to drive (Summary Charge 16 – Unlicensed driving).

16On the day of your arrest, you were intercepted by police driving your vehicle on 26 April 2021 you were also not licenced to drive on this occasion (Summary Charge 18 – Unlicensed driving).  

17Police arrested you and a search warrant was executed in relation to your motor vehicle, and later on your home. 

18You were transported to the Box Hill Police Station where you were interviewed by police. You remained mute throughout the duration of the interview.

19You were subsequently charged and remanded into custody, where you have remained.  You have a total of 581 days in pre-sentence detention. 

Victim impact

20Ms Kirkmoe provided a victim impact statement to the Court in which she outlines the devastating impact of your offending on her.  She speaks of how she was effectively rendered homeless and destitute.  She states:

I was finally doing well.  My couch was only 11 months old.  My fridge I’d had for 2 months.  My new tv – all these things that I was proud of, I lost everything.  Everything in the house was taken from me.  My daughter is a qualified hairdresser and all her professional equipment was burned to the ground.  I draw and all my artwork was destroyed.  Pictures I had drawn over years and years are gone now.

21It is clear that your offending has significantly affected Ms Kirkmoe and the quality of her life and I take this into account in sentencing you. 

Gravity of the offending

22Arson is a very serious crime.  The higher courts have stated that ordinarily, an offender convicted of arson can expect to receive a significant term of imprisonment.  General deterrence will generally loom large as a sentencing consideration.[1]

[1] The Queen v Martin [2015] VSCA 248, [26].

23Your offending was serious.  It involved an element of pre-planning, as illustrated by the purchasing of petrol or accelerants.  The damage caused was considerable and it has had a profound impact on your victim. As the prosecutor also points out,  your offending occurs within the context of family violence and in breach of an active intervention order.

24On the face of it, your offending is objectively serious and your moral culpability is correspondingly high.  However, in your case, and I will return to this in a moment, I do consider that Verdins[2] principles have some application in your case which is relevant to my assessment of your moral culpability and the various sentencing objectives.

[2] R v Verdins [2007] VSCA 62.

25In the lead up to the offending, your Counsel provided the following background.  On 20 April 2021 you were at the Ferntree Gully address where you were staying.  At about 8.00pm Ms Kirkmoe attended with three or four unknown males and stole your property.  You claim she told you that you were going to be raped and have your car stolen. You followed her but one of the males had a firearm and stated ‘Don’t bother mate, go back to your room’.  You sat on the couch confused, and the voices that you had been hearing for the last few weeks, started telling you ‘Crush, destroy, defeat your enemies’ and ‘Burn them to the ground’.  You tried to fight the voices but they became louder and you could not sleep.  That morning you went to the petrol station and purchased petrol.  You thought that you could satisfy the voices by burning the property, but did not want Ms Kirkmoe to be injured.  You returned shortly after to see if you could put the fire out but it was too late.  I note here that this account is partly corroborated by Ms Kirkmoe in her conversation with First Constable Lawrence on the day of the offending.  She told him that the night before she ‘Just snapped and rang up some of my friends and they come with me and they went to his house…and grabbed some of my stuff back’.

26In respect of Charge 2, this is a separate charge and involves distinct criminality. You have pleaded guilty to entering Ms Kirkmoe’s house as a trespasser, with intent to steal. It is however part of the same set of circumstances of the arson. Considerations of totality in particular will result in substantial concurrency on this count. 

27As for Charge 1, you were the object of an intervention order which was designed to protect Ms Kirkmoe and that prohibited you from committing family violence against her and you breached this, in the manner particularised. This offending occurred for over a week period and involved you telephoning Ms Kirkmoe on a number of occasions, in breach of the order.  In assessing the gravity of your offending I take into account that, in the main, it involved telephone contact and not in person contact.  Nor is it suggested that you made any explicit threats as part of this conduct.  There is also some overlap in the particulars of the offending and the events of 21 April 2021 which I will have regard to, along again with the principle of totality. 

Plea of guilty

28Your plea of guilty was entered at an early opportunity, prior to the committal.  Your plea of guilty represents an acceptance of responsibility on your part and a willingness to facilitate the course of justice. 

29Your plea of guilty has significant utilitarian value, particularly in circumstances where there is still a large backlog of cases in the Court.  I recognise the utilitarian benefit of the plea and I accept your counsel's submission that a significant discount is warranted for the utility in facilitating the course of justice during a time where the court system continues to experience disruptions and delays caused by the pandemic.[3]

[3] Worboyes v R [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296, [15].

30You have now been on remand for a substantial period of time and you are a protection prisoner.  In August 2022 you were moved to Hopkins.  During your current period on remand you have been unable to do any courses due to the impact of COVID-19.  You have been told that you must wait three months before you can apply.  I take into account that your period on remand has been more restrictive and onerous due to the impact of the COVID-19 pandemic on the prisons. 

Personal circumstances

31You are nearly 50 years of age.  You appear to still have some contact with your mother but have not had any with your father for years now. Growing up he was neglectful, absent and an alcoholic, and was also at times violent towards the children. Your older brother sadly passed away in June 2016 from a drug overdose. You have a younger brother who lives in Townsville who you describe as a ‘good boy’.  

32You completed Year 7 at Ferntree Gully Technical School and never returned. You left home at 15 and lived on the streets for several years. 

33You believe that you first started hearing voices from the age of nine.  You report not fitting in and that you tried to hang yourself at the age of 10.  While your mother took you to your general practitioner you do not recall much follow up. In 2003 or thereabouts you were diagnosed with schizophrenia and you have been a patient of your local area mental health service since that time. 

34Your history of drug use is somewhat conflicted and unclear.  From a young age, you started drinking alcohol in excess and then either from the age of 10 or 15, you started using cannabis.  Your use increased over the years.  You then cut down your use because it made your auditory hallucinations worse and you stopped using for a period .  Previously you have also used methamphetamine, amphetamines.  At the age of 23 years you started injecting heroin.

35At around 16 years of age, you started an apprenticeship as a nursery man at the local plant nursery. This lasted for about a year before your drug use and criminal offending interrupted such stability.

36You report a 16 year relationship commencing in your late teens, producing two sons who are now in the mid to late twenties and with whom you still have contact.  For some of this relationship you apparently held work in various unskilled labour positions and you were drug free.  From about 1999 you relapsed into heavy drug use resulting in a cycle of hospitalisation and offending.  By around 2006 your partner had left you owing to your drug use and incarceration.  Your drug use then escalated and you resided in boarding house style accommodation over the years. 

37In October 2010 you were sentenced to three years imprisonment with a non-parole period of 18 months’ imprisonment.  Upon release you relocated to Morwell to reside with your older brother who was registered with Centrelink as your carer.  Until December 2016 you largely remained abstinent from drugs.  You were then offered methamphetamine by your brother and relapsed.  Your brother smashed up the house you were living in which found you both evicted.  You went to live with your grandparents for a period of time.  Your brother passed away in June 2016 from an overdose.  You left your grandparents home as you felt you had overstayed your welcome and then thereafter you lived on the streets around Boronia. 

38Your mental health began to deteriorate and you had a hospital admission and then moved to Ferntree Manor Supported Residential Service.  You spent time between hospital and the Manor.  While you were living at the Manor they oversaw your medication including fortnightly Depot injections. 

39You met the victim while she was working as a tobacconist in Tecoma.  You began seeing each other in September 2020.  You instruct that while you had stopped using drugs for a period, the relationship between you involved drug use and that your relationship floundered. 

40I take into account your personal history in sentencing you.

Prior criminal history

41You have a lengthy prior criminal history commencing in 1990.  Your history is mainly for drug and dishonesty offences.  You have several priors for damaging property or criminal damage but no history for arson offending or breaching intervention orders.  You served your first custodial sentence of a 12 month YTC in 1990, when you were aged 17.  You have since served several periods in custody and over the years have also received suspended sentences, community based orders, intensive corrections orders and a combined custody and treatment order.  A number of these orders were subsequently breached.  The last longest sentence you served was the one I have already referred to, imposed in October 2010 for a consolidation of matters, including a large volume of burglaries.  Since this time and over the more recent years you have tended to serve short straight sentences of imprisonment or sentences combined with a Community Corrections Order. 

42Your criminal history is relevant to an assessment in particular of your rehabilitative prospects, specific deterrence and community protection.  

Mental health and application of Verdins principles  

43Dr Fiona Best has provided two reports, dated 22 September 2022 and an addendum report of 26 October 2022. In her first report, she confirms your well-established and long-standing diagnosis of schizophrenia, which is an enduring mental illness. 

44During previous periods of incarceration you have been an inpatient in prison based inpatient units and at Thomas Embling Hospital as a security patient.  You have also previously been admitted to acute psychiatric inpatient units on at least nine occasions.  At the time of the offending you were on a Community Treatment Order under the Mental Health Act 2014 (Vic) and you were being case managed by Murnong Community Mental Health Clinic in Ringwood East.

45It seems clear enough that you are not the most reliable historian and have contradicted yourself on a number of occasions during your assessments with Dr Best.  She considers that chronic effects of psychosis and substance abuse are likely to cause cognitive deficits which probably explain the discrepancies in your reported history.  To this end, she recommends neuropsychological assessment to identify specific areas of cognitive deficits.

46In relation to the offending, you reported to her that you had not been taking your psychotropic medication, Quetiapine and Olanzapine, and concealed your non-adherence from your case manager at your local mental health community clinic.  You report using cannabis and methamphetamines around the time of the alleged offending.  You report not thinking clearly because of disrupted sleep the night before and feeling unsettled and initially angry by the victims threats the night before. 

47Dr Best stated at page 15 it was:

Difficult to establish a causal connection between the arson and the auditory hallucinations that were telling him to burn down the house because he reported he understood that it was wrong to burn it down, and he demonstrated some reasoning and planning skills about not wanting to hurt Donna and therefore waiting for her to leave the property, before allegedly setting the fire and then returning to the fire in an attempt to extinguish it.

48She opines at paragraph six at page 15 of her first report:

It is very likely that at the time of the alleged offending, Mr Riis’s judgement and ability to make calm and rational decisions were impaired significantly as a consequence of schizophrenia with worsening psychotic symptoms secondary to poor adherence with treatment and illicit drug use. 

49At paragraph seven she also states:

Mr Riis’ impaired mental functioning as a consequence of his illness means that incarceration may weigh more heavily on him than it would on an individual without those difficulties, and he is likely to be vulnerable in prison compared with individuals who do not have a mental illness.  However, I note that the prison environment has enabled him to receive regular mental health treatment from prison-based psychiatry and treatment for Type 2 Diabetes.

50In her addendum report she confirms that, on balance, she does not consider that you have available to you a defence of mental impairment available. 

51In relation to the offending she concludes at paragraph two of page four:

At the time, his mental state was destabilized by inadequate treatment for schizophrenia, the impact of illicit drugs on his fragile mental state and the trauma he experienced secondary to the visit from his ex-partner. These factors were such that Mr Riis judgement and ability to make calm, reasoned and rational decisions were impaired significantly because of worsening psychotic symptoms of schizophrenia to poor adherence with treatment, illicit drug use and the impact of trauma.

52On your behalf, your Counsel, Mr Mortely, submitted that Verdins limbs one, three, four and five have application in your case.  He relied substantially on the evidence of Dr Best as outlined in her reports. 

53Mr Mortely accepted that self-induced intoxication, and part compliance with medication, played some part in the exacerbation of your underlying mental illness.  He submitted this is a matter that may lessen the application of Verdins, but should not disentitle you from relying on it. He submits your illness also exists independent of any such drug use. The offending would not have occurred but for your schizophrenia. Further, your decline in mental health was not only attributable to drug use or non-compliance with medication during that period.  He makes the point that you were still, partly at least, compliant with your medication.  Also, a further catalyst to your decline in health was the intrusion and threats made against you the night before; matters  beyond your control. Dr Best’s unchallenged opinion is that your ability to make rational decisions was significantly impaired at the time of the offending.  He also distinguishes the case of Byast v The Queen[4], relied upon by the prosecution, which involved a case of wholly induced intoxication by an offender who deliberately and with full knowledge of the consequences, took drugs which triggered psychosis. 

[4] Byast v The Queen [2021] VSCA 344.

54On behalf of the prosecution, Mr McPhie submits that the addendum report does not clear up the inconsistency at paragraph five of the first report, at pages 14 and 15, where Dr Best refers to the difficulty in establishing a ‘causal connection’ between the arson and the auditory hallucinations.  Also, it was submitted that you have an extensive and entrenched history of drug use and of poor compliance with medication, you knew why you were medicated and you were deliberately trying to hide your non-compliance from your workers.  Relying upon the principles in the case of Byast, it was submitted that your deterioration of health or onset of your illness was within your control and therefore you should not be able to avail yourself of Verdins.  A number of factors played a role and it is difficult to disentangle them and there is no explanation as to precisely what role each played.  It was accepted that limb five of Verdins applied although the positive aspects that prison has had were noted.  

55As the Court of Appeal stated in the case of Verdins, the application of the relevant principles demands a rigorous examination of the evidence.[5]  The question is whether the evidence, establishes on the balance of probabilities that the impairment of mental functioning contributed to the offending in such a way as to render the offender less blameworthy for the offending than would otherwise have been the case.  In other words, is there a causal link or ‘realistic connection’ between the two. 

[5] R v Verdins [2007] VSCA 62, [33].

56On the basis of the evidence before me, I accept that you suffer from a serious mental illness and that you did at the time of the offending.  In the lead up to the offending, you were using drugs, complying with some of your medication but not all of it, and you had experienced trauma from the threats made against you the night before. I largely accept the submissions advanced by Mr Mortely on your behalf and I accept that all these factors combined to destabilise your well-established and underlying schizophrenia.  In turn, I accept that while you may have understood at the relevant time the wrongfulness of your conduct, your judgment and ability to make calm, reasoned and rational decisions were significantly impaired. I agree that it is impossible to disentangle the various factors or to attribute to each of them a precise weight. Overall, I consider that they combine to warrant some reduction in your moral culpability.  While the case of Byast is in some respects similar, I don’t regard it to be on all fours with yours.  In that case the onset of mental illness was considered to be entirely attributable to the offender’s own decisions. In any event, the sentencing judge accepted that there should still be ‘some reduction’ of moral culpability on account of mental illness but nevertheless regarded the offender’s culpability, and the need for deterrence, to be high.

57In your case, I also accept  that your substantial psychiatric issues should moderate to some extent, general deterrence. Also, I accept  that imprisonment weighs more heavily on you, notwithstanding that it has allowed you to stabilise your mental health and receive appropriate treatment. 

58I do however regard protection of the community as an important consideration in your case, given the serious nature of your offending, your prior criminal history and your history of non-compliance with medication and drug use.     

Prospect of rehabilitation

59I agree with the prosecution that your prospects of rehabilitation are guarded.  You have a lengthy prior criminal history and community protection is a very relevant consideration in your case, which must be given weight.  As Dr Best states, in a community setting, the HCR-20, indicates that you would be at moderate to high risk of perpetrating future violence with those risk factors escalating significantly if you do not comply with your medication, or if you disengage with your treatment team and use illicit drugs. 

60In custody, your medication is now stable.  You report still hearing voices but they have largely reduced.

61Upon your release your only goal is to obtain stable housing and mental health assistance.   I consider it essential to your rehabilitation that you remain abstinent from drugs and that you receive treatment for your mental illness.  Dr Best states that you are at risk of violence in the future particularly when your mental health is unstable and you are floridly psychotic. 

62She also states that on release from custody you would benefit from an assessment for treatment by the Forensicare Serious Offender Consultation Services, to support you and your local area mental health service to reduce risk of re-offending, manage your mental health treatment, reduce illicit drug use and support your adherence to treatment regimes.

Sentencing principles

63The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community.  There will be some moderation of relevant principles due to the application of Verdins in your case, as already discussed.  I do regard protection of the community as an important factor in the sentencing synthesis in your case. 

64I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty to, in particular, for arson. The current sentencing practices are but one factor to be taken into account. They do not set an upper or lower limit of the appropriate sentence in any particular case. The sentences for arson can vary widely, depending on the particular circumstances of the offence and the offender.

65I also take into account the principles of parsimony, proportionality and totality in your case. 

66Both Counsel submit, and I agree, that the only just and appropriate sentence in your case is one of imprisonment. 

Sentence

67Your case is a complex sentencing task, but taking into account and weighing up all matters you are convicted and sentenced, as follows.

68On Charge 1 which is the persistent breach charge, you will be convicted and sentenced to ten months’ imprisonment.  On Charge 2 which is the burglary charge you will be convicted and sentenced to 12 months’ imprisonment.  On Charge 3 which is the arson charge you will be convicted and sentenced to two years and eight months’ imprisonment.

69Orders for cumulation are as follow, Charge 1, three months’ imprisonment, Charge 2, two months’ imprisonment, Charge 3 is the base sentence.  That should arrive, Counsel, at a total effective sentence of three years and one month imprisonment.  I am setting a non-parole period of two years’ imprisonment.

70In relation to the unlicensed drive charges, on each charge you are convicted and sentenced to seven days’ imprisonment and I am ordering that those terms be served concurrently. 

71MR MORTLEY:  As the Court pleases.

72HER HONOUR:  Thank you.  I set this parole period having regard to the various matters that I have identified, your mental health, community protection and also the recommendations of Dr Best who suggest that you would benefit from a range of supports to assist you in your transition back into the community and ultimately to reduce your risk of re-offending.

73

Pursuant to s18 I declare that you have served a period of 581 days as

pre-sentence detention which is now approaching 20 months. Pursuant to s6AAA, but for your plea I would have sentenced you to a term of four years and seven months’ imprisonment with a non-parole period of around three years’ imprisonment.

74MR McPHIE:  Yes, Your Honour.

75MR MORTLEY:  If Your Honour pleases.

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