Director of Public Prosecutions v Sampson
[2022] VCC 2208
•7 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 21-02139
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN SAMPSON |
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JUDGE: | Her Honour Judge Gwynn | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2022 and 11 November 2022 | |
DATE OF SENTENCE: | 7 December 2022 | |
CASE MAY BE CITED AS: | DPP v Sampson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2208 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Arson; Commit indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Coats [2020] NSWSC 1236; R vVerdins & Ors (2007) 16 VR 269
Sentence: Term of imprisonment of 6 months in combination with a 2 year community corrections order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Johnston | Office of Public Prosecutions |
| For the Accused | Ms A. Dixon | James Dowsley & Associates |
HER HONOUR:
1Jordan Allen Sampson, you have pleaded guilty on indictment to a single charge of arson and have also entered a plea of guilty to a related summary offence of committing an indictable offence, that is the arson, whilst on bail.
2In sentencing you for your crimes, I am obliged to have regard to the maximum penalties which attach to each of the offences that you have committed.
3The charge of arson carries a maximum penalty of 15 years imprisonment.
4The bail offence carries a maximum penalty of three months imprisonment.
5The maximum penalties reflect the seriousness with which Parliament regards these offences.
6The circumstances of your offending were set out in the document entitled 'Summary of Prosecution Opening for Plea' dated 13 April 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The Offending
7Located at 225 Carlisle Street, Balaclava is a commercial premises, leased by Vincent Mobilo from February of 2019. These premises were used as a radiological clinic called Balaclava Radiology, a business which Mr Mobilo and his sister, Elizabeth Mobilo, jointly owned. From taking over the lease, Mr Mobilio spent some $360,000 on renovations prior to the commencement of the business.
8On 16 February 2020, you were involved in an aggravated burglary at an address in Dallas, Victoria, during which a black Honda CRV motor vehicle was stolen. These matters are not the subject of charge before me.
9On 18 February 2020, at around 4.48 am, you and an unknown male (referred to as 'the principal offender') drove to the corner of Carlisle Street and William Street, Balaclava in the CRV. You were in the front passenger seat.
10The principal offender exited the car and removed a red jerry can from the rear passenger footwell. That jerry can contained a mixture of petrol and automotive diesel fuel.
11The principal offender approached the front door of 225 Carlisle Street and gained entry. He doused the front reception area with the fuel from the can and ignited it. This caused a rapid and significant fire inside the premises.
12When the principal offender tried to exit the premises through the front door, the door would not open. You got out from the CRV and assisted the principal offender to get the door open and escape the burning premises. You and the principal offender then returned to the vehicle and you both drove away.
13Fortunately, there was no one in the premises at the time.
14Fire and emergency services attended the scene and extinguished the fire.
15The premises and its contents sustained extensive damage in the fire, including damage to benches, office and computer equipment, paperwork, carpet and furniture in the administration area; extensive damage in the ceiling space in the administration area and adjoining rooms; damage to the reception desk and office equipment in the reception area; and extensive sooting and heat effects in the ultrasound examination rooms.
16The building and its contents were insured, as was the Balaclava Radiology business. As of 16 February 2021, the costs incurred by the insurer in paying the claims made by the business were in excess of $1.6m dollars. Those insured losses included the costs of damage repair or replacement as well as business interruption.
17At the time of you committing the offence of arson on 18 February 2020, you were on bail, the subject of summary charge – commit an indictable offence whilst on bail.
18On 16 February 2021, police attended the Fulham Correctional Centre to speak to you about the arson. You denied any recollection of the arson and made no admissions.
Offence gravity and victim impact
19In terms of offence gravity and victim impact, the bail offence shows a clear disrespect for court orders and, as your criminal history reveals, you have a relevant history for failing to abide by court orders, including bail orders.
20The offence of arson is one which carries significant dangers and risks in terms of damage to property as well as potentially placing the lives of the individual, emergency service personnel and members of the community in harm's way. In this particular instance, I am told the premises were located in a densely developed area in Balaclava with numerous commercial premises close by. The risk of fire spreading to neighbouring properties and other amenities was considerable.
21It is clear from the factual scenario that the premises were targeted. Given it was committed in the early hours of the morning, I accept that minds had been turned to the likelihood that no one would be present. No one was present. Minds were likely also equally turned to that hour to decrease the risk of detection.
22It is accepted by the Crown that your role was lesser than that of the principal offender. I could not form the view that your involvement or intent was much in advance of the events themselves, at least from the point of the removal of a jerry can from the car by the principal offender.
23Significant property damage was caused and great inconvenience undoubtedly to those running the radiology practice as well as to existing and pending patients.
Plea of guilty
24In terms of your plea of guilty, the Sentencing Act 1991 obliges me to consider when you entered your plea.
25You entered your pleas on 16 December 2021 after completing contested committal proceedings in October of that year.
26There were a number of adjournments before your plea hearing was in a position to proceed.
27To your credit, you have now acknowledged your responsibility for your offending in your plea of guilty. This demonstrates a willingness by you to facilitate the course of justice and, importantly, has saved the court the time and expense of contested proceedings as well as witnesses of the need to attend and give evidence.
28Your plea of guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted.
29In the context of the materials before me, I am satisfied that your plea of guilty also exhibits some remorse.
30All of these factors will be taken into account in your favour.
Prior Criminal History
31You have an unenviable criminal history of some eight court appearances commencing in 2015.
32On 7 May 2015, you appeared at the Heidelberg division of the Melbourne Magistrates' Court in relation to minor offending and were placed on an adjourned undertaking for a period of 12 months.
33On 26 November 2015, you appeared at the same court in relation to a range of offending which included theft, burglary, going equipped to steal and theft of a motor vehicle. You were placed on a community corrections order for a period of 12 months with treatment conditions.
34On 8 February 2016, you appeared at the Melbourne Magistrates' Court in relation to charges of driving in a manner dangerous, going equipped to steal, theft of a motor vehicle, unlicensed driving and a range of dishonesty and bail offences. At that time, you were convicted and placed on a community corrections order for a period of 18 months with treatment conditions.
35On 3 May 2016, you appeared at the Heidelberg division of Melbourne Magistrates' Court in relation to a range of dishonesty offending and drug possession. You were convicted and sentenced to three months imprisonment of which 57 days was reckoned as served.
36You then appeared at the Heidelberg Magistrates' Court on 30 August 2016 in relation to charges of motor vehicle theft, theft, and committing an indictable offence whilst on bail. You were convicted and sentenced to three months imprisonment of which 40 days were reckoned as having already been served.
37On 27 October 2016, you appeared at the Broadmeadows Magistrates' Court in relation to contravening the community corrections order imposed upon you on 26 November 2015 and the corrections order imposed on 8 February 2016. You were placed on two community corrections orders of 12 months duration.
38On 10 August 2017, you appeared at the Heidelberg Magistrates' Court for contravention proceedings relating to the community corrections orders imposed upon you on 27 October 2016. You were also sentenced on that day for charges of theft of motor vehicle and negligently deal with the proceeds of crime. Overall, you received a sentence of 10 months imprisonment of which 183 days were reckoned as having already been served.
39On 17 December 2019, you appeared at the Heidelberg Magistrates' Court in relation to a range of offending which included dishonesty, contravening a conduct condition of bail and drug possession. You were convicted and sentenced to 122 days imprisonment which was reckoned as having already been served.
40What history demonstrates is that to date, supervisory orders have not assisted you nor have relatively short periods of imprisonment deterred you.
41You do not have a prior history for arson or for damaging property. You do not have a history of violence.
42Your prior criminal history is not something for which you fall to be sentenced a second time. Instead, it is relevant to the weight which should attach in the sentencing exercise to specific deterrence, denunciation and protection of the community. It is also a mechanism with which to assess your prospects for rehabilitation.
43Viewing your criminal history in isolation, those prospects would appear to be guarded.
44There is some explanation for your offending in your personal circumstances to which I now turn.
Personal Circumstances
45You are now aged 28 years.
46Your mother, Melissa Smith, separated from your father, Alan Sampson, when you were about 18 months old.
47Your mother re-partnered when you were approximately two and a half years of age. You now have two sisters, Emily and Madison, born from your mother's new relationship. You also have two additional siblings, Cailean and Tiarna, due to your father also re-partnering.
48You primarily resided with your mother and would visit your father on weekends.
49When aged 14 years, your mother sent you to reside with your father after a dispute with you. During this period, your father was regularly travelling overseas, leaving you to fend for yourself. You later returned to live with your mother who has remained a constant support.
50You do get along well with your stepfather and describe your mother as supportive, nurturing and affectionate. You describe a happy childhood overall.
51When aged approximately five years old, you were diagnosed with attention deficit hyperactivity disorder and placed on medication. You were bullied at school and had behavioural issues. You left your formal secondary education in Year 10.
52You stopped medication for attention deficit hyperactivity disorder when aged about 14 years. This coincided with your resort to cannabis and alcohol use.
53On leaving school, you commenced a pre-apprenticeship in house painting and then started an apprenticeship. You were using cannabis throughout this time. Around the age of 17 to 18 years, you commenced using GHB and methylamphetamine. You dropped out of your apprenticeship with only six months left to complete it. You have not had consistent work since.
54Around July 2019, you suffered a serious GHB overdose and were hospitalised. You instruct that you have not felt the same since.
55In August of that year, you suffered a relationship breakdown as your partner could not cope with changes in your personality post overdose. This had been your most significant intimate relationship and you were heavily affected by its demise. This fuelled your continued drug use.
56You were using both methylamphetamine and GHB heavily at the time of your offending before me.
57Your admitted criminal history does coincide with your drug use and your peer associations. You tend to quickly return to drug use after any period of imprisonment you have been required to serve.
The Bugmy principles
58Your counsel contends that this background gives rise to the Bugmy principles, arguing that the application of these principles should give rise to a reduction in your moral culpability.
59Mr Bugmy grew up in an environment of extreme dysfunction and disadvantage. He was an Aboriginal man who grew up in a household in which alcohol abuse and violence was rife. He had little formal education, was unable to read and write, and started drinking alcohol and taking prohibited drugs when he was 13 years old. Mr Bugmy witnessed his father stab his mother 15 times, and his siblings all had records for violence. His record of juvenile offending commenced when he was 12, and he was regularly detained in juvenile detention centres from that age. When he turned 18, he was transferred to an adult prison. He had a long record of convictions including for offences of violence and had spent much of his adult life in prison. His history also included repeated suicide attempts.
60The High Court in Bugmy made a number of significant findings which include:
(a) A person's background of social disadvantage may mitigate sentence.
(b) The effect of a person's background of social disadvantage may vary but it does not diminish over time.
(c) The impact on an individual sentence of a person's history of social disadvantage can and should vary as the weight to be afforded social disadvantage requires individual assessment.
61Most importantly, the Bugmy decision highlighted that 'in any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background'.
62Your counsel has also referred me to a decision of R v Coats [2020] NSWSC 1236. Mr Coats was sentenced for a charge of inflicting grievous bodily harm. After seeing injuries which a friend had incurred during a fight with other persons, Mr Coats picked up a discarded Mattock handle and struck another with it. The victim received fractures to the left eye socket, the left nasal bone and left cheekbone via a single blow. Mr Coats was intoxicated at the time. He had a history of long-term illicit drug use. In addition, Mr Coats was aged 42 at the time of the offending and had suffered a disadvantageous upbringing. He was born when his mother was serving a term of imprisonment and he was adopted from her when six months of age. He was mainly raised by adoptive grandparents and had developed behavioural problems by the age of 12. He reacted badly when his adoptive status was revealed to him at 12 years and his behaviour worsened including truancy, drinking alcohol and being rebellious against authority. He was using cannabis by the age of 13 and amphetamines by the age of 17 years. Mr Coats left school in Year 9. In sentencing Mr Coats, the judge was prepared to reduce to some extent his moral culpability given his offence 'was committed whilst under the effect of intoxicating illicit drugs which addiction he acquired as an aspect of his childhood deprivation'.
63I do see the situation of both Mr Bugmy and Mr Coats to differ from yours in terms of their respective experience of childhood deprivation.
64I accept that aspects of your background appeared difficult in the sense of suffering ADHD from a young age and being bullied at school, but on the evidence before me you were well supported by your mother and you maintained a positive relationship with your father and siblings. Your problems stem from your early resort to drug use. Drugs have remained in your life and seem to be your primary method of managing your emotions and well-being. It is relevant in that way.
65In terms of the actual offending, given I have formed the view that I could only be satisfied that your involvement was in close proximity timewise to the offending itself and that your role was partly in panic to assist your co-offender to safety and for you both to escape the scene, your relevant intention was, in that sense, fairly spontaneous. At first blush, it is difficult to see where any meaningful reduction in moral culpability would lie in any event.
66I do accept that your offending occurred in the context of a heavy drug addiction and the associations you had as a result. This does not mitigate your culpability.
Expert Assessments
67I turn now to the expert assessments. Tendered on your behalf were reports dated 19 May 2020, 22 April 2022 and 2 September 2022 authored by Ms Carla Ferrari, Forensic Psychologist. I have had recourse to each of those reports.
68The report dated 19 May 2020 appears to have been prepared in anticipation of proceedings in the Magistrates' Court.
69You told Ms Ferrari that the offending dealt with in the Magistrates' Court was whilst you were under the influence of methamphetamine and GHB. You described methamphetamine as making you feel calm and reducing your symptoms but that GHB makes you feel impulsive, invincible, and overly confident.
70You were identified by Ms Ferrari as presenting with attention deficit hyperactivity disorder, amphetamine-type substance use disorder and sedative, hypnotic and anxiolytic use disorder as well as a severe adjustment disorder.
71Ms Ferrari noted that your underlying ADHD is the main contributor to your persistent substance use and then offending behaviour. The use of substances contributes to your poor decision-making, impulsivity and reckless behaviour as well as an inability to consider consequences for your actions.
72In her report of May 2020, Ms Ferrari was of the opinion that your risk of reoffending was 'moderate high'. In your favour were stable psychosocial circumstances, family support, and developing insight and awareness.
73In her second report dated 22 April 2022, Ms Ferrari spoke of how difficult you were finding your remand due to the ongoing delays and restrictions associated with the COVID-19 pandemic. You had your first face-to-face contact with your mother in two years at the Easter long weekend. You had not been able to complete any one-on-one alcohol and drug counselling, though you were expressing a desire to do so.
74Your symptoms of anxiety and depression had increased and you had been prescribed a mood stabiliser, Lamotrigine, which you were finding helpful.
75You expressed remorse for your behaviour and offending and indicated that, had you not been substance affected, you would have not made such poor decisions.
76Ms Ferrari saw your untreated mental health as contributing to your self-medication with illicit substances. She expressed concern as to the deterioration in your mental health due to the limited availability of treatment for your specific conditions.
77At the time of her final assessment dated 2 September 2022, Ms Ferrari noted a further worsening of your symptoms.
78Ms Ferrari was of the opinion that your untreated attention deficit hyperactivity disorder was relevant as its core symptoms can predispose to 'unintentional involvement in criminal offences due to inherent impulsivity, cognitive and behavioural dyscontrol, emotional regulation issues, risk-taking behaviour, difficulty dealing with stress, anger management problems, and executive functioning deficits which lead to problems with considering and weighing up consequences of behaviour'. She also points to the high risk of resort to substance misuse. This symptomology is consistent with your history and functioning.
79At the time of your offending, Ms Ferrari opines that your untreated mental health, that is your ADHD and depressive symptoms due to the breakdown of your relationship, contributed to your excessive drug use. In this context, you made impulsive and poor decisions.
80Ms Ferrari had seen and assessed you on two previous occasions as outlined. In her later report, she forms the view that your mental health has deteriorated in custody even with the use of psychotropic medication. At the time of her assessment, you were suffering moderately severe depressive symptoms. In Ms Ferrari's opinion you also suffer from generalised anxiety disorder. She links your deterioration of condition to the restrictive prison conditions present due to COVID-19. Ms Ferrari expresses concern that your mental health is likely to continue to deteriorate and does so in circumstances where she had already observed deterioration.
81Ms Ferrari's findings provide a basis to apply limbs 5 and 6 of the principles contained in R vVerdins & Ors (2007) 16 VR 269. Your diagnosed conditions and noted deterioration would increase the hardship experienced by you in prison as you do suffer from a mental impairment at the time of sentencing. Your condition justifies a less severe sentence as the evidence indicates that there is a serious risk that imprisonment could have a significant adverse effect on your mental health. Ms Ferrari recommended that you also undergo neuropsychological evaluation.
82At your initial plea hearing on 19 September 2022, application was made to adjourn for further plea in order that a neuropsychological examination could take place.
83A report from Mr Martin Jackson, Neuropsychologist, dated 8 November 2022 has now been provided. I have had access to the entirety of his report.
84I note none of the reports before me are the subject of challenge.
85On testing, you presented with a full scale IQ of 69 which is in the extremely low range and below your estimated premorbid level of functioning.
86Your areas of particular poor functioning included your processing speed, multiple task processing, initial learning and all verbal executive skills. Mr Jackson opines that you are a man of estimated borderline verbal intellectual abilities and low average perceptual intellectual abilities.
87Mr Jackson was of the opinion that there were two possible causes for your ongoing cognitive impairment. They were as follows:
(a) issues with high-level attention, working memory and executive function which could well be due to ongoing symptoms of ADHD despite the fact that you are medicated; and
(b) it is also possible that you have experienced an acquired brain injury due to drug abuse given your impairments in high-level attention and executive functions.
88In Mr Jackson's opinion, there was clear evidence of cognitive impairment in the context of premorbid borderline verbal intellectual abilities and premorbid low average perceptual intellectual abilities. It is highly likely that your cognitive limitations are due to a combination of long-standing ADHD with an acquired brain injury due to substance use since a young age.
89It is also highly likely that these cognitive and behavioural impairments were both in existence at the time of your offending, worsened by your drug intoxication.
90Mr Jackson does see a causal link to the commission of the arson based on your cognitive impairments. In his view, given how poor your decision making judgment skills are, it is likely that you had very limited ability to make any decisions at all at the time of your offending.
91Based on the assessment of Mr Jackson and bearing in mind the observations I have made about the very short time frame in which your offending occurred, I am of the view that his opinion provides a basis to reduce your moral culpability as well as to moderate the principles of both general and specific deterrence.
92Mr Jackson also expresses concern as to your susceptibility to undesirable influence in prison given your cognitive profile.
93Unfortunately, Mr Jackson is of the opinion that your impairments are permanent in nature. You have a limited ability to change your behaviour on your own. You have a limited ability to predict the potential outcomes of your behaviours as well as to predict the impact on others of your behaviour. He states, ‘there is a high probability that he will return to drug use and subsequently offending given his cognitive profile and the lack of executive function that he has.' This elevates the consideration of protection of the community in the sentencing exercise. Mr Jackson does state that you would benefit from a structured and supportive pro‑social environment around you.
Totality
94I turn now to the principle of totality which has considerable import in the sentencing exercise. You have been in custody since 27 February 2020. This immediately predates the onset of the COVID-19 pandemic.
95Your period on remand has been during the Corrections response to the COVID‑19 pandemic where I accept, in the main, there has been less access to freedom of movement within the prison system, less access to educational and rehabilitative programs and less access to contact visits from friends or family. You have only physically seen your mother on some four occasions. New inmates were required to quarantine for 14 days on each occasion of a prisoner movement. Periods of lockdown were imposed at various stages. In a general sense, this does make any remanded or sentenced prisoner experience more burdensome than it would otherwise be. In your case, I have clear evidence from Ms Ferrari about the actual effect of this upon you and note the additional concerns expressed by Mr Jackson. This is another factor to be taken into account.
96An updated criminal history filed by your legal representatives indicates that you appeared at the Melbourne Magistrates' Court on 9 September 2020 in relation to a serious set of offences, including the aggravated burglary from which the CRV used in the arson was obtained. You were convicted and sentenced to three years imprisonment with a non-parole period of two years of which 262 days was reckoned as a period of imprisonment already served pursuant to that sentence.
97This aspect of your criminal history is extremely pertinent to the sentencing exercise when consideration is given to the totality principle.
98The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains 'just and appropriate' for the whole of the offending.
99A chronology is of some assistance.
(a) On 22 December 2019, you committed offences which saw you remanded into custody on 26 December 2019. You were released on bail on 20 January 2020;
(b) Between 15 and 16 February 2020 you committed further offences;
(c) On 18 February 2020, the offence of arson and contravene bail, both of which are before me, occurred; and
(d) Between 26 and 27 February 2020 you committed further offending and you were again remanded into custody on 27 February 2020 and have remained there since.
100As I have previously referred, on 9 September 2020, you were sentenced by the Magistrates' Court to a term of three years' imprisonment with a non-parole period of two years. This sentence related to your offending on 22 December 2019, 15 and 16 February 2020 and 26 and 27 February 2020. Bearing in mind the offence before me occurred on 18 February 2020, this comprises an offending period which is relatively confined, some two and a half months.
101This sentence imposed upon you by the Magistrates' Court on 9 September 2020 expired on 2 October 2022. As of today's date, you only have 66 days directly relevant to the arson and bail offence available to you by way of pre-sentence detention.
102In my view, the correct approach is to consider what would have been an appropriate total sentence for the offending dealt with in the Magistrates' Court and that before me, and then for this court to impose a sentence which is consistent with that determination. This means that this court may be placed in circumstances where it is necessary to impose a disproportionately lenient sentence in order to avoid a total sentence across all matters which is disproportionate. It requires an assessment of the overall or total criminality.
103The chronology before me and court listings have meant that you have lost the benefit of concurrency which might otherwise have been granted. I accept this has relevance to the sentencing exercise.
104Your counsel contends that had all matters been in a position to be dealt with at the same time then any sentence imposed would not be markedly greater than the three years imposed upon you on 9 September 2020.
105I accept that this is probably close to correct.
Prospects of rehabilitation
106In terms of your prospects of rehabilitation, it may well be that your lengthy period in custody to date - the longest you have been required to serve to date - and in difficult circumstances brought about by the COVID-19 pandemic, is capable of having greater impact on you in terms of both a sanction and deterrent. Only time will tell.
107Records tendered from Justice Health indicate that in December 2021 you were asking for an assessment with a psychiatrist. You had reconsidered your involvement with counselling and courses and were focusing on making lifestyle changes. You were described as being willing to accept the recommended help and advice.
108Despite the reported difficulties during COVID-19, you have successfully completed a number of therapeutic programs which include a 55-hour semi‑intensive alcohol and drug program, ‘Talking Change’ program, and an 'Ice and Me' program.
109You have also undertaken a 'Stop and Go' course with Kangan TAFE in an effort to increase your employability.
110You are currently prescribed Zyban in an attempt to manage your attention deficit hyperactivity disorder and continue to be prescribed Lamotrigine, a mood stabiliser. You also receive methadone to deal with your drug addiction.
111You have written your own letter to the court making a public apology to the victim, the community and the County Court for your criminal behaviour. You express your remorse. You also express a desire to change your future and to not reoffend. Whilst such communications tend to be self-serving, you are encouraged to maintain the sentiments, insights, and desire for a more positive future you expressed.
112I do accept that you are well supported by your mother, Melissa Smith. Whilst physically visiting you in custody has been difficult, she has kept in touch via daily phone calls and weekly video calls. In addition, your mother has undertaken monthly family support sessions with you and a counsellor in a program operated by Corrections and facilitated remotely.
113Your mother has also provided a reference dated 16 February 2022.
114In that letter, she speaks of seeing a dramatic change in your attitude and behaviour. Your mother believes you have begun to see greater meaning in life and that you show an understanding that consequences will follow poor decision-making. You have begun to set goals and work towards them. She also expresses concern for your mental health related to any extended period in prison. Your mother indicates that she will ensure your use of prescribed medication, attendances on treating professionals and family counselling. Your mother speaks of her support as well as that of your stepfather and sisters and a range of other close family members.
115Your mother gave evidence in your initial plea hearing on 19 September 2022. She was an impressive witness. She spoke of your good relationship with your sisters. She gave evidence of the benefits for each of you in doing family counselling. You now have an understanding that your actions affect the whole family. Mrs Smith believes that you have changed your attitude to being in custody and getting into trouble. You feel motivated to stay away from drug use. You now aim to get a job and change your friendship group. You do have an offer of employment as a labourer with a family friend, Aaron Baxter. Mr Baxter has provided a letter confirming this.
116You are able to reside with your mother upon release from custody. I accept that this is a supportive and prosocial environment.
117The combination of your low intellectual functioning and possible acquired brain injury, and the way these two conditions present in combination, raise obvious concerns for the need for community protection from you, as I have already expressed. You were 24 years of age at the time of this offending and were therefore still relatively youthful. There remains a basis for some continued emphasis on rehabilitation.
118In my assessment, your overall prospects of rehabilitation do remain guarded but if you can remain drug free, maintain your current insight and utilize the continuing supports of family, those prospects may well improve.
Submissions
119At your initial plea hearing held 19 September 2022, the submissions made on your behalf as to sentence conceded a term of imprisonment but suggested any term not extend your sentence much beyond the three years you had at that stage almost completed.
120The Crown's position at that time was that a head sentence and a non-parole period should be fixed.
121As already referred, your plea was adjourned until 11 November 2022 in order that a neuropsychological assessment of you could be undertaken. I have referred to that document and assessment at an earlier stage.
122On that date, the submission made on your behalf as to sentence was that a term of imprisonment in combination with a community corrections order would properly reflect all sentencing considerations. This was based on the contents of Mr Martin Jackson's assessment. The Crown concur with that submission. I certainly accept that a community corrections order is capable of fostering rehabilitation and represents a means to provide for community protection in the supports and treatment that can be provided as well as the quick response to any non‑compliance.
123Accordingly, and in order to be better informed, I ordered an assessment as to your suitability for a community corrections order.
124An assessment outcome report dated 18 November 2022 has been provided. That report details that you have previously been subject to five community corrections orders, all of which have been contravened. You did successfully complete a parole order in 2018. You were cooperative with the assessment process and presented as being remorseful for your actions.
125Correctional services, however, had concerns given your past non-compliance with community corrections orders. On balance, you were assessed as being an unsuitable candidate.
126Section 37 of the Sentencing Act obliges me to seek an assessment when considering the imposition of such an order. I do not see the recommendations made in the assessment undertaken as a basis to form the view that you should not be subjected to such an order.
Sentencing
127I will make the ancillary order, if I have not already, sought for disposal of the red jerry can. Ms Dixon and Mr Johnston, I will just check with each of you whether there has been any factual errors - that I have referred to any matters that you wish to raise at this stage?
128MR JOHNSTON: Not from my perspective, Your Honour.
129HER HONOUR: Thank you very much.
130MS DIXON: I am not sure whether I - my hearing is at fault but I think I might have heard Your Honour say that Mr Sampson was 28. He is actually 26. It might be my hearing though.
131HER HONOUR: I did say 28. So thank you very much. I will correct that figure accordingly.
132MS DIXON: Thank you, Your Honour. That is all from me.
133HER HONOUR: Thank you.
134The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must 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.
135I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and are safely reintegrated into society.
136I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality.
137For the summary charge of commit indictable offence whilst on bail, s16(3C) requires that 'every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.'
138For that particular charge, you do have a relevant history; and for that particular charge, you are convicted and sentenced to one month's imprisonment. The totality principle remains relevant to this exercise. Accordingly, that term will be concurrent with the sentence I am otherwise to impose.
139On the charge of arson, you are convicted and sentenced to six months imprisonment.
140I reckon 66 days as having already been served.
141That sentence on the charge of arson is in combination with the community corrections order of two years duration. During this time you are to submit to:
(a) Supervision by Community Correctional Services;
(b) To undergo the performance of 120 hours of community work;
(c) To undergo treatment and rehabilitation for drug addiction;
(d) To undergo programs as directed to reduce offending; and
(e) To submit for judicial monitoring. That means you will come back before me on a regular basis so I can check how you are going and to also check in terms of the Office of Corrections implementing treatment programs as I have required.
(f) 75 hours of treatment conditions can offset the community work. That is, the more treatment, the less community work.
142You should know this by now but in addition to the conditions I have imposed, there are standard conditions. The first and foremost of those is that you must not commit any other offences during the two-year period which could be punished by imprisonment. You must also report within two working days of your release to the nearest community corrections office. You are required to advise your supervising office of any change of address of where you are living or working and you must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a corrections officer. You are not able to leave the State of Victoria without prior permission of your corrections office.
143In my view, this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend by an offence punishable by imprisonment whilst it is in place. If you do, you will have to appear before me for breaching the order and I may have to resentence you on the original charge and to sentence you for a charge of breaching the order.
144Now, I can only place you on that order, Mr Sampson, if you agree to be placed on that order. If you wish to speak to Ms Dixon privately, you will be given the opportunity to do so. Do you want to speak to Ms Dixon?
145OFFENDER: No, no, I agree to the order.
146HER HONOUR: All right.
147Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. It is somewhat artificial given the weight I have given to other factors but if not for your pleas of guilty, I would have sentenced you to two years and four months with a minimum of 20 months before being eligible for parole.
148Anything arising or anything I have missed, Mr Johnston?
149MR JOHNSTON: No, nothing.
150HER HONOUR: Ms Dixon?
151MS DIXON: No, Your Honour.
152HER HONOUR: All right. Well, obviously, your client is going to be required to sign that order as will I. All right. That will obviously have to be sent to your client given his location, so perhaps I can sign that off the Bench and I will give you a chance to speak with your client with his family.
153MS DIXON: Thank you very much, Your Honour.
154HER HONOUR: All right. I think I am standing down until 2.30. Great. Thanks very much. And thank you to each of you for your assistance. You were both of enormous assistance. And certainly, Mr Johnston, I appreciated your attention and your overall fairness in this matter.
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