Director of Public Prosecutions v Tierney (a pseudonym)
[2023] VCC 640
•27 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELISSA TIERNEY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Koori Court Plea – Mildura Further Pleas & Sentence - Melbourne | |
DATE OF HEARING: | Koori Court Plea - 27 June 2022 | |
DATE OF SENTENCE: | 27 April 2023 | |
CASE MAY BE CITED AS: | DPP v Tierney (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 640 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Arson; Koori Court
Legislation Cited: Sentencing Act 1991; Mental Health Act 2014
Cases Cited:DPP v Derby [2007] 171 A Crim R 302; Martin v The Queen [2015]
VSCA 248; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021]
VSCA 169; Director of Public Prosecutions v Heyfron [2019] VSCA 130; R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428
Sentence: Adjourned Undertaking for a period of three years with conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mx J. van Dyk | Office of Public Prosecutions |
| For the Accused | Ms O. Thompson | Law and Advocacy Centre for Women |
HIS HONOUR:
Introduction
1Melissa Tierney[1], you have pleaded guilty to one charge of arson, which carries a maximum penalty of 15 years' imprisonment.
[1] A pseudonym.
2At your arraignment on 27 June 2022, in addition to pleading guilty to this charge, you admitted your criminal history.
Circumstances of the Offending
3The circumstances of your offending were set out in the summary of prosecution opening for plea dated 23 May 2022. That document was tendered at your plea hearing and marked Exhibit 1.
4Your offending can be briefly summarised. On 25 May 2021, some four months prior to your offending, you entered into a tenancy agreement with the Department of Families, Fairness and Housing to reside at a unit in Swan Hill, that tenancy commencing on 30 May 2021.
5On 20 September 2021, you were home alone at this unit. At about 10:50 pm that evening, your neighbour and her granddaughter heard loud banging and you shouting from inside your unit. The neighbour also heard what she thought were items being thrown around the unit. Shortly afterwards, your neighbour called the Swan Hill Police Station requesting the police attend and conduct a welfare check on you. Shortly after making that phone call, your neighbour smelt smoke and observed your unit to be on fire. She attempted to call and text you, with no response.
6Just after 11:00 pm police arrived and observed the unit engulfed in flames. The Country Fire Authority attended and extinguished the fire. Subsequent investigations led to the fire being deemed suspicious.
7At about 2:30 am on 21 September 2021, you attended the Swan Hill Police Station and admitted to setting the unit on fire. You were interviewed by police, with an independent third person being present. In that interview, you referred to hearing a noise which sounded like someone opening your electricity box outside the premises and turning the electricity off, when you were cooking at the stove. You became angry at this and proceeded to pour cooking oil over the kitchen area, the couch and the living room area before unsuccessfully attempting to ignite the cooking oil with a barbecue lighter, and you therefore ignited a plastic bag underneath the couch and a paper bag on a pile of clothes using the same lighter, which resulted in the fire starting. You said that you left the premises and walked to a friend's place nearby.
8You were ultimately remanded in custody on that day and remained in custody until being granted bail at the Mildura Magistrates' Court on 1 December 2021, 73 days later. You have remained on bail since this time.
9Following appropriate examinations and investigations, an estimate of the value of the damage to the unit was obtained, totalling $212,884.85.
Nature and Gravity of the Offending
10Arson is a serious crime, carrying with it a maximum penalty of 15 years' imprisonment. The damage to and destruction of a home by arson carries with it great risks for nearby buildings, their occupants, and those members of our community who put themselves at risk by serving in emergency services. A sentence of immediate imprisonment is often appropriate in such cases.[2] General deterrence will generally loom large as a sentencing consideration for the crime of arson.[3]
[2]DPP v Derby [2007] 171 A Crim R 302 at [21].
[3]Martin v The Queen [2015] VSCA 248 at [26].
11I agree with the prosecution that your offending equates to a mid-range example of the offence of arson. The damage to the unit was considerable, with the estimated cost exceeding $200,000. The offending necessarily exposed others to the risk of injury given the proximity to other units. The unit was a DFFH property, essentially State subsidised housing of which there is a limited supply, and what supplies there are invariably assist vulnerable members of the community. The destruction of the property at your hand constitutes a considerable drain on public resources. However, I accept that the method used by you to light the fire was fairly rudimentary, and there is no evidence that this was planned or premeditated on your part. Nor is there any suggestion in this case that you were motivated by revenge or some other concerning antisocial motive.
Your Level of Culpability or Responsibility for the Offending
12As accepted by the prosecution, your level of culpability is significantly diminished due to the fact that you were suffering from schizophrenia at the time of the offending. Significantly, a Forensicare psychiatric report dated 14 September 2022 referred to your schizophrenia as a pervasive psychiatric condition, and that your limited account of the offending suggested that you were experiencing active symptoms of this condition in the form of auditory hallucinations at the time of the offending, including a command auditory hallucination to set a fire.[4] I am satisfied therefore that your mental impairment at the time of the offending very much impacted upon your offending behaviour, meaning that your responsibility for this serious offending is considerably diminished. However, you were at the time of the offending subject to a Community Correction Order imposed at the Swan Hill Magistrates' Court on 19 May 2021, and this constitutes an aggravating feature with regards to your offending and your responsibility for it.
[4]Forensicare Psychiatric Pre-Sentence Court Report of Dr Gregory Lysenko and Dr Sobia Khan dated 14 September 2022 at [44].
Chronology
13As I have indicated, having been remanded in custody on 21 September 2021, you were bailed at the Mildura Magistrates' Court on 1 December 2021, and have remained on bail since. Your matter resolved to a plea of guilty at the third committal mention on 16 February 2022, and it is accepted by the prosecution that this represents an early plea.
14The matter proceeded before me in the Koori Court Division of the County Court sitting at Mildura on 27 June 2022. You appeared again before me on 4 October 2022 for a further plea hearing, where I deferred sentence. The matter returned before me on 17 April 2023, prior to sentencing today.
Personal Circumstances
15You are now 30 years of age. You were born in Swan Hill and grew up as I understand it in both Swan Hill and South Australia. Both of your parents were Aboriginal.
16You have what can only be described as a history of profound trauma and disadvantage. Whilst I do not seek to cause you unnecessary discomfort given your vulnerable mental health status, it is important to briefly outline your personal circumstances and background history.
17Both of your parents are now deceased. According to various collateral material tendered on your behalf, your father died following a physical assault many years ago. You were removed from your mother's care by the Department of Human Services when you were just a toddler, due to concerns of neglect. You had no contact with your biological mother from this time, and she committed suicide some four years ago. You were, it seems, raised by your two aunties and an uncle. A functional capacity report from DLS Allied Health dated 14 April 2022 refers, in the context of your family history, to a documented history of suffering significant family violence and profound trauma growing up, including physical and sexual assault and exploitation, perpetrated by family members among others. The report also refers to significant family conflict between you and your extended family, with you having been taken advantage of and financially exploited throughout your life.
18You have it seems a substance use history dating back from your late teenage years. The DLS Allied Health report, Exhibit B at your plea hearing, refers to a documented history of drug induced psychosis and polysubstance use disorder, in relation to alcohol, cannabis and methamphetamine.
19You have a well-documented history with regards to mental health challenges, including a formal diagnosis of schizophrenia. When assessed by Forensicare, you acknowledged that you had a diagnosis of schizophrenia, and that you first became unwell at the age of 17 when you started to hear voices. You were first admitted to the Bendigo Health Psychiatric Unit in 2011. Seventeen psychiatric admissions to this service have been recorded, with a formal diagnosis of schizophrenia. The symptoms of your schizophrenia have included experiencing auditory hallucinations, persecutory delusions, and disorganisation, with associated features including agitation, self-harming behaviours and neglect of self-care.[5] You have been the subject of multiple inpatient treatment orders and community treatment orders under the Mental Health Act 2014. You have a history of poor compliance with treatment. Those difficulties have been associated with comorbid substance use, including intravenous methamphetamine use. You have been treated with various antipsychotic medications.
[5]Ibid at [25].
20Unsurprisingly, you have an extremely limited history of employment, with your last employment being in your teenage years in an art gallery and in a fabric store.
21As set out in your criminal history, you have multiple prior findings of guilt with regards to various types of offending including assault, criminal damage, dishonesty offending, contravention of a family violence order, and various bail offences. Many of your previous penalties have been imposed without conviction, and clearly have involved mental health interventions. As I have indicated, some months prior to the arson offence you were placed on a Community Correction Order at the Swan Hill Magistrates' Court for offending which included assault and threatening to cause serious injury. That Community Correction Order was subsequently the subject of contravention proceedings, and on 7 March 2022 the order was cancelled with no further action, and the police charges which presumably triggered the contravention were found proven and you were discharged.
22As indicated in the Forensicare report, you have a number of other medical issues, including Type 2 diabetes, gastroesophageal reflux disease, iron deficiency, Vitamin D deficiency, and cholesterol issues.[6]
[6] Ibid at [22].
23Returning to the DLS Allied Health report from April 2022, you were found to have a significant psychosocial disability with extreme functional impairment requiring a high level of support. You were found to have a limited friendship network and it was opined that you are extremely vulnerable to influence and exploitation by others.
24The Forensicare discharge summary prepared on 31 November 2021, Exhibit E at your plea hearing, documents your mental health progress whilst on remand for this matter. Given your documented history you were, it seems, placed in the Marmak Unit at the Dame Phyllis Frost Centre, a unit which provides intensive mental health supports to vulnerable inmates. Whilst you generally appeared to settle well at the unit, you were noted at times to have significant risks with regards to self-harm, particularly in the context of your anxieties associated with this legal process.
25Since shortly after being granted bail in relation to this matter, you have essentially been under the care and supervision of Bendigo Health, who have played an active role in each of the substantive hearings before me, dating back to the Koori Court plea hearing on 27 June 2022. According to the treatment report from Consultant Psychiatrist, Dr Teslin Mathew, and Hospital Medical Officer, Dr Swathi Ramdave, both from the Extended Care Unit at the Bendigo Hospital, dated 8 July 2022, Exhibit F at your plea hearing, you have been at the Extended Care Unit of the Bendigo Hospital since 22 December 2021 under an inpatient treatment order pursuant to the Mental Health Tribunal. You have been under the care of Dr Mathew. According to that report, as at July 2022 you had shown improvement in your mental state in response to medications during the admission, but it was noted that you would require further inpatient admission for a period of stabilisation of mental state and optimisation of your medications. It was foreshadowed then that you would likely be discharged into the community on a Community Treatment Order once you are at your baseline mental state, which will help facilitate adherence to your medication in the long term and prevent relapse following discharge. Dr Mathew referred to the support you will have from your NDIS support workers in the community to help with activities of daily living and skills building, and to notify your case manager if they notice a deterioration in your mental health.
26Based upon the various reports from Bendigo Health, together with verbal updates from representatives from the Extended Care Unit at your various court hearings, I am satisfied that you are very well cared for and monitored in your current environment, and that there is a realistic long-term plan in place for your eventual reintegration into the broader community. Your medication regime is well implemented through Bendigo Health. You have regular depot injections with regards to your schizophrenia. According to the most recent report from Bendigo Health dated 8 February 2023, Exhibit I at your plea hearing, once suitable accommodation is located, you will trial progressive leave from the hospital to your new accommodation with NDIS supports including overnight leave for an extended period of time until your eventual discharge. You will be case managed by the local adult community mental health team with appropriate linkages to district nursing who will supervise your psychiatric medication compliance and a local GP who will provide ongoing medical care. You currently receive supports through NDIS, and you have a support coordinator, Ms Kingwill, who will continue to work with you in terms of organising your NDIS supports. You currently have regular contact with various NDIS support workers on multiple days each week. On 21 February 2023 VCAT appointed the Public Advocate to make decisions for you in relation to accommodation and services, and according to a representative from the Office of the Public Advocate, you are in the best position ever to be safely supported in the community. In that regard, I acknowledge the presence today of Ms Rebecca Kelly, an Aboriginal Engagement Officer who informs me that she has become involved pursuant to the Office of the Public Advocate, further highlighting the wrap around services assisting you at present.
Sentencing Factors and Principles
27In formulating an appropriate sentence in your case, I have taken into consideration a number of factors.
28As I have already explained, your background is one of profound trauma, deprivation and disadvantage. The effects of this do not diminish with the passage of time or repeated offending. In accordance with the Bugmy[7] principles, I have given full weight to your deprived background in the sentencing exercise, particularly with regard to your moral culpability for this offending, which I regard as significantly reduced because of your background.
[7] Bugmy v R (2013) 249 CLR 571.
29You have a relatively limited criminal history, which in my view is clearly connected to your ongoing mental health challenges, and your drug related problems. The penalties previously imposed have largely been therapeutic in nature. You have never been sentenced to a term of imprisonment.
30
You spent 73 days in custody in relation to this matter before being granted bail. This period took place in the context of the COVID-19 pandemic, and it's now
well-known impacts upon the custodial system, with significant restrictions upon freedom of movement, and access to visits, activities, and therapeutic endeavours. As I have explained, you spent time at the Marmak Unit, in the context of your mental health challenges. I have no doubt that this would have been a very challenging and probably frightening time for you.
31I accept that you have pleaded guilty at the earliest stage in proceedings, at the committal mention stage. The utilitarian value of your early plea of guilty is significant, and further enhanced by virtue of the fact that it was entered in the context of the COVID-19 pandemic, and the significant impacts upon the administration of criminal justice in this State, with the delays associated with the finalisation of cases in this court now well-known. This is a significant mitigatory matter warranting an observable discount on penalty.[8]
[8] Worboyes v R [2021] VSCA 169.
32I am satisfied that a further sentencing discount is warranted by virtue of your remorse. You handed yourself into police promptly after the offending, and your interview with police contained fulsome admissions with regards to your conduct. In combination with your early plea of guilty, I am satisfied therefore that you are indeed sorry for what you have done, warranting a mitigatory allowance.
33On 27 June 2022, you participated in a sentencing conversation, in the presence of Aboriginal Elders, as part of the Koori Court plea hearing procedure. This was something that you chose to do. Given your particular personal challenges, your willingness to participate in what was no doubt a confronting process for you very much stands to your credit. In my view, you did your very best during the sentencing conversation with the Elders. You were engaged, maintained good eye contact with the Elders, and importantly, you were willing to discuss personal aspects of your life. I was very impressed with your conduct during that conversation, Ms Tierney, and I formed the view that you were conscientiously participating and taking responsibility for your actions. As acknowledged by the Court of Appeal, meaningful engagement in the Koori Court sentencing conversation may operate as a mitigating circumstance. You faced the shaming that is an integral part of those proceedings and you were prepared to be accountable for your offending. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative.[9]
[9]Director of Public Prosecutions v Heyfron [2019] VSCA 130 at [66] – [69].
34I am satisfied having regard to your mental health challenges that your impaired mental functioning brings into play all of the well-known Verdins[10] principles. As I have stated previously, your moral culpability is reduced. Your mental health condition has a bearing upon the kind of sentence to be imposed. The degree to which any sentence should reflect the principle of general deterrence must be significantly moderated. You are not in my view a particularly appropriate vehicle for specific deterrence. In light of your mental health condition, a sentence of imprisonment would in my view weigh more heavily upon you than it would on a person in normal health. Furthermore, I am satisfied that there would be a serious risk of imprisonment having a significant adverse effect upon you.
[10] R v Verdins & Ors (2007) 16 VR 269.
35I have also taken into consideration your progress on bail, and the protective regime that is now in place. Put simply, in my view nothing more could be done to appropriately support you, and as a result, appropriately protect the community. According to the psychiatric report from Forensicare, you are unlikely to have the capacity to engage meaningfully in formal psychological interventions to address your limited insight into your psychiatric condition, and other related matters. You are unlikely to engage meaningfully in formal drug and alcohol counselling. In my view, it is simply unrealistic to expect you to comply with a Community Correction Order. Indeed in my view, to impose one, would set you up for failure and would likely create an unacceptable risk of interruption to your current treatment and supervisory regime, which is clearly working for you.
36As always, I have taken into consideration current sentencing practices for the crime of arson, and in that regard both prosecution and defence provided relevant authorities, noting that sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past, and current sentencing practices represent just one of the relevant sentencing factors to be considered.[11]
[11] Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428 at [83].
Respective Parties’ Submissions
37Your counsel submitted that in all the circumstances of your case, an adjourned undertaking was appropriate given your unique personal circumstances and the ongoing supports in place. In a submission reflective in my view of the very highest standards of prosecutorial conduct, Mx Van Dyk on behalf of the Director accepted that an adjourned undertaking in the unusual circumstances of your case would be within range.
Sentence to be Imposed
38Having considered all of the relevant matters, factors and principles carefully, I have come to the conclusion that this is a most unusual case. The offending of course is serious and concerning. However, given the powerful constellation of mitigatory factors in this case, I have determined that an adjourned undertaking with conditions is the appropriate, indeed just, sentence. Ms Tierney, I am about to conclude my remarks and I will do so by announcing the sentence or the penalty to be imposed with regards to the charge before me.
39On the charge of arson, you are convicted, and pursuant to s72 of the Sentencing Act 1991, I will adjourn the proceeding for a period of 3 years upon you giving an undertaking with conditions attached. Those conditions will be:
(1) that you attend before this court if called upon to do so during the period of the adjournment;
(2) that you be of good behaviour during the period of the adjournment; and
(3) that you comply with any treatment recommendations and directions of Bendigo Health or their nominee, and any requirements pursuant to the Mental Health Act 2014 with regards to your ongoing treatment.
40Ms Thompson, I am going to stand down temporarily to allow you to have a chat with Ms Tierney, just to ensure that she understands what I have done and perhaps also to speak with those with her, to see if we can facilitate the documentation going straight to her location for signing, and then coming back for me to countersign. Before I do that, any issues with regards to the conditions attached? I have constructed them based on my understanding of what the current regimen is. Any issues with that?
41MS THOMPSON: Not at all, Your Honour.
42HIS HONOUR: Thank you. Mx Van Dyk, any issues from the prosecution's perspective?
43MX VAN DYK: No, Your Honour.
44HIS HONOUR: There is no 6AAA declaration required, as I can see it. Is that agreed?
45MX VAN DYK: Yes. Sorry, Your Honour, yes, no you are right, yes.
46HIS HONOUR: Yes, it's not a custodial sentence, not a CCO of a certain length and not a fine of a certain amount.
47MX VAN DYK: Yes.
48HIS HONOUR: It's one of those rare cases that doesn't require a fairly artificial exercise to be undertaken. There's a disposal order being sought here, the lighter, no opposition to that being made?
49MS THOMPSON: There's no opposition, Your Honour.
50HIS HONOUR: I will make that disposal order. All right, I will stand down temporarily. Ms Tierney, I am just going to let you have a chat to your barrister, just to make sure you understand what I have done and I will come back on the Bench in a few minutes and I will finalise the matter.
51(Short adjournment.)
52HIS HONOUR: How did you go?
53MS THOMPSON: Yes, that's all been explained to Ms Tierney and she consents to giving that undertaking.
54HIS HONOUR: Yes. Yes, all right, thanks. Ms Tierney, I understand you have had a chat to Olivia, your lawyer, today.
55OFFENDER: Yes.
56HIS HONOUR: And you understand what's happened and you agree to comply with this Order that I'm imposing today.
57OFFENDER: Yes.
58HIS HONOUR: All right, thanks very much. I understand also the representatives at the other end will assist in terms of getting the document signed and sent back.
59MS THOMPSON: Yes, they will, Your Honour.
60HIS HONOUR: And it will be countersigned and provided to the parties at some stage today hopefully. All right, thanks. Ms Tierney, that's all, your case is now finished and so you won't see me again, so good luck. Make sure you stay out of trouble, won't you.
61OFFENDER: Yes, I'll make sure.
62HIS HONOUR: Thank you very much. All right, can I commend both of you, Ms Thompson first for the care and detail you've clearly shown to your client. It's very much appreciated by the Court. Mx Van Dyk, can I commend you for conducting this matter, dispensing your duties as a prosecutor entirely appropriately and at the same time displaying obvious compassion and empathy. You are very much a credit to the Office of the Public Prosecutions.
63MX VAN DYK: Thank you, Your Honour. Thank you very much.
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