Director of Public Prosecutions v Tormey

[2023] VCC 28

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01156

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA TORMEY

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2022
DATE OF SENTENCE:	20 January 2023
CASE MAY BE CITED AS:	DPP v Tormey
MEDIUM NEUTRAL CITATION:	[2023] VCC 28

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Make threat to kill – Criminal damage by fire – Arson – Plea of guilty – Worboyes – Bugmy – Verdins – Covid-19 pandemic – Serious violent offender – Serious arson offender.

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

Cases Cited:Brown v The Queen [2020] VSCA 212; Bugmy v The Queen (2013) 249 CLR 571; DPP v Derby [2007] VSCA 92; DPP v Hermann [2021] VSCA 160; DPP v Tormey [2010] VCC 1788; Marrah v The Queen [2014] VSCA 119; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Two years and ten months’ imprisonment with a non-parole period of one year and eight month’s imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	E. Fargher	The Office of Public Prosecutions
For the Accused	J Swinney	Chris McLennan & Co

HER HONOUR:

1Joshua Tormey, you have pleaded guilty to two charges of make threat to kill and one charge of criminal damage by fire (arson). You also agreed to this Court hearing and pleaded guilty one summary charge of commit an indictable offence whilst on bail.

2The full circumstances of your offending is set out in the prosecution opening of 29 August 2022.

Circumstances of the offending

3On Wednesday 22 September 2021, at approximately 11.00am the victim, your mother, Ms Kayleen Tormey, was asleep in her bedroom. You started making demands for her phone number. She gave it to you and then told you to leave the house and sober up. A verbal altercation followed and you left the house to purchase some alcohol. Approximately 45 minutes later you returned to her address. There was a further verbal argument and Ms Tormey told you to leave and return once you had sobered up. You responded “If you set me up with someone, I will fucking kill you” (Charge 1 – Make Threat to Kill).

4You continued to be verbally abusive and called Ms Tormey derogatory names. Ms Tormey left the address as she was concerned for her safety and attended her neighbours address. She called you and told you to leave the address.  She then called triple zero.

5At approximately 5.14pm, police attended Ms Tormey’s property.  They observed you exit and then return to the property and called out to you but you ignored them. After a short time, they left to make further inquiries. 

6At approximately 5.22pm, you contacted the second victim – your sister, Molly Boxell-Tormey, utilising the FaceTime application.

7You asked Ms Boxell-Tormey where your mother was. After a brief discussion as to why Ms Tormey had contacted the police, you said “Youse are fucked, I am coming down, youse are dead”. Ms Boxell-Tormey ended the call at this point  (Charge 2 – Make Threat to Kill).

8At approximately 6.45pm, you started a fire inside the north-eastern bedroom by igniting combustible materials on the bed (Charge 3 - Arson).

9You then left the address. Minutes later witnesses observed flames coming from the bedroom window and called triple zero. Subsequently, Fire Services attended the property and at 7.02pm the fire was extinguished.

10A forensic examination of the property is detailed in the prosecution opening.  The examination indicated that the fire started in the northern bedroom by the ignition of available materials. The source of ignition was not determined. The most probable source was direct ignition using a match or cigarette lighter.

11The northern bedroom sustained the most fire damage with moderate to heavy charring to the contents, especially the furnishings. The ceiling had collapsed, and the render had fallen from the walls.  Most of the combustible material on the mattress had been consumed by the fire. The timber frame along the eastern wall was burnt. Both sets of drawers were burnt but intact, and the television was burnt, however the internal electrical components were present and essentially unburnt. The remaining rooms of the house had sustained minor to moderate heat and fire damage, and there was extensive sooting throughout.

12On 26 September 2021 you were arrested by police, as outlined in the prosecution opening. You have been on remand since this date.  

Victim Impact

13It is clear that the loss your victim, your mother, Ms Kayleen Tormey, has suffered has been most traumatic for her.  Her victim impact statement speaks of her grief, loneliness, anxiety and pain. She already suffers from a range of psychiatric conditions and this has compounded them; she states ‘I’d say this has doubly made life that more difficult to cope.’  Her quality of life has ‘hit rock bottom’.  She lost everything; including many things that had clear sentimental and important value to her.  She states ‘I lost everything from household items down to not even owning a pair of shoes’.  It is clear that your offending has had a devastating impact on her. Your Counsel, Ms Swiney, stated on your behalf that you recognise this and that your mother’s victim impact statement, read out in open court, had a powerful effect on you and that you are genuinely remorseful for what you did and its consequences.

Gravity of the offending

14The charges of arson and make threat to kill are serious criminal offences, as reflected by the maximum penalties set by Parliament. 

15The damage you caused to your mother’s home, which was owned by DHHS, was extensive, as captured in the exhibited bundle of photographs (Exhibit B) and as outlined in both the prosecution opening and submissions.  Also, there was significant unquantifiable loss clearly suffered by your mother. I take this into account in assessing the gravity of your offending.   

16The case of Derby[1] was referred to by the prosecution in support of the proposition that your offending is aggravated by the family violence context in which it occurred. The Court of Appeal made clear that the employment of violence, almost invariably by disappointed males, directed against former or desired partners to express anger or as a form of retribution because of a relationship failure or perceived rejection would not be tolerated. I am guided by these general principles but I accept your Counsel’s submission that your case is different. While your offending occurred within a family context, your family history is one of childhood neglect and abuse and you were actively psychotic at the time of your offending, as opposed to being motivated by a sense of grievance, anger or entitlement. 

[1] DPP v Derby [2007] VSCA 92.

17I accept, as conceded by the prosecution, that in your case, there was limited, if indeed any, planning to the arson. This is in stark contrast to more serious cases where there has been premeditation in the sense that the offending was the subject of planning and preparation by the obtaining of accelerants and the like.

18In relation to the threat to kill charges, I accept that the threat placed real fear in your victims. I take into account that your offending lacks aggravating features that commonly accompany this charge, including the use of weapons, overstanding tactics and planning and pre-meditation. 

19Given your criminal history you fall to be sentenced as a serious violent offender on Charges 1 and 2 and a serious arson offender on Charge 3, pursuant to Part 2A of the Sentencing Act 1991 (Vic) (the Act). 

20Therefore s6E of the Act must be regarded as moderating and limiting totality, though the principle remains relevant in your case, as does proportionality. In determining the length of sentence to be imposed on these charges community protection must be the principal sentencing purpose.

21On your behalf it was submitted that in the months leading up to your offending your circumstances had deteriorated, and you describe yourself as being in a ‘bad place’.  Upon your last release from custody you had hoped to reunite with your ex-partner and young daughter but this did not eventuate. You returned to Melbourne, distressed and disappointed, and turned to drugs and alcohol. Your alcohol use increased significantly and for weeks prior to your offending while you had not used any drugs you had been drinking heavily.

22You reported to consultant psychiatrist Dr David Trainor that during this period you felt that ‘there were cameras everywhere … it felt like I was being watched …. It felt like the Truman show … I didn’t know what was real … the voices became really intense … sometimes they’d be good but others would tell me I was worthless … I would hear my sister, my mother and loads of other people talking.’

23On the day of the offending you were heavily intoxicated with alcohol. You couldn’t recall threatening your mother but recalled smashing up the police and lighting the room on fire. You were trying to find the cameras in your room and you stated ‘I was sick of being watched all the time…’.  

24As discussed at the plea hearing a number of complex issues arise in your case that are relevant to sentencing and also to an assessment of your moral culpability.  I will address these matters shortly.

Plea of guilty

25Your matter has a protracted history. It was originally in the Magistrates’ Court but in February 2022 it was uplifted to the committal stream. 

26After the matter resolved to a plea, an unsuccessful application was made for it to proceed through the Drug and Alcohol Treatment Court. 

27Notwithstanding the history, your plea of guilty is one entered at the earliest opportunity. This entitles you to a significant discount in sentence. By your plea you have demonstrated a willingness to facilitate the course of justice. Your plea has significant utilitarian value, particularly in the current climate and will attract a greater amelioration in sentence in line with the Worboyes[2] principles.

[2] Worboyes v The Queen [2021] VSCA 169.

28I also accept that your plea of guilty demonstrates remorse on your part. You acknowledged to Mr Crewdson deep regret about all of the offending and particularly the fire.

Personal circumstances

29You are now aged 32 years old. Your personal history is marked by significant disadvantage, deprivation and instability.

30You have never known your biological father. Your mother had a total of four children to different fathers. It is clear that she suffers from significant mental health challenges. Your family is dislocated and in recent times you were only having contact with your younger sister Molly. As a result of your offending, these relationships are now fractured. There are current intervention orders in place protecting your family.  You are hopeful of one day repairing these relationships, in particular with your sister. 

31You have had two step fathers, both of whom are now dead. You describe one as an alcoholic who had cancer and died of a heart attack. The other committed suicide when you were about eight years of age. Both these men were abusive to your mother and to you and your siblings. 

32You were repeatedly beaten by your mother and stepfather as a child. You told psychologist Mr Michael Crewdson ‘I couldn’t go to the end of year six graduation because I was covered in bruises’. You were also sexually abused by your stepfathers, as was at least one of your other siblings.

33From around the age of eight you were placed in foster care which ultimately caused you to feel abandoned by your mother. You were made ward of State and placed in a series of secure residential care facilities. As Mr Crewdson notes in his report at paragraph ten this increased ‘the odds of being involved in the juvenile criminal justice system’ and ‘was also the introduction to [your] pattern of polysubstance abuse’. 

34You began drinking alcohol and experimenting with drugs in your early teens.  Methamphetamine and GHB were your preferred drug but abuse and dependence on alcohol has been a continuing and generally more destabilising substance.  When you were 17 years of age your best friend died which destabilised you even further. Your significant history of addiction issues cause you to meet the criteria for cannabis use disorder, stimulant use disorder, and alcohol use disorder in sustained remission, in a controlled environment as stated by Dr Trainor at paragraph 67 of their report.

35You left school at age 15. Mr Crewdson considers that there was a neurodevelopmental issue with the development of an attention deficit disorder, which affected your education. You told him ‘I couldn’t sit still. I couldn’t really concentrate. I mucked up … I was being bullied and laughed at’.

36You have previously been treated for drug induced psychosis, self-harming and suicide attempts. Your self-harming commenced when you were only a child. You describe yourself as slashing up, as being a loose cannon, impulsive and always running away from DHS. The Forensicare Mental Health summary of 7 December 2021 indicates that you have previously had multiple psychiatric hospital admissions in 2005 to 2016. In 2016 the diagnosis was noted as ‘schizophrenia unspecified’ and ‘borderline personality disorder’.

37You have a relevant prior criminal history in Victoria and New South Wales.  Since the age of 18 you have mostly been in and out of prison. In Victoria your history commenced in 2010 and you have been sentenced for a range of offending. In 2010 you were sentenced in this Court for a range of offences including arson.  This arson was committed when you were 19 years of age with your younger brother on a school and caused ‘extraordinary devastation’ in the sum of millions of dollars in damage.  You received a total sentence of three years’ imprisonment with a non-parole period of 12 months’ imprisonment. Your last Victorian prior was in 2015 for violent offending including make threat to kill.  You received a short term of imprisonment combined with a Community Corrections Order (CCO). 

38You subsequently went to Adelaide and then Sydney in 2016 where you met your partner and you enjoyed a couple of years of stability. You were working, obtained a mortgage with your partner, who was working as a nurse, and you also welcomed a baby daughter. Unfortunately, your circumstances again deteriorated and you turned to gambling, drug and alcohol use and became involved in criminal activity which led to your remand. 

39Following release from prison in New South Wales you ultimately returned to Melbourne and, as noted earlier, your circumstances declined and in particular your alcohol use significantly increased.   

Other mitigating factors

Bugmy principles

40I accept that you have suffered extreme deprivation and disadvantage as a child and young person and that the Bugmy[3] principles are enlivened in your case. As was noted in the reasons of this Court on 3 December 2010, you have had an ‘appalling start to life’[4]. Sensibly, there was no dispute between the parties that these principles apply to mitigate sentence and justify a reduction in the evaluation of your moral culpability[5].  Your background also assists to provide some context for what occurred.

[3] Bugmy v The Queen (2013) 249 CLR 571.

[4] DPP v Tormey [2010] VCC 1788; at paragraph 20.

[5] Marrah v The Queen [2014] VSCA 119.

41In his report Mr Crewdson states:

As for judgment at the time of the offending the actions need to be examined in the context of his history of mental illness with an initial presentation at 15 years of age when living in the Latrobe Valley; the effect of early trauma; and the development of his personality, a maladaptive ruminative cognitive style and the effects of drug abuse.

42Dr Trainor also refers to your traumatic and disturbed childhood and frequent physical, emotional and sexual abuse. At paragraph 66 he opines as follows:

It is likely that these childhood experiences resulted in chronic difficulties with impulsivity, emotional and anger dysregulation, lower levels of trust in others, an impaired ability to empathise, a more fragile sense of self and sensitivity to criticism, maladaptive methods of dealing with distress, and consequent problems with interpersonal relationships. As per the International Classification of Disease (ICD-11), Mr Tormey meets criteria for a Personality Disorder, with antisocial traits and borderline pattern.

43I accept that your experiences have played a significant and pervasive role in shaping your personality and behaviours. As noted in the case of Herrmann[6], ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured.’

[6] DPP v Hermann [2021] VSCA 160.

44Of course, the matters that decrease your moral culpability, also operate to increase the importance of community protection. This is a most relevant consideration here given your prior criminal history and the application of the serious offender provisions.

Verdins principles

45As already noted, you have an extraordinary history of mental health problems from a young age, including self-harm, which has attracted a range of different diagnosis. The current diagnosis is that of recurring substance induced psychotic disorder and a personality disorder, with antisocial traits and borderline pattern. Your personality disorder has likely arisen out of your deprived background which has resulted in chronic difficulties and maladaptive methods of dealing with distress. 

46Dr Trainor notes your psychiatric history and opines that ‘it is difficult to fully tease out if [you have] an enduring chronic psychotic illness such as schizophrenia, or if [your] recurring psychotic episodes are due to illicit substance use’. He concludes that while you are at risk of schizophrenia due to your family history on balance it is more likely that you have a recurring substance induced psychotic disorder.

47Dr Trainor opines that you were likely psychotic at the time of the offending secondary to substance use and that your delusional beliefs caused you to damage the room. Your substance use also likely increased your impulsivity and disinhibition and impaired your judgement. Mr Crewdson in his report notes ‘alcohol rather than drugs should be regarded as the dominant issue in his offending history.’  ‘It’s always been like that I’d be drunk and then something would happen’ he said.  While arguably it may be that you have some past insight into the effects of the excessive use of alcohol, in fairness, the prosecution made it clear that they were not seeking to rely upon this as an aggravating feature.

48After careful consideration, I accept the submission of both prosecution and defence Counsel that there is some scope for the reduction of your moral culpability for the offending, in accordance with relevant Verdins[7] principles. As discussed at the plea hearing, the evidence in your case is not as direct or as compelling as that presented in the case of Hermann, or I note the case of Brown v The Queen[8], which established a substantial causal link between the disorder and the offending. On the evidence before me however I accept the following: you have a personality disorder, the genesis of which is most likely your traumatic childhood; you are therefore more inclined or susceptible to using substances as a ‘maladaptive method of dealing with distress’ and in an attempt to ‘modulate emotional dysregulation’; and at the time of your offending, you were substance affected, and your alcohol consumption contributed to, or triggered, your psychotic state.

[7] R v Verdins [2007] VSCA 102.

[8] Brown v The Queen [2020] VSCA 212.

49In the circumstances of your case and on the basis of the evidence and the reports before me, I accept that there is some link between your personality disorder, your substance use and the psychosis you experienced at the time of your offending. The effect of an impairment on moral culpability is a matter of degree and in your case, while I will make some allowance for this, there needs to be a sensible moderation or reduction. In particular, given the way the factors relevant to your background, personality and mental health intersect and the difficulty in disentangling them, I am mindful of avoiding any ‘doubling up of the mitigatory effect’ of the Bugmy and Verdins principles.

50Also, and this was not in dispute between the parties, I accept that general deterrence should be moderated to make some allowance for your personality disorder and mental health issues.  In relation to specific deterrence, I accept that it remains an important consideration in your case and requires close attention. I take into account that the existence of your condition may mean that a term of imprisonment will weigh more heavily on you than it would on a person in normal health. As Mr Crewdson noted in his report, prison is not a good environment for anyone with any sort of mental health condition. In some ways you have benefited from the structure of the environment and its restrictions, but you are also at very real risk of institutionalisation.  I take all these matters into account in sentencing you.

Other factors in mitigation

51I take into account the delay, and the accompanying uncertainty, in your matter being finalised, as relied upon by your Counsel.  You have been on remand since your arrest and I also take into account the more onerous and restrictive conditions in custody that you have experienced, such as lockdowns, and the unique stressors on remand during the pandemic. Further, as already noted, I take into account in sentencing the purpose of preventing the risk of institutionalisation and facilitating your reintegration into the community.   

Prospects of rehabilitation

52You present with prospects of rehabilitation though they are guarded and largely depend on you controlling your drug and alcohol use and obtaining treatment. 

53Dr Trainor notes that you are currently motivated to abstain from substance use  and also states the following:

Regarding insight, he reflected that his alcohol and illicit substance use had caused significantly disruption in his life and said he was motivated to receive help for this. He connected the use of illicit substances with the development of psychotic symptoms. He took responsibility for is behaviour that led to the charges.

54Mr Crewdson makes similar observations in his report. He also considers that a key issue in your rehabilitation will be controlling your alcohol use.  This will require intense supervision when released from custody and need constant monitoring and genuine commitment on your part. Dr Trainor considers that you would additionally benefit from longer-term psychological intervention to address your long-standing offending behaviour, personality style and coping, history of childhood trauma, anger dysregulation and issues with interpersonal relationships. He recommends a referral to the Corrections Victoria Forensic Intervention Service.  

55Your Counsel submitted that you are presently committed to remaining substance free. You no longer display any psychotic symptoms; and you are motivated to have a relationship with your daughter and connection with your ex-partner. While you clearly have an entrenched history of drug abuse and offending, you also have had periods of stability, where you have remained drug free and employed. 

Sentencing considerations

56The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In your case there are a range of mitigatory factors which I will take into account, but they must be balanced against these principles and in particular, community protection.

57I take into account the sentencing guidelines referred to in s5 of the Act, where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty. In relation to the arson it is difficult to gauge more than a very general yardstick from other cases given the wide range of offending conduct which can constitute the offence and the personal circumstances relating to individual offenders.

58As previously noted, the serious offender provisions also apply.  While I will give prominence to protection of the community, in all the circumstances of your case, I do not propose to impose sentences longer than what is proportionate to the gravity of the offence. 

59There was no dispute between the parties that a term of imprisonment involving a head sentence and a non-parole period is warranted in your case. I agree that this is the only just and appropriate available sentence. Your Counsel submitted that any such sentence should allow for your imminent release and that you had served a sufficient period.  While I do not entirely accept this submission I do consider that given the complex issues you face and your risk of institutionalisation, that community protection is also well served by supporting your transition back into the community in a structured and assisted manner.  

Sentence

60On all charges, weighing up all relevant considerations, you are convicted and sentenced as follows –

61Charge 1, make threat to kill, six months’ imprisonment.   

62Charge 2, make threat to kill,  six months’ imprisonment.

63Charge 3, arson. Two years and eight months’ imprisonment.

64Orders for cumulation as follows: Charge 3 is the base sentence.  On Charge 1, one month imprisonment and on Charge 2, one month imprisonment is to be served cumulatively on the base sentence.  I otherwise direct that all sentences to be served concurrently. 

65On Summary Charge 4, committing an indictable offence on bail, as I have taken this into account as an aggravating feature in a consideration of the substantive charges, I impose a term of 14 days’ imprisonment and make an order that it be served concurrently.

66This results in a total effective sentence of two years and ten months’ imprisonment, in other words 34 months’ imprisonment.  I set a non-parole period of 20 months’ imprisonment. 

67Pursuant to s18 I declare that you have already served a period of 480 days in custody.

68Pursuant to s6AAA I declare that but for your plea of guilty, I would have imposed a total effective sentence of four years and five months’ imprisonment with a non-parole period of three years and four months’ imprisonment.

69I enter on the records of the Court that you have been sentenced as a serious offender for Charges 1, 2 and 3.