Director of Public Prosecutions v Weily
[2020] VCC 1731
•28 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02431
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL JAMES WEILY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2020 | |
DATE OF SENTENCE: | 28 October 2020 | |
CASE MAY BE CITED AS: | DPP v Weily | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1731 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Cameron | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R. Morgan | Peter Baker & Associates |
HER HONOUR:
1 Michael Weily, you have pleaded guilty to one charge of arson. The maximum penalty applicable to that offence is 15 years’ imprisonment.
2 This crime arises out of events which took place on 24 September 2018 involving the victim of your offending, Ben Lawson. Now, that is the speed I am going to travel at with reading. Are you all right with that, Mr Weily, to keep up? Yes.
3 OFFENDER: (No audible response.)
4 HER HONOUR: All right. Both Counsel all right with the speed?
5 COUNSEL: Yes. Thank you, Your Honour.
6 HER HONOUR: Great. All right.
7 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as so summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. Your behaviour was obviously unacceptable. I turn to a summary of your offending.
8 At the time you were 29 and the victim 27 years of age. You and the victim were known to each other. At sentence you are 31.
9 On Monday, 24 September 2018, at 8.55am, you called a taxi to collect you from your home in Colac. The taxi arrived at your address at 9.06am, and you asked the driver to take you to another address in Colac. At the time you had with you a 20‑litre jerrycan, red in colour.
10 The driver dropped you at the address requested, being the victim’s home.
11 You entered the premises and made your way to the master bedroom, walking directly past the victim who was asleep on the couch in the lounge room. You then started a fire in the master bedroom before leaving the premises (Charge 1 – arson).
12 Mr Lawson was woken by the cries of passers-by attempting to alert potential occupants that the house was on fire. He managed to flee the premises, uninjured. The fire was contained to the master bedroom and caused approximately $5,000 in damage.
13 Forensic Officer Kelleher assessed the scene and concluded that the cause of the fire was ignition of combustible material on and around the bed in the north-western bedroom. This had been assisted by the presence of what appeared to be a relatively small amount of petrol spread across the bed.
14 You were arrested on unrelated matters on 22 October 2018, i.e. approximately one month after this offending and interviewed. You admitted attending the premises to use the shower but denied starting the fire.
15 Turning to your plea of guilty, this matter was to resolve prior to the second listing committal mention; however, was unable to proceed at that time due to your failure to appear.
16 The matter was listed for summary jurisdiction and subsequent summary plea hearing on 2 December 2019 in Colac; however, summary jurisdiction was refused, and the matter listed for plea in this court.
17 The prosecution accept you indicated your intention to plead guilty at an early stage, despite your denials in the record of interview.
18 You have pleaded guilty to this charge, and you are entitled to have that taken into account in your favour, and I do so. The community has by your plea of guilty been spared the time and cost of a trial, and witnesses have not been required to give evidence upon your trial. Further, I take into account in your favour you intimated early your intention to plead guilty to this charge. Your plea of guilty has utilitarian benefit. I also accept in the circumstances your plea of guilty indicates remorse for your offending, although I am concerned about the extent of your remorse.
19 You have admitted a concerning criminal history. Whilst none for
arson-related offences, you have been before the courts on multiple charges of burglary. Also a charge of damaging property, which I was told involved damage to a car and I was today told it did not involve arson.
20 Your first court appearance in your criminal record was on 6 August 2007 at Geelong Magistrates’ Court, then on 29 July 2009 on multiple charges of burglary for which you were placed on a Community Correction Order for 12 months. That Order was breached and dealt with at Colac Magistrates’ Court on 20 September 2010.
21 You next appeared at Colac Magistrates’ Court on 18 June 2012, for contravening a suspended sentence Order. On that same date you were dealt with for other offences, including trafficking methamphetamine, burglary, theft, other dishonesty charges, and intentionally destroying property.
22 At Colac Magistrates’ Court on 11 September 2017, you appeared on charges of theft of a motor vehicle, possess methylamphetamine, theft from a shop, and a number of driving offences and were sentenced to 58 days’ imprisonment (time served) and an 18‑month Community Correction Order with conditions attached.
23 You next appeared on 6 August 2018 for breaching that Community Correction Order, the original Order then confirmed. It would appear that Order was to commence on 11 September 2017 again, for 18 months, which would make it approximately March 2019, your offending before me therefore breaching that Community Correction Order. I am not of course sentencing you for the breach. It is, however, relevant to my assessment of your rehabilitation prospects in that at the time of this offending you were subject to a court Order. In addition to that, I note your otherwise previous breaches of court orders.
24 On 6 August 2018 you were also before the court, apart from the breach, on contravening a family violence intervention Order, contravening a conduct condition of bail, and theft, amongst other offences and were sentenced to 60 days’ imprisonment, reckoned as a period of imprisonment already served under that sentence. You were released on approximately 6 August 2018 and committed this offence approximately six weeks after your release from custody.
25 Mr Lawson has been given the opportunity to prepare a victim impact statement, however, has not done so.
26 Your Counsel, Mr Morgan, tendered a written outline of submissions and addressed them during the course of the plea hearing (Exhibit 1). I discussed his submissions with him during the course of the hearing.
27 Mr Morgan’s primary submission at that stage regarding sentence was:
(a)the 240 days you had spent in custody by way of pre-sentence detention as at your plea hearing was an appropriate period of imprisonment for this offending;
(b)his secondary submission, without abandoning his primary submission at that time was that if I imposed a term of imprisonment of less than two years, I should set a non-parole period;
(c)his third submission, at that time, without abandoning his previous two submissions, was that if the sentence imposed was more than two years, he urged a lengthy period of parole.
28 Turning to his submissions, Mr Morgan referred to your lack of prior appearances for arson and I am aware of that.
29 While I note there has not been any offending since 9 July 2019 that incorporates time in custody while undergoing sentence or on remand for this offending and therefore you were not in the community.
30 In oral submissions of Mr Morgan, you instructed that at the time of this offending you lived at the property where you lit the fire. In the morning you had been at a friend’s place in Grey Street, then took the petrol in the jerrycan to the residence where you were living. You said you did this as a result of a disagreement apparently that you had with the victim. That falling out, it seems, over what the victim had allegedly been saying about 1 Grey Street, Colac, the victim you said having made disparaging remarks about the address or people in it.
31 You agreed in the Record of Interview you knew that Mr Lawson was in the house at the time. Your instructions were that at your interview you were “high on drugs and alcohol”. I note your offending occurred sometime prior to that interview however I also accept at the time of the offending you were using methamphetamine on a daily basis and were also on this occasion adversely affected by alcohol as you instructed.
32 Your intention, I was told, was to burn the bedroom, not the house. Your instructions according to Mr Morgan were that you accepted you were not in control of the circumstances that day as you were affected by drugs and alcohol. You conceded anything could have happened and that it was due to luck and not good management that the situation you created wasn’t far worse.
33 You said there had been no incidents between yourself and Mr Lawson since 24 September 2018.
34 Mr Morgan conceded your offending was serious, but urged it fell at the lesser end of the scale, in that it occurred over a very short period of time (no longer than five minutes he urged), the damage was limited to one bedroom he said, the value of the damage was not high, being approximately $5,000. Also that a relatively small amount of petrol was used for the fire. I note those submissions, however the resultant ‘limited’ fire was more good luck than good management by you.
35 Mr Morgan conceded your offending breached a Community Correction Order and that you were ultimately dealt for breach of that Order in January 2019. In addition, you had been released from prison approximately six weeks prior to this offending.
36 Mr Morgan urged you were unaware the victim was in the house when you lit the fire, however I note in your Record of Interview you referred to knowing Mr Lawson was asleep on the couch. I am, of course, not sentencing you on the basis of having that knowledge.
37 It is correct that no-one (specifically Mr Lawson) was injured and that the victim vacated the property safely.
38 I also agree you were not charged with any other offences at the time of this offending. Further there were not multiple acts of damage caused, rather one fire lit by you, in one room of the premises.
39 Mr Morgan urged your actions were not greatly premeditated or planned. In my opinion, however, there was an element of pre-planning, in arranging to go to the property, arranging a taxi, and taking the flammable liquid with you. It is clear you also attended with a motive, it seems, as some form of “payback”, to which I shall shortly refer again.
40 Mr Morgan urged your offending was not sophisticated. It however did not need to be. You achieved your goal in causing fire damage to the bedroom. I am aware that this was not family-violence related offending and that you were not motivated by financial gain, rather, as I previously stated, “payback”.
41 Mr Morgan urged you had some rehabilitation prospects. You had undertaken drug courses in custody to address the underlining cause of your offending behaviour. He urged you were making genuine and extensive efforts to change your life.
42 Mr Morgan submitted you were genuinely and appropriately remorseful for your offending evidenced by your plea of guilty at an early stage, and I accept that is so, although I note in your answers in the record of interview you denied the offending. I do accept, however, that after your legal representatives became involved in this matter, the matter proceeded to a plea of guilty at an early stage as I have already said.
43 Mr Morgan submitted your plea of guilty had facilitated the course of justice and saved the community the expense of funding a trial and of course that is so.
44 Mr Morgan urged you were cooperative with police and were arrested without incident. I discussed the latter with him and in my opinion, while it might be part of the scenario, it does not specifically mitigate sentence.
45 Mr Morgan urged that you had been in custody since 9 July 2019 and had not applied for bail. It was urged that showed you fully appreciated the wrongfulness of your behaviour; I note you were in custody for other offending/undergoing sentence for part of that. I received an update today in relation to PSD.
46 Mr Morgan urged your plea of guilty had saved the victim further distress and I accept that is so.
47 He further urged you had sought treatment while on remand evidenced by the various certificates which were tendered, to which I shall shortly refer.
48 Mr Morgan urged I not impose a crushing sentence.
49 Mr Morgan submitted the type of psychological counselling you required would rarely be available within a prison, although it became apparent from his submissions you were not prevented from undertaking courses while at Marngoneet and had, in fact, undergone some counselling in June 2020.
50 Mr Morgan urged the principle of totality applied when sentencing you. I agree. You were remanded on other offences on 22 October 2018, subsequently charged with this offence on 31 October 2018, and had remained in custody until 14 January 2019, at which time you were sentenced to 128 days’ imprisonment in the Colac Magistrates’ Court for unrelated offending. That 128 days was reckoned as pre-sentence detention. You were then remanded on other offences on 9 July 2019 and subsequently sentenced to 146 days’ imprisonment at the Magistrates’ Court in Colac on 2 December 2019, again in relation to unrelated offending and at that time 146 days were reckoned as pre-sentence detention. I accept, in total, you have been in custody since 22 October 2018 for various offences and sentenced on two occasions prior to 2 December 2019.
51 It was urged that the COVID-19 virus had made your time on remand more onerous. I discussed with Mr Morgan the limitations in accepting a number of his submissions relevant to this, I do, however, accept it has been more difficult for you to undertake certain courses as a result of the COVID-19 Pandemic. Also, that you have had limited opportunity for contact with your children and other family members and/or friends due to your lack of ability to have ‘face-to-face’ ‘in person’ contact. I accept there have been some limitations as a result of COVID-19 that at times there have been some lockdowns. I note that Corrections Victoria can give credit to prisoners for disruptions during their incarceration by way of Emergency Management Day Deductions, such of course is a matter for Corrections, not me.
52
I discussed with Mr Morgan the lack of information in the report of Mr Ball regarding your future risk of offending in such a way. I was concerned about your risk of future offending, given your motivation was some form of “payback” to Mr Lawson, who you perceived had been saying inappropriate things. I was also told by the prosecution there were a number of Facebook messages around the same time as this offending, where you referred to other people, and discussed ‘arson’. It was clear from the report, as I discussed with Mr Morgan, that Mr Ball did not have a copy of your Record of Interview, which may have assisted him to address your level of risk of
re-offending. Nor did he have the Facebook messages, nor was he apparently aware of his instructions now that you had been abstinent from drug use between 2014 and 2017, which seemed inconsistent with Mr Ball’s report and instructions from you at those interviews. I am required to make an assessment of your risk relevant to your rehabilitation prospects. That discussion ultimately led to me requesting a Forensicare Report to address your risk.
53 I turn firstly to the report from David Ball, forensic psychologist, dated 1 July 2020. He saw you at Marngoneet on 26 June 2020, and again on 30 June 2020 for psychological assessment. He noted that whilst you engaged in clinical interview, you provided a limited personal history and account of yourself.
54 You had been in custody, at that time for approximately 12 months, then in the Rothwell mainstream remand unit. You were unemployed in prison and had not participated in any programs. I also note most/many programs ceased from the time of the COVID-19 pandemic in early 2020. It would appear however you did not complete any courses (in the six-month period before March 2020). You reported no bullying or harassment by other inmates or any issues with staff or discipline in prison.
55 You were not currently prescribed medication and considered yourself to be in good general health. You had not received any social visits, as you did not want to be reminded of what you were missing outside. I note social visits have also been suspended since March 2020 due to COVID-19.
56 Your mental status examination was, he said, broadly unremarkable. You denied any significant symptoms of depression or anxiety and Mr Ball did not find any evidence of psychotic symptoms. You described at interview being free from substances.
57 Mr Ball estimated your IQ fell within the normal range. Overall, you impressed however as a person with significant impairment to your capacity for good judgment and ability to plan and execute positive and self-sustaining behaviours. You presented with a history of substance abuse, a lengthy history of criminality and of living on the fringes of the community.
58 Turning to your background and history, Mr Ball referred to the limited personal history provided by you and his inability to confirm the details you did provide.
59 You are one of five siblings. Your father passed away when you an infant, and your mother struggled financially thereafter. You described her
then-partners as physically abusive to her and to you. You said you left the family home when you were about 15 and lived with friends.
60 You attended school to Year 10 and described yourself academically as “very good”; however, with few friends. In secondary school you started using substances. There were increasing disciplinary issues with you, and you were asked to leave two schools. You reported you had not had any paid employment.
61 You described three significant intimate relationships. That you had a 13‑year old son with your first partner and a 9‑year-old daughter with your second partner. Mr Ball’s report referred to you not having had contact with either child, although I note Mr Morgan said that was incorrect.
62 Your most recent relationship ceased in 2019.
63 Turning to your drug and alcohol history, you started drinking alcohol when you were about 10, drinking “heavily”. You said you now avoided drinking ‘as much as possible’, being aware of how you conduct yourself when you have been drinking.
64 You described use of cannabis over approximately 20 years, typically using up to 7 grams daily. Further, you acknowledged long-term dependence on opiates and methylamphetamine, using up to 1.7 grams of the latter substance daily.
65 You acknowledged some of the negative impacts of your substance abuse:
“Drugs have dominated my life for the past 18 years ... [and have resulted in] drug induced psychosis, mood swings, depression ... so negative all round.”
66 You had participated in some community based rehabilitation programs, you said, with varied results. You had now been sober for 12 months and were feeling the benefit of being substance free (in prison).
67 You acknowledged a significant history of prior court appearances which you described as relating primarily to your substance abuse and supporting your habits.
68 Regarding your offending before me, you only had a very vague recollection of the events, having been affected by methamphetamine you used daily at the time of this offending, along with taking Valium and a substantial amount of alcohol. You described:
“He [victim] was fuckin’ with everyone I ever loved. He was just being a little snake in the grass.”
69 In custody you were trying to free yourself from your dependence on substances, and upon release were hoping to live with your mother.
70 In Mr Ball’s opinion, you presented as socially detached with low self‑esteem. You were more likely to be a follower than a leader. While you sought emotional support and protection from others, you were uncomfortable in social relationships and had trouble understanding the feelings and motivations of others.
71 You were guarded and apprehensive when relating to others. As a result, you had few strong relationships and were frequently lonely and isolated from others. In situations where you were feeling especially vulnerable, you were most likely to experience a sense of helplessness and hopelessness.
72 You suffered significant anti-social personality features, tending to have a distorted self-image and suffering low frustration tolerance. You were preoccupied with mistrustful thoughts and were easily provoked. As a result, you engaged in aggressive and violent behaviours as a mechanism to ventilate your emotions. You discharged inner tension in hazardous ways without much remorse.
73 Mr Ball’s diagnosis was of antisocial personality disorder with a history of conduct disorder in adolescence.
74 Your Counsel was not relying upon the principles in R v Verdins and Ors[1] as mitigating your moral culpability or the need for general deterrence, and that, in my opinion, was an appropriate concession on the material before me. It is clear that on this particular occasion your offending occurred in the context of drug use and alcohol consumption.
[1](2007) 16 VR 269.
75 In the opinion of Mr Ball, you would benefit from a drug relapse prevention program and cognitive behavioural therapy for antisocial personality disorder. To have any confidence regarding your rehabilitation prospects you needed to address drug and alcohol use.
76 Mr Morgan referred to some aspects of your background, which he submitted put this offending into context, albeit he was not relying on that in mitigation of sentence. A photograph (Exhibit 5) was tendered, which you said was when you were kidnapped by CH. That you had been in a relationship with Ms K prior to 2014, at the time of this photograph apparently, and that CH had apparently seen a photograph of you and Ms K, which led him to take the step he did, as shown in the photograph. Apparently, you did not advise Mr Ball of Exhibit 5, his report it seemed was silent on that information.
77 Your Counsel urged that after this incident between 2014 and 2017 you remained offence free and drug free. While I accept you were, for a time, offence free as indicated by your prior criminal history, it is less clear that you were abstinent from drugs or alcohol, in particular given the comments attributed to you by Mr Ball during the interview, that you were using, over approximately 20 years. Your stated drug abstinence seemed less than clear to me on the material before me.
78 Ultimately, I conclude your prospects of rehabilitation are guarded, but not eliminated. Ultimately you know that when you use drugs or alcohol you are likely to offend and you told Mr Ball that your offending occurred in the context of drug/alcohol use.
79 Mr Morgan referred to other trauma in your life, including your father passing away in 1990, when you were 10 months of age, your mother then pregnant with another child. That from the time you were approximately two years of age you were exposed to your mother’s violent relationships with men.
80 From the age of two you described living ‘on and off’ with your aunt, then at age 11 or 12 living with her. That would seem to be, again, somewhat inconsistent with your instructions to Mr Ball, where he attributed you as saying that you left the ‘family home’ when you were 15, then lived with friends, not specifying your aunt’s involvement.
81 Mr Morgan urged a particular motivator for you to now avoid drug use and remain offence free was your children. Your son has been diagnosed in July 2020 with Asperger’s. It was unclear to me how much contact you had with the children, given the various reports including to Mr Ball that you did not see either child. You were not relying on exceptional circumstances relevant to family hardship in mitigation of sentence and that, in my opinion, was an appropriate concession on the material that was before me.
82 Other material was tendered by your Counsel. A number of courses undertaken by you in custody; Applying Occupational Health and Safety Regulations and Conduct In-Service Safety Testing of Electrical Cord Connected Equipment; a six-hour Ice Effects program, a Statement of Attainment from Kangan Institute regarding Control Traffic with Stop/Slow Bat and Implement Traffic Management Plan; a six-hour Managing Cravings certificate; a Certificate of Completion of “Tuning into Respectful Relationships”; a certificate of Course, Jobs and Careers, although that appears to be duplicated; a completed “Adapt” program; “Take Stock ‘A’” program, completion of a “Take Stock ‘B’ Program” and completion of a ‘Family Friends and Community” program (Exhibit 3).
83 In addition, four urine analysis results were tendered. Samples provided on 10 November 2019, 20 February 2020, 2 October 2019 and 14 September 2019, were all negative for illicit substances (Exhibit 4).
84 Mr Cameron for the prosecution, prepared a written outline of submissions relevant to sentence (Exhibit D). Mr Cameron urged this was a serious example of the offence of arson. I agree, although I accept not the most serious example. He addressed a number of aggravating features of your offending. That there was a level of planning and premeditation, including the steps taken by you to obtain the jerrycan of accelerant, calling a taxi, travelling to the victim’s address, and presenting a false narrative to explain your presence at the address to multiple people. I agree.
85 That there was use of an accelerant, which carried with it the prospect of damage/destruction as part of the planning process.
86 That your motivation for this offending appeared to be “ill will” towards the victim. That “ill will”, the prosecution submitted apparent in Facebook messages between yourself and others, in which you discussed your plans to burn people who had crossed you “to the ground” and to “screw the door shut and burn the whole place to the ground”. Those comments annotated with flame emojis. You are, of course, not being sentenced for those statements, however those statements made at the relevant time show a certain attitude to others at that time, consistent with “ill will” that you felt towards Mr Lawson and by committing the offence of arson and concern regarding your future risk.
87 You were, Mr Cameron urged, also aware other people lived at that address as you lived there and were, at the time, at least careless as to whether anyone was present at the house at the time you lit the fire. I note you are not being sentenced on the basis that you knew Mr Lawson was in the house. I repeat that statement.
88 The prosecution submitted your moral culpability for your offending was high. I agree.
89 The prosecution accepted you pleaded guilty at an early opportunity and that such was relevant in mitigation of sentence. I agree.
90 Mr Cameron submitted there was “scant” evidence of remorse beyond your plea of guilty. That you denied your offending in the Record of Interview and failed to answer bail in this matter at a committal mention on 21 June 2019.
91 Mr Cameron submitted your decision not to apply for bail could not be properly seen as indicative of remorse. I also note your sentences for other offences since your initial remand.
92 Mr Cameron conceded there was some evidence of insight by you into the detrimental impact of drug use on you. I agree.
93 Turning to your criminal history, Mr Cameron urged you had a relevant criminal history, including offences of burglary and intentionally damaging property, over an extended number of years. You also had prior offences of trafficking and possession of methamphetamine.
94
Your criminal history, he said, also reflected numerous convictions for contravening court orders, also Community Correction Orders,
Community-Based Orders, suspended sentences, Family Violence Intervention Orders and bail. In addition, he noted, as did I, this offending occurred approximately just a month and a half after you were released from prison on 6 August 2018 and also breached a Community Correction Order.
95 Addressing sentence, Mr Cameron referred to the need for general deterrence as an important sentencing consideration in cases such as this. I agree.
96 There is also the need, in my opinion, for specific deterrence when sentencing you. You have an extensive criminal history and repeated disregard for court orders. I note, however, no previous convictions or offences of arson.
97 Mr Cameron submitted the need to protect the community was a key consideration given the diagnosis of “antisocial personality disorder with a history of conduct disorder in adolescence”. Further referring to the report of Mr Ball, that you “impressed … as a man with significant impairment to [your] capacity for generally good judgment and to [your] ability to plan and execute self-sustaining behaviours”. That you presented with “a history of substance abuse, lengthy history of criminality and living on the fringes of community”. Mr Ball had also noted you engaged in aggressive and violent behaviours as a mechanism to ventilate your emotions. That you tended to ignore personal obligations, transgressors, establish social codes and ignored the safety of others regardless of the consequences. You discharged your inner tension directly in hazardous ways without much remorse. These were, he urged, that is Mr Cameron urged, and I agree, concerning opinions of Mr Ball, thus, in my opinion, the need for a Forensicare report relevant to your risk.
98 Turning to your rehabilitation prospects, the prosecution accepted you had a very long history of drug use and that you had taken positive steps during your most recent period on remand to address your drug use and lifestyle choices. Mr Cameron submitted your rehabilitation prospects at this stage were guarded. I agree. When sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be.
99 Mr Cameron referred to the report of Mr Ball, that you were “likely to present with a number of challenges in terms of his safety management in the community” relevant to your rehabilitation prospects and risk. I agree.
100 Mr Cameron submitted there was the need for just punishment when sentencing you, particularly given your motivation for this offending. I agree.
101 Addressing COVID-19, Mr Cameron conceded that there was some basis for reduction of your sentence as a result. The Pandemic caused additional stress and concern to prisoners, not only regarding their own health, also the health of family in the community. The extent to which that becomes relevant depends on the facts in any individual case. I accept those submissions and also the reduction in programs, services, and visits, and movements in prison, have also been impacted by COVID-19.
102 Addressing current sentencing practices, Mr Cameron submitted they are one consideration, among many, that formed the instinctive synthesis when sentencing.
103 I am obliged, ultimately, to impose a sentence that is just in all the circumstances and to clearly articulate the reason for the sentence imposed.
104 Mr Cameron submitted an immediate custodial sentence was required for this offending, such conceded by your Counsel, Mr Morgan, the issue being duration.
105 Mr Cameron expressed concern about the lack of evidence regarding your risk of future offending.
106 Regarding your lack of offending since 2018, much of that, he said, had been spent because you were on remand, not only for this offending but for other offending.
107 Mr Cameron addressed your lack of contact with your children while in custody. In the report of Mr Ball (page four), he noted you had not had contact with either child over many years. Mr Morgan submitted on instructions from your aunt that was “wrong”. That you had been having phone contact, in particular, with your son, Matthew, most recently on 9 July confirmed in the recent report of Dr Davidson. I accept limitations on contact in custody since March 2020 as I have previously said.
108 Mr Cameron expressed concerns about the veracity of some of the details in the report of Mr Ball, which were, Mr Cameron submitted, completely incorrect.
109 Thus urged, I requested a Forensicare report to address, in particular, your future risk.
110 The further hearing of this matter was then adjourned to 9 November 2020 to then enable preparation of a Forensicare report to address the risk of your future offending.
111 Yes. Hold on, we lost Mr Weily. Try and keep up with, Mr Weily, I know it is a long time.
112 TIPSTAFF: Can you hear me, Mr Weily? Sorry, Your Honour.
113 HER HONOUR: That is all right. Are you there, Mr Weily?
114 TIPSTAFF: No. He is gone.
115 HER HONOUR: He is gone. We are just messaging the video coordinator downstairs, whatever that means, to find out where he is and we can get him back in a hurry but I am inclined to - subject to getting him back quickly, I do not know what has happened at the prison or what is going on but I am inclined to continue and he can have a copy of the transcript in due course. It is just one of those things and you can speak to him anyway, Mr Morgan.
116 MR MORGAN: Yes, Your Honour.
117 HER HONOUR: I mean we are trying to get him first, do not worry, you know, that is the way it should be done but, you know, I do not know what has happened. Not our fault.
118 We are still waiting, in case you are wondering, Counsel. We are still waiting, Counsel. Does Counsel have to be anywhere else at the moment? Mr Cameron, how are you placed? I have probably only got about 10, 15 minutes tops.
119 MR CAMERON: I do not have any difficulties, Your Honour.
120 HER HONOUR: You are all right? How about you, Mr Morgan? Have you got to be anywhere?
121 MR MORGAN: No, thank you. No, thank you very much, Your Honour.
122 HER HONOUR: Right. Well, we will not be much longer. We have just got to see if we can find him but I am inclined to bat on if we cannot.
123 MR MORGAN: Yes, Your Honour.
124 HER HONOUR: I know that is not the best way to do it but I will just get your opinions on that when we work out what has happened to him. Still no update. I do not know how long we can keep waiting. We will keep trying a little bit longer though.
125 To cut a long story short, as I understand it, there has been a water leak in the room he is in so they have to move him from that room. That will take approximately one to two minutes. The video link is then available only until 10 which according to my associate because there is no - I cannot see a clock in here anymore now they have rechanged this room, which is about 15 minutes away which will give us more than enough time if I put the accelerator down but you will get copies obviously of the transcript so do not - of the sentence so do not panic but I do not want to lose him again if I can avoid it because I do not know when we can get him back after 10. So that is my plan to wait and hope that it all works out before 10 o'clock. Are you all right that, Mr Morgan?
126 MR MORGAN: Thank you very much, Your Honour.
127 HER HONOUR: Are you all right with that, Mr Cameron?
128 MR CAMERON: Yes, Your Honour.
129 HER HONOUR: We will do our best. It is not at this end it seems.
130 I do not think the one to two-minute estimate is terribly accurate but I cannot do much about it.
131 MR CAMERON: No, Your Honour.
132 MR MORGAN: No, Your Honour.
133 HER HONOUR: There is another problem with WebEx I am told which means what? I am just trying to repeat what my associate is telling me. The prison is unable to connect to the video link at this time. No further information.
134 So can we continue to sentence or not? Otherwise who knows - - -
135 MR CAMERON: Your Honour, I am in Your Honour's hands and Mr Morgan's hands.
136 HER HONOUR: Yes.
137 MR CAMERON: The prosecution does not have a strong view otherwise.
138 HER HONOUR: Yes. Mr Morgan, what do you want to do?
139 MR MORGAN: It is whether Your Honour - I leave it in Your Honour's hands. Obviously if Your Honour wants to proceed given the court has other commitments, I can ring up Marngoneet and try and get an urgent telephone conference with them. Your Honour, I have been making notes of what Your Honour has been saying and I can relay anything to Mr Weily. I am also concerned that given the prison has stuffed - sorry, excuse the expression, stuffed the court around, I have no confidence that they will get anything running - up and running soon. I apologise, Your Honour, I have very little confidence because of other experiences and I do not want to hold the court up.
140 HER HONOUR: Well, what I am inclined to do - the short answer is he has not got much longer to go, Mr Morgan, - - -
141 MR MORGAN: Thank you.
142 HER HONOUR: - - - and we will come to the figures in a minute. All right?
143 MR MORGAN: Thank you.
144 HER HONOUR: So not much longer. A matter of days.
145 MR MORGAN: Thank you.
146 HER HONOUR: It will be further to a fine.
147 MR MORGAN: Thank you.
148 HER HONOUR: So I am inclined to proceed - - -
149 MR MORGAN: Thank you, Your Honour.
150 HER HONOUR: - - - because otherwise if we do not get him today, I do not know when we are going to get him and it may even be - whatever. I am inclined to proceed. I know it is out of the ordinary and I accept any criticism that flows from this but the other option I am told is we can come back at 1 till 2. Well, I am in a meeting, believe it or not, between 12.30 and 3 and that is with Corrections, a stakeholders meeting, or at 3.30 but if you have agreed that this can proceed now, these reasons that I am reading are almost finalised. They are a couple of typos that I have been circling as we go which means, Mr Morgan, that you would be getting a copy of this, if my associate puts the accelerator down, in a couple of weeks.
151 MR MORGAN: Thank you, Your Honour. Thank you.
152 HER HONOUR: And you can give him a copy to read to his heart's content.
153 MR MORGAN: Certainly. No, thank you, Your Honour.
154 HER HONOUR: But, look, I am nearly finished. It has only got the last bit to go and that is a discussion about Dr Davidson, yours and Mr Cameron's further submissions and that is the end of it. So, look, I am inclined to proceed. Can you please apologise, if that is required, to him, but I will keep going. All right?
155 MR MORGAN: Thank you, Your Honour.
156 HER HONOUR: I received a Psychology Court Report prepared by Dr Ann Davidson, psychologist, Forensicare, dated 23 September 2020 (Exhibit G). Her report was sought to address your risk of re-offending. I should indicate as well that upon earlier receipt of that report, I then arranged with Counsel's agreement by my associate in contact with you to bring the hearing forward to today's date for sentence as opposed to the original hearing date which was supposed to be 9 November 2020.
157 Dr Davidson interviewed you on 3 September 2020.
158 You stated you have been substance free for 14-15 months.
159 Dr Davidson stated your judgement was not grossly impaired however your decision making was impaired due to chronic substance use and a lack of effective coping strategies and meaningful pro-social engagement. You had the capacity to gain further insight.
160 Reference was made to your background and history which I have read however will not repeat.
161 Dr Davidson referred to your account of the offending before me (Exhibit G, paragraphs 26-27) and your explanation for the ‘Facebook messages’ referable to ‘fire’.
162 Turning to your risk assessment, in your case Dr Davidson surmised you intended to cause psychological harm to your victim and intended to destroy his property although you appeared confident the victim would not be physically harmed.
163 Dr Davidson utilised the violence risk HCR-20-V3 assessment tool and explained its relevance to you. In summary, you presented with a high risk of future violence and high risk of re-offending generally, without significant interventions – treatment, management and support. These would address your risk level; however you retained some anti-social attitudes that ‘may be harder to shift’.
164 Dr Davidson stressed that the imminence and severity of such behaviours were not considered to be high.
165 Regarding future fire setting there was little to indicate that fire setting was any more or less likely than other forms of violence in the future. There was no evidence from Dr Davidson’s assessment that you possess attitudes that support the use of fire and no evidence of abnormal fire interest.
166 In Dr Davidson’s opinion it was possible you chose fire setting on this occasion as the opportunity had presented itself rather than any particular tendency towards fire setting.
167 In Dr Davidson’s opinion this offending behaviour reflected your sense of impotence in terms of communicating your needs and concerns to the victim and likely your deficits in meaningful interpersonal communication generally.
168 Dr Davidson set out future treatment of you which may assist (Exhibit G, paragraphs 38-39).
169 Following receipt of that material I received submissions from Mr Cameron dated 19 October 2020 (Exhibit H). He referred to Dr Davidson’s assessment as to future risk as “a high risk of future violence and high risk of re-offending generally without significant intervention”. Dr Davidson, Mr Cameron submitted, opined Mr Weily’s future risk could be addressed through a parole plan, which also addressed problems with substance use and employment, his risk assessment to be revised when eligible for parole.
170 Mr Cameron submitted those concerns increased the importance of protections of the community and specific deterrence when sentencing you.
171 Mr Cameron also accepted the importance of your rehabilitation through a parole plan which addressed the concerns expressed by Dr Davidson.
172 Mr Cameron confirmed the prosecution submission on sentence was that the imposition of an immediate custodial sentence was appropriate.
173 Mr Morgan in his further written submissions dated 22 October 2020 (Exhibit 6) referred to Dr Davidson’s assessment of your risk. That you did not have a history of fire setting and that there was little to indicate that fire setting was any more or less likely than other forms of violence in the future.
174 In the opinion of Dr Davidson this fire setting appeared to arise from your impulsive and impaired decision making in the context of long standing substance misuse and other factors as described.
175 Whilst your risk of violence was high, such behaviours were not considered to be high. Based on your past behaviour any violence was likely to be at a moderate level and not a frequent occurrence.
176 Mr Morgan conceded the link between your present and past offending and your use of illicit substances. You had to date completed your longest abstinence from such use.
177 You had, he urged, reasonable insight and the capacity to gain further insight. In addition, you had pro-social goals.
178 A parole plan would address your risk of re-offending urging a longer period on parole to address all sentencing considerations including your rehabilitation.
179 As well as matters personal to you, including your rehabilitation prospects as I find them to be, I must also take into account the need for general deterrence which is of particular importance in a case such as this.
180 Also the need for specific deterrence when sentencing you. In that regard, I note you have an extensive prior criminal history, although I note not for the same type of offending as that before me.
181 There is also the need to protect the community from you and bear in mind the likelihood of your re-offending. In that regard, I note the conclusions of Dr Davidson to which I have referred.
182 I am also called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
183 When sentencing you, as previously stated, I take into account the principle of totality relevant to your entire time in custody including undergoing other sentences.
184 So I am going to sentence now, Counsel, if you are with me.
185 On Charge 1, you are convicted and sentenced to 20 months’ imprisonment and I direct that you serve a period of 340 days before you are eligible for parole.
186 Pursuant to s18(4) of the Sentencing Act 1991, I declare you have spent 331 days in custody by way of pre-sentence detention up to and including yesterday, 27 October 2020, and I direct that that be entered into the records of the Court.
187 Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty to this offence and been found guilty of it, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.
188 Any other orders? Were there any other orders, Mr Cameron? I did not have any. No?
189 MR CAMERON: No other orders, Your Honour, no.
190 HER HONOUR: All right. Well, most importantly did you get the sentence written down, Mr Morgan? Did you understand it? I am sure you did, not to be offensive.
191 MR MORGAN: No, no. Thank you, Your Honour. I got it as a convicted and sentenced to 20 months' imprisonment - - -
192 HER HONOUR: Twenty, yes.
193 MR MORGAN: - - - with a non-parole period of 340 days.
194 HER HONOUR: Correct, and declare 331.
195 MR MORGAN: Thank you, Your Honour.
196 HER HONOUR: So you can do the maths yourself.
197 MR MORGAN: Yes, Your Honour.
198 HER HONOUR: Now, can I simply urge you to do your best to contact Mr Weily as soon as you can because he may well - he may not be anxious about it but he might be anxious about the sentence and please apologise. If there is any criticism, then it is really not our fault. I am just trying to keep it moving but - - -
199 MR MORGAN: No, thank you, Your Honour. Thank you very much, Your Honour.
200 HER HONOUR: - - - if you could please let him know what the difficulties. It is just one of those things. It is not good but I cannot do much about it.
201 Mr Cameron, is there anything you wanted to add or say or anything at this stage? Have I missed anything? No?
202 MR CAMERON: No. Thank you, Your Honour.
203 HER HONOUR: All right. Can I thank you both for your assistance throughout this plea and during the delay while we got the report but it is finalised now. All right.
204 MR MORGAN: Thank you, Your Honour.
205 HER HONOUR: Thank you both very much. I will disconnect the link. Thank you.
206 MR MORGAN: Thank you.
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