Director of Public Prosecutions v Welch
[2013] VCC 1312
•2 August 2013
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00591
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL WELCH |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2013 | |
DATE OF SENTENCE: | 2 August 2013 | |
CASE MAY BE CITED AS: | DPP v. Welch | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1312 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Sedgwick | Office of Public Prosecutions |
| For the Accused | Mr M Dempsey | Victoria Legal Aid |
HER HONOUR:
1 Mr Welch, you have pleaded guilty to one charge of burglary and one charge of arson. The maximum penalty applicable to the offence of burglary is ten years' imprisonment, and the maximum penalty applicable to the offence of arson is 15 years' imprisonment.
2 These crimes arose out of events which took place on 17 December 2012 in North Fitzroy. A summary of that offending was read into the transcript by the prosecutor, Ms Sedgwick, consistent with the prosecution opening (Exhibit A) and I incorporate that summary into this sentence.
3 I proceed to sentence you on the basis of those facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
4 I turn to a brief summary of your offending. At the time of it, and at sentence, you are 31 years of age.
5 The premises, the subject of the two charges, was in Princes Street, Carlton and used by the Johrei Association, a not for profit spiritual and community group. The premises were used as a minister's dormitory and to receive members of the public. A minister had been staying at the centre until three days prior to the burglary and arson. When he left the house, he locked and secured it. Fortunately no-one was in the premises at the time of your offending.
6
The building had properties adjoining either side of it. The property to the left was occupied at the time of your offending, which was about 4.00 am on
17 November 2012. At the relevant time you had consumed alcohol and were intoxicated. You picked up three bluestone pavers from the front of the premises and threw them through the front window, gaining entry, cutting yourself in the process.
7 Inside the premises you ransacked the premises, looking for money and things to steal. Blood left by you at the premises matched you on the DNA database. You opened a cash box, but did not find any money. You stole two T-shirts of nominal value during the course of the burglary. You then moved other property to the front part of the Centre in preparation for stealing it. You exited the premises with only the two T-shirts to which I have previously referred. You then started a fire at the point of entry near the broken front window.
8 At about 4.30 am a passer-by saw a flame, smoke and fire and rang “000”. He knocked at the property to the left and right of the building and from the property to the left a male in his 40s exited. He had been asleep at the time. There was a large amount of smoke and fire inside the Centre. The fire brigade arrived after about five minutes and took control of the scene.
9 The owner of the building subsequently inspected the property and observed it had extensive smoke damage throughout. Most of the property and belongings inside had been destroyed by fire or damaged by smoke. The extent of the damage in dollar figures was somewhat unclear to me, and I note the prosecution did not make an application for compensation at this time.
10 I was told the total amount paid out by AAMI, who insured the property and contents in relation to the claim arising from the burglary and arson, was $63,581.82, although there appeared to be some doubt about that figure. I accept the description of amount of damage as opposed to dollar figures as outlined in the summary and the victim impact statement. The damage was substantial.
11 You were arrested on 14 January 2013 based on the DNA material at the scene and were interviewed. You said you committed the burglary and got in by smashing a front window with a rock. You said there was nothing stolen except for a couple of T-shirts. You had been drinking and were "quite highly intoxicated." No reference was made by you to use of Xanax in that interview, although such subsequently formed your instructions to Dr Aaron Cunningham, as I discussed with counsel. After your offending you said you walked home.
12 You denied starting the fire in the interview and could not explain how the fire started. When it was put to you you started the fire to cover up that you had bled in the premises, you said, "I didn't. I was too drunk to even care." You repeatedly denied having lit the fire. As I discussed with counsel, your denial was consistent with your desire to not be remanded at that time. I was told by Mr Dempsey your children were then visiting you and you wanted to go home to them.
13 You have admitted a prior history, and in particular of concern is that your offending before me occurred whilst you were on parole. You have an extensive prior criminal history relevant to dishonesty/burglary offences, although I note none for arson or fire-related offending.
14 You first appeared at court on 3 April 2007 and thereafter amassed a significant and lengthy criminal history. Your most recent prior court appearance was at Shepparton Magistrates' Court on 6 March 2012.
15 In the past, as I said, your offending has predominantly included offences of dishonesty including burglary. There are also concerning charges involving injury/assaults and threats, also weapons in the form of aggravated burglary, assault with a weapon and possessing a controlled weapon. The sentences you have previously received have involved a variety of dispositions, many being immediate terms of imprisonment. You are clearly very familiar with the criminal justice system.
16 I state for completeness, whilst alcohol provides the background to much of your prior offending, as I was told by Mr Dempsey, I do not regard it as an aggravating feature for the purposes of sentencing you on the charges before me. In particular, the offence of arson is not one which has previously appeared in your criminal history.
17 I accept the submission by Mr Dempsey in relation, in particular, to the arson offence. It was not an act of revenge by you, nor do you have a history of compulsion to light fires, nor was it youthful experimentation in your case. Rather, it seems to fall into another category where the reason for your attendance at this particular building, and specifically your lighting of the fire at the property, was inexplicable. I accept that regarding your offending before me, you did not specifically target this property, that there was no preplanning or sophistication relevant to the arson charge.
18 You had been released on parole on 6 July 2012, just four months prior to this offending.
19 Following being interviewed in relation to this offending on 14 January 2013, your parole was cancelled on 16 January 2013. You owed the Parole Board at that time one year two months and 27 days (approximately 15 months). That period is due to expire in April 2014 (approximately 9 months). You are currently in custody undergoing that parole period which was ordered to be served.
20 When sentencing for offences committed on parole, CA v R[1] is applicable, in particular paragraph 16. When sentencing you for the offences before me, I must assume you will be required to serve the full parole sentence, such being relevant to the total principle also applicable when sentencing you.
[1] [2012] VSCA 199
21 Further, when sentencing you in relation to your offending on parole, s.16(3B) Sentencing Act 1991 is also relevant. It dictates that the sentence I impose for the offences before me must be served cumulatively on the parole sentence unless otherwise directed by the court because of the existence of exceptional circumstances. Mr Dempsey conceded there were no exceptional circumstances in your case. I am still obliged, however, and do take into account the principle of totality.
22 When fixing the sentence for the two charges before me, I must assume your parole sentence will be served cumulatively upon the sentence I impose. When so viewed, the aggregate of sentences imposed by reason of cumulation cannot be greater than is warranted by the totality of the criminality represented by both these later offences and your original offences.
23 You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. This matter proceeded to a plea following plea negotiations on your behalf. The matter proceeded by way of a straight hand-up brief with a plea of guilty entered at the committal mention stage. This was conceded by the prosecution, and I accept, to be an early plea of guilty. I also note your admissions to the burglary when first spoken to by police. Your plea of guilty and the stage it was entered, I accept indicates remorse for your actions.
24
I have been told something of your personal history and circumstances by
Mr Dempsey, who also further addressed his helpful and thorough written submissions.
25 From 16 January 2013 your parole was cancelled and you began serving the parole sentence. You had spent two days in custody by way of pre-sentence detention pursuant to s.18(4) Sentencing Act 1991 for the offences before me. I accept on the material and submissions before me your background was dysfunctional and likely "set the scene" for your offending behaviour over the years.
26 Mr Dempsey tendered a report from Dr Aaron Cunningham, Forensic Psychologist, dated 9 July 2013, who assessed you on 14 June 2013. He also outlined some of your background and history.
27 You were raised in Shepparton, together with a younger sister Amy and a younger half brother. Your sister Amy had mental health issues and was currently at Thomas Embling Hospital and had been for the past seven years. Your father was physically violent towards you, I was told, and also to your mother. He had also been charged with murder in 1982. You instructed your parents' marriage ended after your mother discovered your father was sexually abusing Amy. Your mother remarried when you were 14 years of age. You described your stepfather as "all right", although you did not have a good relationship with him. You were evicted from the family home when you were 16 due to your violent temper.
28 You lived with your stepsister for 18 months, then became homeless and could not settle. It was then you met your partner Lisa, with whom you had two children, Isiah 7 years of age, and Lucas, 5. You maintained a relationship with Lisa for approximately three years and said Lisa suffered from depression. You said you had a nervous breakdown at the age of 26 when your sister Amy attacked her son with an axe. You attempted to help your mother care for your nephew, although at that time you said you were "living place to place, drinking heavily, using drugs heavily and ended up getting locked up."
29 You are currently in a relationship with Maggie and have been for approximately four years. She is employed as a nurse, and you described her in very positive terms. A reference was before me from Ms Macarita Damuni (Maggie) confirming her relationship with and continuing ongoing support of you. Ms Damuni also attended court to support you at the most recent plea hearing date.
30 You did not maintain regular contact with your children, as they lived away from the Melbourne area, although I note your instructions to Mr Dempsey that they were staying with you in January 2013 and thus your desire not to be remanded in custody at that time.
31 You attended Shepparton High School but were often in fights because you were bullied. You were sent to an alternative school during Year 9. When you returned to mainstream Year 10 you were expelled.
32 You started work in sheet metal engineering and stayed for approximately eight months. You then worked in a variety of different jobs, not being able to maintain employment for any real length of time. Your longest employment was as a pluming labourer for 18 months in 2000. Prior to your recent incarceration, you were employed with Wire Trainers as a welder, a job you held for three months, only leaving due to lack of work. Mr Dempsey submitted you thought that triggered your resumption of drinking and offending.
33 You described having commenced your use of cannabis at age 16 and use of amphetamine and methylamphetamine from 20. You said you used methylamphetamine on an ongoing basis up to 1.5 grams per day. You told Dr Cunningham that prior to the offending before me a friend had given you Xanax that you had previously not used. You did not disclose this to police at interview and I discussed that with counsel.
34 You described yourself as a "bad alcoholic", drinking a minimum of six bottles of VB per day. You instructed Mr Dempsey your alcohol consumption increased on parole.
35 Whilst at Barwon Prison you had completed a drug and alcohol course. You had not prior to that been engaged with any similar assistance when in the community. You instructed Mr Dempsey you are now aware you need further counselling and assistance. I discussed your need for counselling and my concerns regarding your likely commitment to it with Mr Dempsey. Prior to your recent period on parole, you had not sought such assistance. I accept, though, for the first time when most recently on parole, you were proactive in arranging appointments with a psychologist to assist you to address your many issues. Unfortunately you did not attend the appointments. I accept the submission by Mr Dempsey that accepting counselling will be difficult for you. You, however, have made a tentative step towards it.
36 I am told you now appreciate and understand the need for professional assistance, however, based on your history, I have concerns that you will be able to and will access that help. As I say, I accept your instructions to Mr Dempsey that you are expressing a genuine desire to obtain help. I hope so.
37 Dr Cunningham referred to your mental state assessment. You reported that you were sexually molested by an older cousin at the age of 10 and were angry your family did not protect you. You continued to feel anger towards your father. You did not trust people. You had difficulty sleeping, were administered medication and you suffered "bad panic attacks frequently." Stress triggered your panic attacks and you were anxious when in custody.
38 You described trauma and guilt in that you were unable to assist your sister prior to her breakdown. You presented as appropriately oriented in time, person and place with no psychotic illness apparent.
39 In the opinion of Dr Cunningham, you met the criteria for diagnosis of borderline personality disorder and post traumatic stress disorder, the latter referable to your own sexual abuse and violence from your father.
40 Regarding your offending, you said you could not recall how much alcohol you had consumed prior to your offending, nor could you recall the offending itself. You are ashamed and upset by your actions.
41 Dr Cunningham also spoke to your mother, Kerry Welch, and obtained further information from her, as detailed within his report, and Dr Cunningham also spoke to your partner Maggie, who described you as anxious and paranoid when in the community. As I say, she remains supportive of you, and you also told Dr Cunningham you continue to be traumatised by thoughts of your sister.
42 Turning to his summary and opinion, your borderline personality disorder and post traumatic stress disorder symptoms were aggravated by your exposure to your sister's psychotic breakdown. Your history of drug and alcohol abuse was an attempt to self-medicate the symptoms of your borderline personality disorder. In his opinion, your borderline personality disorder, combined with alcohol and Xanax abuse on the day of your offending, would have impaired your ability to exercise appropriate judgment. I discussed this with Mr Dempsey, in particular your lack of reference to use of Xanax when interviewed by police.
43 In relation to Verdins[2], I discussed with Mr Dempsey the 'causal link" recently defined in Latif & Ors v R[3] and my concern that the conclusion reached by Dr Cunningham, taking into account your then reported Xanax use, did not appear to be consistent with your lack of reference to Xanax in the record of interview. I discussed with Mr Dempsey your then clear memory of your offending behaviour when recounting same to the police two months later in the record of interview in January 2013.
[2] (2007) 16 VR 269
[3] [2013] VSCA 51
44 Ultimately Mr Dempsey submitted he was not relying upon the restatement of the Tsiaras[4] Principles 1 to 4 and 6 in R v Verdins & Ors rather he submitted it was part of your background, that it reflected your dysfunctional childhood and disadvantaged background. I accept his submission that I was not sentencing a high functioning individual, rather one with a deprived background.
[4] [1996] 1 VR 398
45 Mr Dempsey submitted it was not surprising your background led to what he described as a "dysfunctional kid." I agree it is not surprising, your home environment left you with difficulties coping. It does not surprise me you self-medicated by abusing alcohol and drugs as a result.
46 I accept your background is relevant in that sense to this offending, and whilst not attracting Verdins Principles 1 to 4 or 6, your background, as described, is relevant in general sentencing principles and such warrants some moderation of your sentence. I shall return to the restatement of Principle 5 in Verdins later in these sentencing remarks.
47 Dr Cunningham identified a number of current protective factors that might reduce your risk, including support from your partner Maggie. Further, whilst you had not previously engaged with suitable treatment, you were motivated to engage with such. I have concerns about that, as I have previously stated. However, I hope you do seek and maintain treatment/counselling.
48 Regarding the offending before me, Mr Dempsey submitted it occurred in the broader context of your substance abuse and your difficulty meeting the demands of parole. You could not provide any motive for your offending, although you accepted the victims of your offending had suffered as a result of it.
49 Mr Dempsey conceded important sentencing considerations when sentencing you were totality, deterrence, punishment, protection of the community, remorse and your capacity for reform. He also relied upon your plea of guilty and timing of it.
50 Mr Dempsey conceded on your behalf the burglary and arson charges were serious and correctly observed your offending required denunciation, stern punishment and general deterrence. Mr Dempsey sensibly conceded the offending before me which occurred whilst you were on parole was an aggravating feature and "cast doubt" on your capacity to reform. I also have concerns, as I have stated, about your rehabilitation prospects.
51 Turning to your most recent period of time on parole, you said you began parole at Reservoir Corrections on 6 July 2012, that there were a large number of appointments that you were expected to attend which became overwhelming for you in addition to keeping your employment.
52 You were attending drug and alcohol counselling on parole and participated in urine screening. A positive result for use was indicated on only one occasion.
53 Mr Dempsey also conceded specific deterrence was an important sentencing consideration based on the seriousness of your offending and your extensive and relevant prior criminal history.
54 Returning to the Verdins and the restatement of Tsiaras Principle 5, I accept such applies in your case and that your current diagnosis means your time in custody will weigh more heavily on you than it would on a person without those issues. It is appropriate to moderate your sentence to reflect this, and I have done so.
55 Mr Dempsey conceded a term of imprisonment was the only appropriate disposition, his submissions ultimately directed to the length of that sentence.
56 Turning to general sentencing considerations, Mr Dempsey conceded the offence of arson carried with it a risk of damage to property and also actual damage to property. There was also risk to those who in this case lived next door to the property and those who fought the fire.
57 Upon resumption of your plea on 15 July 2013, Mr Dempsey confirmed his earlier submissions that the diagnosis by Dr Cunningham of your borderline personality disorder and how it had manifested and also your post traumatic stress disorder and how that had manifested, provided background to your offending and whilst not applicable again, he said, to Verdins principles, nevertheless confirmed, as I accepted, that your offending occurred against a background of your many issues.
58 I also accept that following further instructions from you in the days between the two plea hearings, it was you who, for the first time, whilst most recently on parole, made appointments with a psychologist to attempt to deal with and address many of your issues, as I have previously stated. Whilst you did not keep the appointments made, you nevertheless demonstrated initiative in making them, which is a step in the right direction and to your credit.
59
I was also referred to an earlier period of parole, at which time you were granted parole on 14 September 2011 and released into the community on
10 October 2011. However, on 30 December 2011 you were returned to custody after being on parole for a very short period of time. Mr Dempsey submitted at that time you were separated from your partner and your compliance on parole was "a disaster." Your most recent period on parole, whilst it "failed", I accept was for a different reason.
60 I accept the submissions by Mr Dempsey that it has been difficult for you to accept you need a psychologist. You said you were aware it was going to be very difficult for you to discuss many of your issues, however, you knew you needed to address them if you were to remain offence-free. You are now seeking parole support to assist you in your endeavours to address your issues.
61
There was a victim impact statement before me from Horacio De Godoy, president of the Johrei Association Limited, dated 9 July 2013. He described the difficulty that his Association had continuing their missionary work due to damage caused to the property by the fire. They were unable to use the building for meetings as at 9 July 2013. They had needed to find temporary accommodation. The members feared you would return and add to their distress. Mr De Godoy had been stressed trying to rebuild the premises. A significant financial contribution from the Association's members would be required, he said, over and above anything received from the insurers to enable the property to again be used. Without the premises in Carlton,
Mr De Godoy had not been able to undertake many of his work duties to see all the members of the Association as there was no longer a central base for those meetings.
62 The effects of offending upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious I must not allow the effects upon a victim to swamp the sentencing process.
63 Ms Sedgwick, on behalf of the prosecution, urged I conclude that you did have a motive for this offending, that your DNA was at the scene, as you bled heavily, that you knew that and attempted to destroy the evidence of you being at the property.
64 When sentencing on the basis of an aggravating feature, I must apply the principles in R v Storey[5]. While this may have been the reason for the arson, I am not satisfied beyond reasonable doubt it was. As such, I do not regard that as an aggravating feature of your offending when sentencing.
[5] [1998] 1 VR 359
65 Ms Sedgwick submitted you had an extensive prior criminal history, conceding none for arson, although for damage offences, and I am aware of that. I am also aware you have breached a number of court orders in the past. To say that I have guarded optimism regarding your rehabilitation prospects is an understatement. I do have real concerns. Until you deal with the issues, you are going to be back in court time and time again, spending more and more time in custody, and that would be a real pity, as it appears you do at the moment have a partner Maggie who remains prepared to support you.
66 The prosecution provided an initial sentencing range, which I discussed with Ms Sedgwick. She subsequently amended that submission, as discussed on transcript. Ultimately, of course, whilst being mindful of all submissions regarding appropriate disposition, I must determine what is appropriate based on all the circumstances relevant in the sentencing process that are before me.
67 There is no doubt your offending is very concerning. You do have a significant prior criminal history and I do have concerns about your rehabilitation prospects, although accept, as urged by Mr Dempsey, your prospects are not extinguished.
68 As well as taking into account those prospects, I must also take into account general deterrence, which is of considerable importance in a case such as this. There is also a need for specific deterrence when sentencing you, based on the seriousness of your offending and your significant prior criminal history. When sentencing you, I need to consider the members of the community and bear in mind the likelihood of your re-offending. I am still concerned about the need to protect the community from you. I am conscious Dr Cunningham has recommended you receive certain treatment which may assist your ability to avoid re-offending and thus protect members of the community. However, your history to date in relation to seeking out such help is not comforting. This troubles me. There is the need to protect the community from you. I am, as I have said, concerned about your likelihood of re-offending.
69 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. You are currently serving a period ordered by the Parole Board of one year two months and 27 days (proximately 15 months) and I must assume that sentence will need to be served in its entirety before you commence the sentence imposed for the offences before me.
70 The principles of totality and proportionality continue to apply when sentencing despite the prescription of cumulation.
71 On Charge 1, convicted and sentenced to 12 months' imprisonment.
72 On Charge 2, convicted and sentenced to 3 years' imprisonment.
73 Charge 2 is the base sentence, and I direct that 5 months of Charge 1 be served cumulatively upon Charge 2, which results in a sentence of 3 years and 5 months' imprisonment for the offences before me, and I order you serve a period of 2 years 4 months from today's date before you are eligible for parole relevant to the two charges before me. I am aware that 3 years and 5 months may be required to be served by you cumulatively upon the reclaimed parole that you are currently serving.
74 Now I should indicate to you, the sentence I have imposed is less than the Director has urged, so he may say I got it wrong, I am too lenient. So I just let you know that. Beware that the sentence that was urged by the Director is more, rather, than I have imposed.
75 PRISONER: Does that include the parole?
76 HER HONOUR: Yes, well, when you add - Mr Dempsey will explain it. The sentence I have imposed is less than the prosecution, and also less than the time, as I have worked it out, on parole. So the Director might have a look at this and say "She is too light." So beware, that is all I am saying. It may not be the end of the matter.
77 PRISONER: (Indistinct).
78 HER HONOUR: Right, so let us move on.
79 Had you been found guilty of these charges following jury verdict, I would have sentenced you on these charges to a total effective sentence of 5 years and 4 months and I would have set a non-parole period of 4 years on these two charges, which of course would have also been on top. No other orders were sought.
80 I should indicate that that the figures were based on the revised prosecution figures, all right?
81 MR NANKIN: Yes, Your Honour.
82 HER HONOUR: Not the original ones, which I considered to be excessive. All right. Is there anything requiring clarification?
83 MR NANKIN: No, Your Honour.
84 HER HONOUR: Two days PSD, I think I had better declare that, hadn't I?
85 MR NANKIN: You had.
86 HER HONOUR: My apologies. Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 2 days in custody by way of pre-sentence detention for these matters, and I direct that that be entered into the records of the court. No other orders were sought, as far as I can tell.
87 MR NANKIN: No, Your Honour.
88 HER HONOUR: No. I think that is pretty right. Is there anything further?
89 MR DEMPSEY: No, Your Honour.
90 HER HONOUR: Did you have anything more to say? You were about to stand up?
91 HER HONOUR: Can you remove Mr Welch, please? Thank you both very much for your assistance. Thank you.
- - -
0