Director of Public Prosecutions v Whitehead

[2019] VCC 264

IN THE COUNTY COURT OF VICTORIA      Revised
   Not Restricted
    Suitable for Publication

AT BENDIGO and MELBOURNE
CRIMINAL JURISDICTION

CR 17-01088

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB WHITEHEAD

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Bendigo
DATE OF HEARING:	12 June 2018 (Bendigo);30 August 2018 (Geelong); 7 March (Melbourne)
DATE OF SENTENCE:	7 March 2019
CASE MAY BE CITED AS:	DPP v Whitehead
MEDIUM NEUTRAL CITATION:	[2019] VCC 264

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.Moore	Office of Public Prosecutions
For the Accused	Mr P. Smallwood	Emma Turnbull, Lawyers

HIS HONOUR:

1Mr Whitehead, on 25 June 2018, a jury found that you were unfit to plead on an indictment with two counts of intentionally or recklessly causing a bushfire.  The second jury then found that you had committed the two offences.

2The facts of the offending can be neatly summarised.  On 14 January and 15 January 2016 you were with Brandon Poole, Robert Humphrey and two other young men in a motor vehicle that travelled from Maryborough to Avoca and down to Ballarat, and then returned along the Sunraysia Highway through Avoca to Bealiba.  During the journey on 14 January two roadside bushfires were lit.  The first was recorded at Lexton, at 2332 and the second at Waubra some 14 minutes later.  On journey back from Ballarat a further roadside fire was lit at Lamplough.  It was reported at 3.48, on 15 January 2016.  Fortunately, each fire was extinguished after a prompt response by the CFA.

3The site of the first fire was the grass verge on the eastern side of the duel single lane highway and an area approximately 23 metres by 19 metres along the verge was burnt.  The fire had entered a paddock near its northern end, but the damage was limited due to lack of vegetation along the fence line.  The second fire was started near the edge of a roadside drain, it did not cause any significant damage.  The third fire was located on the west side of the Sunraysia Highway near the Woodstock road.  The fire was started on top of an embankment and it spread to cover an area of approximately 178 metres by 25 metres along the verge, extending from near the road edge to the paddock fence.  The fire had not entered the paddock significantly.

4Your behaviour in being a party to the lighting of these fires is covered by Charge 1 on the indictment, it is a rolled up charge.

5On 17 January 2016 you were again driving around in the company of Mr Poole and Mr Humphrey.  At about 12.10 am you drove along the Avoca Bealiba Road and stopped near a haystack on a farm at Archdale.  Poole got out of the car and watched as you light the haystack with a cigarette lighter.  You then left the area.  The haystack was totally destroyed.  The fire spread from the haystack and travelled towards a farm house, situated approximately 50 metres away.  The fire burnt to within 15 metres of the house before being extinguished by CFA units.  A 90 year old woman was asleep inside the premises and only became aware of the fire when she was alerted by the CFA.  The hay was valued at $6,000.  Your involvement in lighting this fire is the basis of the second charge on the indictment.

6I have read the victim impact statement from the victim of the second charge.  He says that he has moved on from the destruction his hay.  Understandably, his main concern is the danger that arose to his 90 year old mother who was asleep in the house.  As he says,

"Her home was close to being burnt down while she slept".

7This is a serious matter.  The first charge relates to the lighting of fires in open, dry country late at night.  The prospect of considerable damage is obvious.  It was fortuitous that the CFA attended so quickly and limited the damage.  The second charge is even more serious, exposing as it did an elderly woman to grave danger.

8Mr Whitehead, in normal circumstances a person who commits this type of offence would be found to be in need of supervision and depending on their personal circumstances placed on either a custodial or a non-custodial supervision order.  However, your counsel submitted that there were compelling reasons why in this case I should make the unusual order of discharging you unconditionally.

9In determining the most appropriate order I am required to apply the law as set out in sections 39 and 40 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act).

10Section 39 of the Act sets out the principle the court must apply in deciding whether, among other things, to make a supervision order. Under this section any restrictions on your freedom and autonomy should be kept to a minimum, consistent with the safety of the community.

11Section 40 of the Act details the matters to which I must have regard in making the s.39 assessment. In this case, one of the most important matters for me to consider is whether you would, if released unconditionally, be likely to endanger yourself, another person or other people.

12In deciding this issue I have taken account of the following matters.

13First, unlike your two co-offenders, you have no prior convictions.

14Secondly, when you committed these offences you were 20 years old.  You are a youthful offender and even though this offending is serious, rehabilitation remains a highly relevant sentencing consideration.  You have not been involved in any further offending for over three years and that is a strong indication that you are focused on your rehabilitation.  You have very strong family support.  Since your release on bail you have been residing with your family and working full time at the family farm.

15Thirdly, I am satisfied that you were influenced to commit these offences by your co-offenders, both of whom had been in trouble before for this type of offending.  One of the co-offenders, Mr Poole, told a covert police operative that he taught you how to set hay bales on fire by using a lighter and where to place the lighter.  He also said that you had never lit a fire until he got you into it.

16Fourthly, it is significant that you spent some time, albeit a short period, on remand.  You were remanded on 2 March 2016.  This period in remand had a significant affect upon you.  After a contested bail application on 16 March you were released on bail with strict conditions.  The police opposed bail at that time because of a concern that you would commit further offences, which has not happened.  You have been complying with the strict bail conditions, including a condition not to associate with your co-offenders.  Importantly, you returned to live at your family home after being released on bail.  As I have already said, your family has provided strong support and supervision and there has been no further trouble.

17Fifthly, it is relevant that you have a long-standing intellectual disability.  You attended a school program for intellectually disabled children during your secondary schooling.  In 2008 your cognitive functioning was assessed in the extremely low range, with an IQ of 45.  A more recent assessment, conducted at the request of Dr Anne Davidson from Forensicare, disclosed an IQ estimated at 48.

18Dr Davidson opined that it was your cognitive impairment arising from your intellectual disability that prevented your from understanding and meaningfully participating in the court process.  She recommended ongoing psychological intervention to assist you manage difficult emotions during times of stress.  In addition, she noted that you would benefit from assistance with problem solving and decision making strategies in interpersonal situations.  She said that such assistance would be best provided by a clinical psychologist, with expertise in intellectual disability.

19In this context, it is important to recognise that you and your family have been proactive in seeking assistance.  Since November 2016 you have been seeing Mr Andrew Sullivan, a mental health occupational therapist with 18 years' experience working with children and adults.  You first saw him when he was consulting at headspace, you now see him at Optiform.  In a report, dated 13 June 2018, he described how you have participated in a course of strength based cognitive therapy every two to six weeks, over a 12 month period.  You have gradually developed confidence and competence in describing emotion and have been able to implement practical strategies to manage anxiety and negative emotion.  Mr Sullivan notes that the emotional and practical support provided by your family is a major part of your ongoing stability.  He opines that it would be of great benefit for you to continue with treatment.

20You also saw a clinical psychologist, Ms Diane Williams, who supported you, pursuant to a mental healthcare plan.

21Finally and most importantly of all, pursuant to s.40(2) of the Act, I ordered that an assessment be conducted by a registered psychologist and a report provided to the court. The assessment was carried out by Dr Joseph Sakdalan, a consulting clinical psychologist and neuropsychologist, who is currently the senior clinical psychologist in the problem behaviour program at the Community Forensic Mental Health Service (Forensicare.)

22In his comprehensive report the doctor identifies the protective factors in your life.  Namely, no prior criminal convictions, no subsequent trouble, strong family support and stable accommodation, full time work, no connections to antisocial companions, a period of compliance with bail, compliance with treatment, and a lack of pro-criminal attitudes.  He opines that your risk of reoffending is low.

23Dr Sakdalan concludes his report as follows,

"Mr Whitehead has complied with his bail conditions since 2016.  There's not been any reported risk of problematic behaviours during this time.  Mr Whitehead has received ongoing support from his family, which can be considered a strong protective factor.  His risk of reoffending in a similar manner as his index offending was assessed as low.  I am of the opinion that he does not pose any risk to the community".

He recommends that you continue to attend individual treatment with Mr Sullivan.  Action on this recommendation can, he notes, be implemented by your parents and does not necessarily require you to be under an order.  He says,

"That there is good indication that Mr Whitehead would continue to engage in treatment, given the support he has been receiving from his parents".

24Mr Whitehead, I accept Dr Sakdalan's assessment.  

25For the reasons I have given, I release you unconditionally pursuant to s18 (4)(b) of the Act. I note Dr Sakdalan's recommendation that you continue to see Mr Sullivan, I endorse that recommendation.  I am very confident that your family will continue to ensure that you do so.

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