Director of Public Prosecutions v Zarabski
[2015] VCC 39
•01 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00037
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAREK ZARABSKI |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2015 | |
DATE OF SENTENCE: | 01 February 2016 | |
CASE MAY BE CITED AS: | DPP v Zarabski | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 39 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law- Sentencing- Criminal Damage by fire (Arson)- Psychiatric Condition- Schizophrenia- Verdins Principles enlivened- Sentenced to 3 years imprisonment with 15 months non parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Hutton (Plea) Ms. J. Fellar (Sentence) | Vaille Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Ms J Javor | Slink & Keating |
HER HONOUR:
1 Darek Zarabski, you have pleaded guilty before me to one charge of criminal damage by fire (arson). This is a serious offence, and that is reflected in the maximum penalty that is prescribed by Parliament, and that is 15 years’ imprisonment.
2
In addition, you admitted to me your prior criminal history, and there are some six court appearances spanning the period between 2 March 2012 and
31 March 2014. This current offence occurred during the operational period of a suspended sentence that was imposed by the Dandenong Magistrates’ Court on 31 March 2014, and that is an aggravating factor that I have taken into account.
3 You have committed subsequent offending, and that was dealt with at the Magistrates’ Court, Dandenong, on 5 November 2014, where you pleaded guilty to two thefts from a shop and theft from a motor vehicle. The breach of your suspended sentence matter was also dealt with on that occasion. The breach was found proven and the partially suspended sentence of three months was then restored, and you were sentenced to six months for the fresh offending, and the order was that that sentence run concurrently with the partially suspended sentence that was restored.
4 I am now going to sentence you in respect to the one charge of criminal damage by fire (arson), and I have had regard to the facts and circumstances as was opened by the prosecutor on the previous occasion, which he read to the court.
5 On 8 October 2014 you were a resident at Unit 14, 60 Clow Street, Dandenong, and one of your neighbours, Elizabeth Lloyd, resided at a nearby unit; Unit 46. On that day Ms Lloyd borrowed $10 from you and an argument subsequently ensued about that money, and you were seen by others outside her unit yelling, “I’m going to burn your house down." She was seen to walk away from you.
6 On the morning of 9 October another neighbour saw you walking past her unit carrying a bottle with liquid in it and a rag stuffed in the top of the bottle. Another neighbour heard you having an argument with Ms Lloyd about money and heard you say to her, “I’m going to pay you back”, and to another person, “I’m going to get her."
7
At about 11 am police and fire brigade attended a fire at the unit where
Ms Lloyd was residing, and on arrival they saw you standing in the driveway near the main entrance to the property. You were arrested after the police saw you throwing a lighter into nearby bushes.
8 Fire experts examined the scene and determined the fire commenced in the lounge of the unit with an accelerant; namely kerosene. Ms Lloyd’s unit was extensively damaged and also the adjacent units were damaged. The damage to her unit was estimated to be approximately $250,000. Her unit was insured with QBE Insurance.
9
Following your arrest at the scene you were interviewed. You denied lighting the fire. You told police you smelt of petrol because you had been cleaning the frame of your bicycle. You told them that you had loaned money to
Ms Lloyd - $15 - and that there had been an argument about the money the night before. You told her to keep the money and not to "push your buttons". You denied saying you were going to burn down her house and you said you did not set fire to the unit.
10 Ms Lloyd, and also the owner of her unit, have both declined to make victim impact statements. Notwithstanding that, it is evident from their police statements they would have been upset and inconvenienced greatly as a consequence of your actions, and I have taken that into account.
11 Following your arrest you were remanded in custody on 9 October 2014, and you have now completed the sentence that I outlined earlier. Your matter proceeded by way of a filing hearing on 10 October 2014 and a committal mention on 9 January 2015; at which time you were committed for trial. There was no contest at the committal, and so no witnesses were examined. The trial was listed in this court for 5 October 2015, but it resolved after the final directions hearing on 14 August, at which time you were arraigned and pleaded guilty to this charge.
12 Ms Javor, on your behalf, acknowledged the seriousness of the offending and confirmed, in accordance with the authority of Stallworthy [2002] VSCA 135, that in the event an offence as serious as arson, where arson is committed and destroys a person’s home, that it must ordinarily call for a custodial term of imprisonment. She accepted that this was a serious example of this offence; involving, as it does, extensive damage to Ms Lloyd’s unit, and the neighbouring units, and in sentencing you there is a need for me to impose just punishment, and also that the sentence reflects specific and general deterrence, which is important in these sorts of matters.
13 By way of background, you were born in Poland on 23 November 1971. Your parents came to Australia when you were about 13, in 1984. There is a brother with whom you have some contact and he lives in New South Wales. He is married and has a daughter; your three year old niece, and your parents are separated. Your mother lives in the ACT and you have had no contact with your father for some time.
14 In the past you were educated in various schools and found it hard to fit in because of your Polish background. You did complete Year 11 in New South Wales and then worked as a painter and decorator; successfully running and owing your own business by the age of 25.
15 Since the early 1990s you have been diagnosed with schizophrenia, and I note that you are continuing to be prescribed medication for this condition; namely Zyprexa and Avanza. You are currently also taking methadone opiate replacement therapy. You were diagnosed with schizophrenia many years ago in New South Wales, but the precise details of your past psychiatric history are not known, and that is confirmed in the latest report from Dr Patel. You moved to Victoria about 10 years ago and you have been on the disability support pension since 2000 because of your psychiatric condition. You had lived in the unit in Clow Street for about three years.
16 As a consequence of the remand you received an eviction notice and you are unable to live in the Clow Street unit any longer.
17 I have noted your known history of drug and alcohol abuse. You were a regular drinker in your 20s and you began using substances to self-medicate in your late 20s. You have a history of cannabis and heroin use and you have been on methadone for about 15 years, and you have been dabbling with using ice for about three years.
18 At the time of the incident you were using both ice and marijuana. You were not taking your prescribed medications. You had also drunk some Jim Beam on the morning of the offence, and you were experiencing voices and paranoid thoughts. You believed Ms Lloyd was laughing at you and you were hearing things coming from the television. You had also had some Xanax that morning.
19 Ms Javor, on your behalf, did not seek to rely on the defence of mental impairment. She adopted the findings of Dr Gallogly, consultant psychiatrist, who, in his report of 7 October 2015, confirmed at the time of the incident you were experiencing a deterioration in your mental health, with paranoid ideas about Ms Lloyd and the other neighbours, but despite that, at the material time it would not have been impacting on your ability to understand the wrongfulness of your actions.
20 He did qualify that statement by saying that an individual experiencing psychotic symptoms would sometimes make decisions they might not otherwise make, and the judgment they make about their behaviour in response to such experiences would be affected. Therefore, he expressed the view that the symptoms would be contributing to the offending behaviour in this manner. He did add that by your own account you were actively using substances and you were injecting ice in the week leading up to the offence, and that coincided with your reported lack of adherence to prescribed medications, and your decisions to use substances therefore also had a bearing on the subsequent behaviour.
21 His professional opinion is very much reflected in what is said by Dr Patel in his report, and in particular, I refer to his expressed opinion where he confirms that a description of your chronic psychotic symptoms is most probably consistent with the presence of a schizophrenic illness rather than simply the product of ongoing illicit substance abuse. Dr Patel states that you have evidence of anti-personality disorder that started with some evidence in childhood, and subsequently you have displayed difficulties in sustaining long term relationships and have engaged in anti-social behaviour. You have a significant history of ongoing polysubstance misuse which also impacted on your ability to form stable relationships and engage in meaningful behaviour, and he considered at the time of the offending the most significant factors impacting on your behaviour were your sense of anger and frustration towards the victim coupled with your state of alcohol and benzodiazepine intoxication. The latter resulted in a disinhibition of your behaviour and an accentuation of your aroused emotional state, as well as impairing your judgment and thinking around the consequences of your actions.
22 So both the psychiatrists who have had the opportunity of speaking with you form the opinion that at the time of the offending the presence of your mental illness was likely to have been a factor influencing actions, but in a limited rather than substantial way, and to that extent I have taken that into account; that is that your judgment was impaired to a very limited degree by reason of the presence of your mental illness.
23 I do consider that this is a serious example of this serious offence, as was stated by counsel. The consequences of your actions were such that somebody was deprived of their home and you must understand how much that impacts on people. I do acknowledge now that you have greater insight into what you do, and that you now accept what you did was wrong and you wish the fire did not happen, and if you had your time back again you would not have started the fire.
24
I acknowledge now that you do have insight into what you did, and that you know now that it was wrong, but I have taken into account the other factors that have been set out in the reports of
Dr Patel and Dr Gallogly that I have referred to before, and I have moderated your moral culpability to a limited extent, and I have also moderated the need to emphasise general and specific deterrence to a limited extent in the sentence that I am about to impose.
25 I have come to the conclusion that by reason of your present psychiatric condition it will mean that any given sentence will weigh more heavily upon you than it would on a person of normal health, and I refer to the comments made by Dr Patel where he says, "Mr Zarabski is likely to find prison more stressful than others due to the presence of a mental illness, with an increased risk of paranoia, particularly in situations in which he feels unable to escape, and where demands are placed upon him." Nonetheless, I accept that he has stated that over the last year or more you have been able to cope in prison without undue obvious impact on your ability to engage with others, and in appropriate activities. He discounts prison having a significant adverse effect on your mental health, and makes the comment that it has actually been good for you in so far as you are now compliant with your medication, willing to engage with programs, and, in particular, you are engaging in programs designed to assist you to remain free of substance misuse, and you have shown a willingness to develop relevant life skills because you are keen to back into the community and live in a more meaningful way.
26 I have taken into account that prison would weigh more heavily upon you by your present psychiatric condition, but that has been tapered, to an extent, by those comments.
27 Since you have been in custody you have been held at the MAP Prison, Fulham Prison and Port Phillip Prison. You have worked in the kitchen and you have also undertaken a small business and IT course. You have settled and become compliant, as I said before, in respect to taking your medication, and your condition has settled well in prison. You are engaging in the programs that I have earlier described to assist you with your history of drug abuse, and also to develop your life skills. So all of those factors weigh heavily in your favour, I think that the prospects of rehabilitation for you are good - provided that you do remain abstinent from drugs and alcohol, that you do continue to commit to programs that mean that you can utilise your life skills. I also consider, in the future, the need for counselling for anger management. All those factors weigh in your favour in order to keep you crime free.
28 I have, in your favour, taken into account your plea of guilty. I note that it was not entered at the earliest opportunity, but it was entered prior to trial, and it was one that can be said to be of real utility. You have spared the primary victim, and others associated with the case, the inconvenience and necessity of having to come to court and give evidence in your trial. They have never been the subject of cross-examination. And also, you have saved the State the expense and inconvenience of having to conduct a trial. You have facilitated justice and your sentence will be discounted accordingly.
29 In terms of the future, there is obviously a road map that is set out for any parole authorities, or anyone else assisting you to transition back into the community. I note that you have indicated your willingness to involve yourself in the “Partners in Recovery” South Eastern Melbourne program, where they work with individuals to improve a range of supports across different sectors to help them meet their individual needs. And in particular, they work with other organisations to ensure the right services and supports are in place to improve a person's mental health and well-being where they are transitioning from gaol. So that is an important organisation. If you follow through with the referrals and the support they provide that too will help you.
30
But I do urge the authorities to consider the recommendations made by
Dr Gallogly, where he says that the programs and treatments that would assist you for your rehabilitation and management of your chronic psychiatric illness are that you stop use of all substances, stop drinking alcohol, engage in drug and alcohol counselling programs, attend 12 step programs such as AA or NA, ensure that you have established links with a consistent general practitioner who can provide you with mental health care and prescribe medication appropriately, ensure that you have access to a psychiatrist who can monitor your mental health, and in particular, any deterioration in your mental health, and also provide you with specialist employment services with pathways, such as an organisation that is known as ACSO can provide, and that you be seen by a psychiatrist whilst you are in prison, and upon your release.
31 It is very important that these recommendations should be given serious consideration and priority by the authorities if this community is to be protected from you, and to ensure that you remain crime free. But I do appreciate, Mr Zarabski, that you have made significant efforts during your time in prison, and that is reflected in the sentence I am about to impose.
32 The formal court order is in respect to the one charge of criminal damage (arson). You are convicted and sentenced to three years' imprisonment with a non-parole period fixed of 15 months' imprisonment.
33 I declare that you have served 300 days of the sentence I have imposed and direct that that be entered into the records of the court.
34 I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991. But for your plea of guilty I would have imposed a term of imprisonment of five years, to serve three years' imprisonment.
35 I make the disposal order sought, and I make the forensic order sought pursuant to s.464ZF(2) of the Crimes Act 1958, and that is because of the seriousness of the circumstances of the offending and the fact the order is made by consent. I consider the order ought to be granted in the public interest.
36 So what that means, Mr Zarabski, is the police will give you a cotton bud to place inside your mouth to scrape against your side, and provided you do that, that is the end of the procedure, but if you do not consent to the taking of that sample then such sample can be taken under supervision, or an authorised member of the police force may use reasonable force to ensure the forensic procedure is carried out. Do you understand that?
37 OFFENDER: So how long did I get sentenced? Three years, 15 months on the bottom?
38 HER HONOUR: Yes. And so 15 months less 300 days - - -
39 OFFENDER: Yeah.
40 HER HONOUR: - - - is the balance of the time left to go.
41 OFFENDER: Yep, all right.
42 HER HONOUR: So it's only a few months extra.
43 OFFENDER: All right. Thank you, Your Honour.
44 HER HONOUR: All right?
45 OFFENDER: All right, thank you/
46 HER HONOUR: Because you've already served quite a bit of time. Hang on, I'll just make sure I've got everything.
47 OFFENDER: Yeah, right.
48 HER HONOUR: Have I attended to everything?
49 MS FALLAR: Yes, Your Honour.
50 MS JAVOR: Yes.
51 MS FALLAR: I say only this. While this is a matter for Your Honour, hearing Your Honour's comments about urging the authorities in relation to Dr Gallogly's report.
52 HER HONOUR: I will send it to the - - -
53 MS FALLAR: Thank you.
54 HER HONOUR: - - - Adult Parole Board. I will be sending my sentencing remarks and the two reports to the Adult Parole Board for you, and also a copy of your program, with the strong request that they monitor you closely, and support you closely on your release so that you are not set up to fail, all right?
55 OFFENDER: All right, thank you.
56 HER HONOUR: All right?
57 OFFENDER: Thank you, Your Honour.
58 HER HONOUR: Because when you are good you are fine.
59 OFFENDER: Yeah.
60 HER HONOUR: You are, you look fantastic. So let's hope it all goes well.
61 OFFENDER: All right.
62 HER HONOUR: All right.
63 OFFENDER: Thank you, Your Honour.
64 HER HONOUR: All right, bye.
65 OFFENDER: Bye.
66 MS JAVOUR: As Your Honour pleases.
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