DPP v Briggs
[2016] VCC 1557
•19 October 2016 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT HORSHAM & MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01574
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW ROBERT BRIGGS |
---
JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Horsham & Melbourne | |
DATE OF HEARING: | 21 April 2016 (Horsham), 28 July 2016 (Melbourne) & 19 October 2016 (Melbourne) | |
DATE OF SENTENCE: | 19 October 2016 (Melbourne) | |
CASE MAY BE CITED AS: | DPP v Briggs | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1557 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Recklessly causing bushfires (x4) – fires lit to ‘get even’ with CFA - damage confined – offending strikes at the heart of the rural community - no criminal record – dysfunctional personality characterised by a degree of suspiciousness, paranoia and social isolation
Legislation Cited:
Cases Cited:
Sentence: Imprisonment for 9 months followed by Community Correction Order for 3 years with supervision over duration of Order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Moran | Office of Public Prosecutions |
| For the Accused | Mr D. Gibson | Victoria Legal Aid |
HIS HONOUR:
1 Andrew Robert Briggs, you have pleaded guilty to four charges of having recklessly caused a bushfire, and a fifth charge of having a number of items in your possession for the purpose of destroying or damaging property.
2 A prosecution plea opening has been tendered as Exhibit A. It is unnecessary to repeat every detail and a summary will suffice.
3 Between March 2013 and December 2014, you lit four fires near the township of Great Western. Great Western is located 225 kilometres north-west of Melbourne and 37 kilometres east of the Grampians National Park.
4 You moved to Great Western in the early 1970s as a child. Your parents are famers and are well-known in the local community. During the time that you offended, you lived at the family home in Great Western with your parents.
5 All of the fires were within ten kilometres of where you lived and each of them was lit during designated fire danger periods. The effect of that restriction meant that fires were not permitted to be lit in the open air without a permit.
6 You joined the Great Western Country Fire Authority (CFA) as a teenager in 1979.
7 Charge 1 concerns you lighting a fire on 23 March 2013. The fire was lit in grassland at Great Western, approximately 200 metres from the Western Highway. The location was about 1.5 kilometres from your home.
8 The fire was confined to five square metres of land, due to prompt attendance and intervention of the Country Fire Authority. Investigators located a quantity of paper at the scene of the fire, including a receipt from the IGA at Stawell, which was in your name.
9 Police attended the location within 60 minutes after the fire was reported and, whilst they were present, you were observed returning to the scene of the fire in your car and upon seeing police and CFA members, driving away from the scene. Your vehicle was pursued and you were intercepted.
10 On 10 April 2014, you were arrested and interviewed. You denied lighting the fire, but in the course of the interview, you informed police that you were dissatisfied with your treatment by the Great Western Brigade of the CFA when you were refused a position on a strike team which attended at an extensive bushfire in February 2013. However, you were not deterred by the police interviewing you.
11 On 6 November 2014, you drove to an area near Bulgana, which is to the east of Great Western, and lit a fire there. The fire burnt approximately a quarter of an acre of bushland. Tyre marks that you left at the scene led to your detection.
12 Within a matter of weeks you lit further fires.
13 On 14 December 2014, at about 12 am, you drove to a reserve on Salt Creek Road, Great Western. You then lit two fires within a short distance from each other. One fire destroyed an area of approximately 50 metres by 50 metres, while the other fire, which was lit in a dry creek bed, burnt an area of five metres by five metres.
14 Your car was detected by cameras that had been set-up by officers from the Department of Environment & Primary Industry.
15 On 19 December 2014, at about 6.30 am, you drove to work. You deviated and drove along Bulgana Road for about two kilometres, before taking out a candle and a cigarette lighter which you had in your car. You placed the candle in tufted grass, lit it, walked back to your car and drove to work.
16 At 8.50 am, smoke was seen by the Stawell CFA lookout tower. The fire was extinguished. It had burnt approximately ten acres of paddock grassland.
17 You were detected, as a result of a tracking device that had been placed on your car.
18 Later that day, you were arrested as you left work. Your car was searched. Inside the car, police ten 10 Bic lighters, nine packets of Redheads matches, one packet of firelighters and a large amount of toilet paper and some newspapers. Those items are the subject of Charge 5 on the indictment, being the possession of items for the purpose of damaging property.
19 On the same day, you were interviewed and asked about the fire that had occurred near Bulgana Road. You admitted to lighting the fire and said you had done it to “piss a few people off”. When asked why you lit a candle, you said, “Gives me time to go and walk back to the vehicle and just quietly – just go off to work”. When asked how you felt when lighting the fire, you said, “Doesn’t worry me one way or the other”. When explaining the location where the fire had been lit, you said, “Just small area where there’s a little bit of grass. Yeah, so it would just - it just burn, just - just enough to bloody - before someone finds it”. You said that the people you were trying to “piss off” were the fire brigade people who had given you a “friggin’ hard time”. You stated, “I do get pissed off about a heap of people and I don’t know how to get back at the pricks”.
20 You denied lighting any fires, apart from that which occurred on 19 December 2014.
21 After your arrest, you were remanded in custody until 26 February 2015, when you were released on bail. On 9 September 2015, the matter resolved on the second day of a three day contested committal. On 21 April 2016, your bail was extended so that a psychological report could be obtained from Professor James Ogloff. On 28 July 2016, I remanded you in custody and ordered a full assessment for a community corrections order, which I intended should commence upon your release from prison.
22 I turn to your personal circumstances.
23 You are now 49 years old. You have always lived with your parents on their farm at Great Western, except when travelling for work as a shearer. Your parents, who are now in their early 70s, are pillars of the local community. They supported you in court and present as decent and fine people. Your father is a life member of the local football club and is actively involved in community bodies. He has been a member of the CFA for 50 years. Your mother has worked in wineries and as a shop assistant. Your family is close-knit. Your offending has caused considerable strain on them but, to their credit, they stand by you.
24 A number of reports have been tendered which detail your life history. Warren Simmons, consultant psychologist, has authored two reports, respectively dated 12 January 2015 and 16 October 2015. Another report was provided from Professor James Ogloff, clinical and forensic psychologist, dated 4 July 2016. On 28 July 2016, I requested a short addendum report from Professor Ogloff to clarify a paragraph in his report. Professor Ogloff kindly provided a most helpful amplification.
25 All but one year of your primary schooling was at Great Western. You told Mr. Simmons that you were of average academic level, but struggled with reading and spelling. Subsequently, you attended Stawell Technical College, but did not complete Year 11. You told Professor Ogloff that you “took every day as it came”. You reported having had few friends and that while you did “all right”, you were not academically oriented.
26 Your mother told Mr. Simmons that you were a bit of a loner growing up and that you seemed to relate better to older people than to younger people. At various times you were teased by your peers and your mother said that you had been quite isolated and lonely.
27 After leaving school, you commenced an apprenticeship as a carpenter and joiner, but did not complete it. You have mainly undertaken casual work, including shearing, working at vineyards and as a roustabout.
28 Intelligence testing put you in the below-average range of intellectual functioning.
29 You do not have a criminal record and have not been charged with further offences since your arrest on 19 December 2014.
30 In order to better understand your motivation and your risk of re-offending, this court encouraged your legal representatives to obtain a further psychological assessment from Professor Ogloff, who has particular expertise in this area.
31 When speaking to Professor Ogloff, you admitted using a candle to start a fire, but were otherwise a bit vague about your offending. Professor Ogloff noted that, consistent with your record of interview, you said that you were “pissed off by a few people” and “angry at the CFA” when you lit the fires. However, upon further questioning, you became increasingly vague and evasive about your behaviour or the motivation for it. Your anxiety level became elevated and you fidgeted and stuttered when you spoke.
32 At paragraph 25 of his original report, Professor Ogloff wrote:
“Over time, while further discussing the offending behaviour, it appears that Mr. Briggs lit the fire at times when he had been angry and seeking revenge for his perceived slights by others. As far as I can tell, his anger was general and not directed to any particular individuals. At such times, when he found himself generally angry, he set out to light the fires. As indicated, he used a candle to set at least one of the fires by lighting the candle and surrounding it with dry grass and other flammable media that would ignite as the candle burnt, causing a bushfire. Mr. Briggs stated that he did not feel "anything" when he lit the fires, however, when discussing the behaviour, it is clear that his mastery over the fire overtook the angry feelings that he had, at least temporarily. This pattern of becoming angry, contemplating and planning to set a fire, lighting a fire, feeling a degree of mastery and satisfaction, was reinforcing for him.”
33 The extent to which your lighting of fires was payback for perceived slights by the CFA and the degree of satisfaction you felt upon lighting a fire, are highly relevant to your future risk. In order to gain a fuller understanding of Professor Ogloff’s opinion, the request was made for an addendum to paragraph 25 of his original report. It is appropriate to reproduce Professor Ogloff’s response:
“To understand the meaning of the clause ‘feeling a degree of mastery and satisfaction’, it is important to understand some of Mr. Briggs’ underlying characteristics. As I noted in the original report, Mr. Briggs is an ineffectual man. His level of crystallised knowledge and verbal capacity is in the well below average range, which has resulted in his level of intellectual reasoning and verbal comprehension being impoverished (paragraph 43). Despite being a man of 49 years, he has always lived at home with his parents and is somewhat socially isolated from others (paragraph 41). He also has not had any live-in intimate relationships with women (paragraph 41). He did not do well at school (paragraph 12), failed to complete an apprenticeship in carpentry, has worked mostly casually, and receives Centrelink benefits (paragraph 14). In addition to these factors, he harbours a degree of resentment to people around him and tends to externalise responsibility for his own inadequacies during life, while blaming others for perceived improprieties to him (paragraph 41). The results of the Personality Assessment Inventory indicated also that he is a person with significant thinking and concentration difficulties, accompanied by a degree of hostility, resentment and suspiciousness’ (paragraph 27)
As noted in paragraph 25, "Mr. Briggs lit fires at times when he was angry and seeking revenge for his perceived slights by others. For Mr. Briggs, setting fires became a way of overcoming feelings of anger and resentment. In my opinion, therefore, thinking about planning, carrying out actions toward, and ultimately successfully setting the fires, gave him a sense of power and control which replaced, only temporarily, his general feelings of resentment and inadequacy. Setting fires was the one thing in his life that he controlled and mastered. Thus, the ‘degree of mastery and satisfaction’ that I noted related more to his internal feelings and levels of satisfaction, than any outward expression of either the fire setting itself or the negative impact the fires had on the community.”
34 After administering the Personality Assessment Inventory, Professor Ogloff Concluded:
“The diagnostic presentation most consistent with Mr. Briggs’ clinical profile, is that of a low grade, chronic depressive illness, coupled with a dysfunctional personality, characterised by a degree of suspiciousness, paranoia and social isolation.”
35
Your general risk of re-offending and the specific risk that you will light fires in the future, was specially considered by Professor Ogloff. He employed the Level of Service/Risk, Need and Responsivity (LS/RNR), a tool for evaluating the extent to which an individual presents, with known risk factors for general re-offending. Overall, your profile indicates that you are not particularly criminogenic and certainly not an entrenched offender. While you share some of the characteristics with people who engage in repeated lighting of fires, you are not charged with lighting fires at a young age, are not a product of
a dysfunctional family and have no known history of committing criminal offences.
36 Professor Ogloff considered that you do not satisfy the criteria for a diagnosis of pyromania and that overall you demonstrate a low-moderate level of risk for future re-offending. Professor Ogloff notes that:
“Given that he is a generally pro-social individual and has been affected by the experience of having been arrested and incarcerated on remand, his overall level of risk for repeat fire setting does not appear to be elevated to a high level.”
37 As to your risk of engaging in similar conduct in the future, Professor Ogloff stated that:
"Your overall risk for offending by further fire setting appears to be in the medium range.”
38 Professor Ogloff expressed the opinion that you could benefit from psychological intervention, in order to assist you in challenging your suspicious perceptions of others and to enhance your mechanisms for coping with anger and frustration. Any psychological intervention should also focus on strategies to reduce the risk of setting future fires. This would require that you gain more insight into the reasons for your offending.
39 After your arrest, you were remanded in custody and bailed on 26 February 2015, after serving 70 days of pre-sentence detention. Ultimately the matter resolved during a contested committal. Upon your release on bail, you were subject to numerous bail conditions and lived at home with a curfew and special conditions prohibiting you from being at or near designated areas in which you had previously lit fires.
40
Your counsel, Mr. Gibson, accepted that general deterrence and denunciation were significant sentencing considerations. However, he submitted that the 70 days which you have served on remand and which caused you a significant level of distress and anxiety, should be combined with a community corrections order. For its part, the prosecution contended that the objective gravity of your offending required a longer term of imprisonment than the 70 days of
pre-sentence detention that had already been served, but agreed that upon your release, a community corrections order could provide a level of supervision and assistance that could reduce your risk of re-offending.
41 On 28 July 2016, I remanded you in custody and requested that a full community Corrections order assessment be undertaken. I considered that the 70 days which you had previously spent on remand did not adequately reflect the serious nature of your offending. The objective of a hybrid order, is to both denounce and punish your wrongdoing, while endeavouring to reduce the risks of further offending in the future.
42 As your counsel properly acknowledged, your offending strikes at the heart of the rural community. Bushfires have wrought great misery on those who live in the bush. Lives have been lost and property and livestock have been destroyed. It was only good fortune that the fires you lit were confined and little damage occurred, that you lit fires to "get even" with those in the CFA who you believed had slighted you, makes your moral culpability all the greater.
43
A number of protective factors make it less likely that you will light further fires. You enjoy family support and your parents provide an important level of protective care. The rural community in which you live is well aware of your conduct and you are likely to be subject to a heightened level of watchfulness. You will have served a significant term in prison, which has not and will not be easy for you. This is your first experience of the criminal justice system and
I would expect that you do not want it to be repeated.
44
Professor Ogloff noted that after you were remanded, you found incarceration particularly distressing and you expressed a degree of fear of other offenders. Your counsel referred to the difficulties you confronted in prison, to your being called a paedophile and to your reactive anxiety and depression. I do accept that your personality makes you vulnerable in custody, that your vulnerability requires that you be held in protective custody and that you have displayed high levels of anxiety and depressive symptoms, which make your service of
a custodial sentence more onerous and increases the likelihood that those symptoms will intensify in prison.
45
A pre-sentence report has been obtained from Horsham Community Correctional Services and you have been found to be suitable to undertake
a community corrections order.
46 For the purposes of Charges 2, 3 and 4, you fall to be sentenced as a serious arson offender, as defined by s.5B of the Sentencing Act 1991. However, in the circumstances of this case, it was not contended that protection of the community requires a disproportionate sentence to be imposed for those offences.
47 On each of the four charges of recklessly causing a bushfire, you are sentenced to a term of imprisonment of six months.
48 On the charge of possessing items to destroy property, you are sentenced to a term of imprisonment of three months, which is concurrent with previous orders.
49 One months' imprisonment on each of Charges 2, 3 and 4 is cumulative upon the sentence imposed in respect of Charge 1 and upon each other.
50 The total effective sentence is nine months' imprisonment.
51 Upon your release from prison, you will be placed on a community corrections order for three years. The length of the order is intended to enhance the protection of the community and to assist you in your long-term rehabilitation.
52 During the entirety of the order, you will be subject to supervision. During the operation of the order, you will be subject to mental health assessment and treatment and required to undertake programs directed towards reducing your risk of future offending.
53 I have not imposed a requirement that you undertake unpaid community work, because I am concerned that your risk of encountering community hostility be minimised. In addition, I am satisfied that the punitive component of the sentence is adequately reflected in the term of imprisonment which I have imposed.
54 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have already served 153 days of the sentence that I have just imposed upon you and that this be noted in the records of the court.
55
I make an order for the taking of a forensic sample by way of a buccal swab.
I must inform you that the police may use reasonable force to carry out that procedure.
56 I make an order for forfeiture in the terms sought and an order for compensation to the CFA in the sum of $40,041.10.
57 Pursuant to s.6F of the Sentencing Act, I direct that the fact that you have been sentenced as a serious arson offender in respect of Charges 2, 3 and 4, be entered into the records of the court.
58 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, you would have been sentenced to a term of imprisonment of three years and six months, with a non-parole term of two years.
59 Be seated, Mr Briggs.
60
There is a draft Community Correction Order. Can
I give that to counsel? Could they check that it conforms to the orders I have made? If it does conform and with your assistance, Mr Gibson.
61 MR GIBSON: Yes.
62 HIS HONOUR: And understanding the consequences that attach to the order.
63 MR GIBSON: Yes.
64 HIS HONOUR: Your client can sign it.
65 MR GIBSON: Yes, Your Honour.
66 HIS HONOUR: Just take your time, Mr Gibson. I understand Mr Briggs' limitations, but he must understand the consequence of the order that he is signing. If he breaches this order, he will go to prison for a not inconsiderable further time.
67 MR GIBSON: Yes, Your Honour.
68 HIS HONOUR: Thank you.
69 MR GIBSON: Thank you, Your Honour.
70 HIS HONOUR: That order's been signed?
71 MR GIBSON: I have explained those conditions to Mr Briggs. He consents to the order and has signed the order.
72 HIS HONOUR: Can I thank counsel for their assistance in this matter. I have appreciated it.
- - -
4
0
0