DPP v Hayman
[2003] VSC 295
•7 August 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN PETER HAYMAN |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Wangaratta | |
DATES OF HEARING: | 4, 6 August 2003 | |
DATE OF SENTENCE: | 7 August 2003 | |
CASE MAY BE CITED AS: | DPP v Hayman | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 295 | |
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Criminal law – Sentencing – Arson endangering life – Plea of guilty – Accused temporarily psychotic – Substantial stressors triggered by cannabis use – Accused of positive good character – Suspended sentence of imprisonment and community based order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Leckie S.C. | Office of Public Prosecutions |
| For the Accused | Mr M. Croucher | Hale and Wakeling |
HIS HONOUR:
You may be seated, Mr Hayman.
Mr Hayman, you have pleaded guilty to three counts of arson with intent to endanger life. Each of these offences carries a maximum penalty of 15 years' imprisonment. The lives you endangered were of your wife and your two children, boys then aged eight and five years.
The offences are particularly serious and had the potential for tragic results. Fortunately no physical harm was suffered by the victims, but each has suffered and continues to suffer substantial psychological and emotional harm.
Damage to the property at which you committed the offences is of the order of a little over $20,000.
For reasons which I shall state, despite the seriousness of the offences I have concluded that you should not be sentenced to immediate imprisonment but should be released upon terms, so that you continue to reside and work in the community. I consider the proper disposition of these matters is to sentence you to a suspended term of imprisonment for three years and also a community based order for two years. You will then be able to leave this Court.
I shall state the terms of that sentence and order at the end of the reasons I give this morning.
Mr Hayman, you are now 41 years of age, having been born on 21 March 1962. At the time of the offences, you were 40 years of age. The offences occurred at Mitta Mitta on 6 September 2002. You and your wife were married in 1991. There are two children of the marriage, both boys. You and your wife separated on 17 September 2001. A reconciliation was attempted between you both from Christmas 2001 to early January 2002, but was ineffectual. The children remained with their mother, but you had full access to them. No doubt both you and your wife felt emotionally burdened by the situation you were in.
You commenced heavily using cannabis, a drug which had deleterious consequences upon your psychic state.
You and your wife and children came up to a relative's property at Mitta Mitta, following Father's Day, Sunday, 1 September 2002, arriving there at 10.30 pm on Wednesday, 4 September. You were sleeping separately from your wife, who was sleeping in the same bedroom as the two children. Your wife had clearly told you that there was no prospect of you and her reconciling, but, responsibly, she was desirous of you and the children having a full and continuing relationship. Thus the family sojourn to Mitta Mitta.
You desired the relationship with your wife to recommence and became more and more depressed at its cessation. You were behaving strangely but your wife had no warning of the extent of your psychological dislocation, which was triggered by your cannabis abuse of which she was no part.
On Friday evening, 6 September 2002, your wife went to bed with the two boys., The gas heater was on. Your wife woke to a loud noise at 11.45 pm. The bedroom door was open. There were flames and smoke. Your wife immediately woke the boys and rescued them from the potential inferno. You were seen by her standing near a wall. She ran back in to get you. You said "There's no point. We're all going to die anyway. I just wanted us to die as a family". After considerable effort, your brave wife managed to push you to the outside of the house. Thankfully, none of you was physically harmed.
Relatives and neighbours came to help. The Country Fire Authority and police arrived. You were taken by police to the Wodonga Police Station and later charged with attempted murder of your wife and two sons.
What you had done, unknown to your wife who was asleep, was go to the rear of the house and remove two large gas cylinders that were connected to the house. The cylinders contained liquid propane gas for domestic heating of the premises. You placed both cylinders in the lounge room, a short distance from the bedroom. You then placed and lit seven candles above the fireplace in the lounge room and turned the mechanism of the gas cylinders to the 'on' position. The seven candles were for the Father, the Son and the Holy Ghost and for each member of your family. You then took two knives to the bedroom where your wife and children were sleeping in separate beds. You sat at the end of the middle bed with the knives at your feet. The larger of the two knives had earlier been removed by you from a relative's house, 600 metres away and taken to the house where your wife and children were.
With the lit candles and the liquid propane gas, it is fortunate that you all are still alive.
I am satisfied that at the time you committed these offences you were in a psychotic state. You had continuing and severe situational and emotional pressure upon you – some of your own doing, some not – and not only from the separation. Through your own fault, you had financial pressures from gambling. You were also abusing cannabis. Shortly before, your elder child had been diagnosed with Asperger's Disease, a variant of autism with cognitive defects. In the event, at Mitta Mitta you were not your true self. Previously you had never abused your wife and children. You had never been violent. You have no prior convictions. You were employed as a human services worker with the Department of Human Services and there is positive evidence before me that you are a devoted and hard working officer of that Department, and that you did valuable work with persons with intellectual disabilities. Most significantly you did not attempt to use the knives you had and did not attempt to prevent your wife and children escaping the premises.
Tendered before me are a number of psychiatric and other reports, notably that of Dr Lester Walton, a distinguished and experienced consultant psychiatrist of 23 April 2003 and who gave evidence before me by video link. There are also reports of Dr George Wahr, treating psychiatrist of 25 July 2003, of Dr George Camilleri, former treating psychiatrist of 12 June 2003 and of Ms Pamela Matthews, forensic psychologist of 2 November 2002.
I am satisfied on the basis of those reports, particularly that of Dr Walton, that you had an acute psychotic episode at Mitta Mitta because of the stressors upon you that I have stated and triggered by cannabis abuse. That psychotic episode included the period during which you got the knife from the adjoining premises. You were in that psychotic state on that Friday night. Triggered by cannabis abuse, on both the Thursday and the Friday you were suffering delusions and hallucinations. Unconnected with cannabis but caused by your personal situation, you were suffering deep depression.
Since the offences, you have undertaken psychiatric treatment and have regained psychological and emotional equilibrium. Significantly you have wholly desisted from cannabis use. Your mental state is now normal and stable. Your prognosis is good. You have lost your job with the Department by reason of the seriousness of this conduct and of these charges, but other work awaits you in the community.
Your children are recovering from the trauma that you placed them in, but have a considerable way to go. Your wife is also recovering. Your wife has been present in Court this week throughout these proceedings.
Your wife, properly and responsibility, wishes the children to have the benefit of a full and safe relationship with you, their father. Rightly, her first concern is the children's safety. She considers, and I agree, that that central aim can be best achieved by your continuing treatment in the community and by monitoring you to ensure that you do not touch cannabis again. Cannabis, a drug the danger of which is much underrated, triggered your psychotic state preceding and during these events. You have given permission in writing, tendered before me, that your treating psychiatrist may provide relevant information to your wife on a continuing basis as to your progress. You are prepared to continue psychiatric treatment and not to take any illicit drug of any sort, particularly cannabis. You pleaded guilty to these offences at the earliest possible time and are deeply remorseful for your conduct.
The Director has responsibly decided not to proceed with the attempted murder charges but has accepted a plea of guilty to three counts of arson with intent to endanger life. I agree entirely with the decision of the Director which I consider is a proper and responsible decision.
The principles applicable to your case are stated in R v Anderson[1], R v Tsiaras[2] and R v Champion[3] and the authorities cited in those cases, and notably in Champion by Kirby P, as he then was, at 254 to 255 that general deterrence must be sensibly moderated in cases involving psychiatric states. Although the law rightly states that psychosis induced by voluntary ingestion of illicit drugs is no amelioration of responsibility, in the present case, as the evidence and report of Dr Walton makes clear, there was a matrix of stressors upon you including your matrimonial separation and the recently diagnosed serious illness of your elder child. All in all I am satisfied, for the reasons I have stated, that it is not appropriate to sentence you to a term of imprisonment immediately to be served.
[1](1981) V.R. 155.
[2](1996) 1 V.R. 398.
[3](1992) 64 A.Crim.R. 244.
You have served ten weeks in pre-sentence detention.
I consider accordingly the proper sentences to be imposed upon you are as follows.
On Count 1, arson endangering the life of your wife, you be placed on a community based order for two years, special conditions of which are that you continue to receive psychiatric treatment, that you do not consume cannabis or any other illegal drug, and that you undertake urine analysis on a regular basis. On both Count 2 and Count 3, arson with intent to endanger the life of your two boys, I sentence you to three years' imprisonment, suspended in full for three years. The ten weeks you have already served in custody I declare pursuant to s 18 Sentencing Act 1991 to have already been served under the sentences I impose.
The community based order has been enabled by reason of an interview of you yesterday at Community Correctional Services, a report as to which is now placed before the Court. I will ask counsel what are the correct steps to take in relation to the actual terms of the orders.
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