DPP v McCraig
[2014] VCC 1534
•12 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 12-02373
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID MCCAIG |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 May 2014 and 12 September 2014 |
| DATE OF SENTENCE: | 12 September 2014 |
| CASE MAY BE CITED AS: | DPP v McCaig |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1543 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Arson – intellectual disability – Verdins – Justice Plan – Community Corrections Order
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited: R v Verdins [2007] VSCA 102---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A, Albert | Office of Public Prosecutions |
| For the Accused | Mr M Cahill | Emma Turnbull Solicitors |
HIS HONOUR:
1In this matter Mr David McCaig is charged with two charges of arson, both being offences under s.197(1) and s.197(6) of the Crimes Act. Both occurred on the same day and out of the same incident whereby the back sheds, essentially, of 11 and 13 Cope Street respectively owned by Mr Peter Fitzpatrick and the Rafter family were damaged as a result of this arson.
2Mr McCaig is 31, born on 1 April 1983. He is a person who is in receipt of Disability Support Pension and in addition, of which there will be confirmation given to the Court, has been issued with a statement that he has an intellectual disability. Such statement having been signed by the relevant Secretary.
3Mr Albert tendered the prosecution opening. The circumstances of these matters were set out and, in support of such opening an explanation, Exhibit B, which were the photograph of the teddy bear and the diagram of the house and also Exhibit C, the photograph of the fire damage. In addition, we had Exhibit D, which was the Victim Impact Statement of Mr Alan Rafter.
4It is difficult to know about the precise circumstances of what led to Mr McCaig setting this fire on this night. I accept, what I have been told generally about him, that it may well have been, given his demeanour, that he may have been preyed upon on this particular night but suffice to say the end result was a very dangerous crime with a grave risk of safety. There are, of course, financial consequences and I have, as I say, taken into account the Victim Impact Statement. I accept Mr Rafter’s concern as to the safety of his family. The financial circumstances and the impact, I accept they are genuine insofar as Mr Rafter is concerned.
5Insofar as the costs, again, Mr Rafter has indicated that the costs by way of replacement and building and contents and the damage to his car, which was a Subaru Tribeca, totals $126,000 and the damage to the Fitzpatrick's, totalled a clean-up cost of $5000 and the replacement costs of the items in the shed of some $4000 making a total cost of $130,000.
6This fire took place in May 2010, there had been a considerable delay in this matter. I am not quite certain of the reason for that. However, certainly very shortly, subsequent to the committal in December 2012, a plea was indicated in this matter. The plea was formally, as I understand, notified to the Crown in March 2013 and as I say, formally entered at the hearing of this matter on 9 April 2014, as I understand it.
7The prosecution has reminded the Court of the obligations to provide a sentence or refer to the matters of s.6AAA and also seek a forensic order. I do not know whether I - have we got a copy in regard to that?
8
MR ALBERT: Yes a draft was handed up the last time,
Your Honour.
9HIS HONOUR: Was it? I will sign that. No doubt we will look. In the plea Mr Cahill expressed on behalf of Mr McCaig his heartfelt apology for these circumstances and the risks to, in particular, the Rafter family. In the circumstances of what happened on this night, although he is not precisely sure, certainly Mr Cahill has submitted that the fire and the damage were unintended consequences of what Mr McCaig did. As I say there are fairly strong indications that despite, their denials, his friends Lamb and Doletis may well have been present at the properties at the time.
10Mr McCaig Senior was called and explained the background and circumstances in regard to his son. He explained that he had not been in any trouble with the police since the issue with the animal problem and the Justice plan which was passed in February 2014. He also spoke of the anger management plan that came about as a result of the problem of conflict with his own brother. Insofar as providing the Court with some explanation, Mr McCaig Senior was unable to indicate to the Court, despite his own queries, any indication or reason.
11Mr Abiuso was also called, who is the Disability Justice Practitioner at the Department of Human Services. He is David's case manager and has been from 5 February 2013. The Court was much assisted by his comments. It is noted that Mr McCaig is well supported by the family in the broad sense. That he is doing very well and has done well under the previous Justice Plan. The intellectual disablement is confirmed and the matter was essentially at the behest of counsel having quoted the issues as to Verdins, referred off for the reports as required under s.80 and s.81 of the Sentencing Act.
12Today, tendered respectively were Exhibits E, F and G. Firstly the pre-sentence report dated 17 June 2014. I thank Ms Dimovidis for that report. It is a report of some breadth and was of much assistance to the Court. I accept, as I can perceive it, there is clearly a low risk of re-offending. I assess that Mr McCaig has done well and I accept the positive recommendation in regard to a further Justice Plan.
13I note formally that he has been assessed as suitable for a Community Corrections Order and that his compliance with the current community based disposition has been deemed satisfactory and therefore he has been found suitable for a Justice plan with the following conditions. A condition made under s.48(e) as to supervision and under s.80 with the Justice plan.
14Insofar as the Justice plan itself and the requirements I am required, I thought. It is interesting: "the Court must consider the plan and other information requested under (3)". However we do not have to request the lot but in this case I did. I have, in fact, pursuant to s.83(a) received the pre-sentence report which has already been tendered. Insofar as s.83(b) I have also received the Justice Plan which was also tendered as Exhibit F. In addition to that I have received a Client Overview Report which was tendered was Exhibit G. What I have not got and is to be forwarded to the Court is the formal statement required under s.83(b) from the Secretary of the Department that Mr McCaig has an intellectual disability within the meaning of the Act.
15In addition today and as a background to this, was tendered at the last hearing by Mr Cahill, the report of Mr Gee, the psychological report dated 25 August 2012. That report, as I say, being signed by Dr Dion Gee, forensic psychologist and being dated 25 August 2012.
16Further to the submissions made by Mr Cahill in order to assist the Court, Mr Gee noted at p.9 of that report that "Mr McCaig did not currently present with a major mental illness". He noted the intellectual disability and went on from on p.9 to consider the moral culpability issues that this court is required to consider insofar as the determination of R v Verdins [2007] VSCA 102.
17It was the recommendation that, if possible, an alternative to a term of imprisonment would be a disposal aimed to provide Mr McCaig with access to specialist reports and intervention services that might assist him. He, in particular, noted the particular burden of imprisonment given Mr McCaig's impaired mental functioning and I take those matters into account.
18In addition at the last hearing was tendered a report of Dr Danny Sullivan. That report was dated 1 September 2012. It provides a full history and a mental state examination. In his opinion and recommendation at that stage it was noted that clinically and educationally Mr McCaig had an intellectual disability whose functioning was, to use Dr Sullivan's term "solidly in the mid-range". He was of the opinion that the intellectual disability was germane to the offending in the sense of being unable to exercise appropriate judgment, having reduced ability to think clearly and make calm and rational choices. His cognitive impairment in fact, said the doctor, reduced or severely constrained his self-calming skills, his capacity to manage stress and ability to solve problems. He also confirmed the psychologist's concern as to a period of imprisonment bringing with it vulnerability to exploitation and victimisation. He suggested that he would be best served by a Justice Plan if that was available.
19Today a further report dated 4 September of Dr Sullivan has been tendered and Mr Cahill spoke to that report. I appreciate that report being tendered given that it updates the Court. Taking into account, of course, the application made for the Justice plan. In Opinion and Recommendation in p.4 of that report Dr Sullivan essentially maintained the matters that I have earlier indicated. He also confirmed there is no indication of any psychotic illness or significant substance abuse. He confirmed the earlier matter that I have spoken about as to his possibly being manipulated on the day and his difficulties in regard to exercising those form of judgment for which a determination of Verdins applies.
20Dr Sullivan stressed in a broader sense the importance of employment, if that was possible, and long term assistance with a psychologist and again stressed the issue as to the danger of prison.
21The Court, and I should say the McCaig family, are again being assisted by Mr Abiuso being present today and being able to assist the court again insofar as the employment issue is concerned. I have no doubts at all that despite the serious circumstances of this particular case that it is appropriate to impose a Community Corrections Order, which I will, for a period of three years and attach to that the recommended conditions of supervision and the Justice Plan.
22Given that I do not think I am required to make the s.6AAA of the Sentencing Act 1991 determination; am I? I don't think so. I have some concern about signing the forensic order. I do not think that Mr McCaig represents a risk of recidivism however given the issues that I have referred to and the fact that he can be easily misled it seems to me that it would be in the interests of the public if we make such an order and I will make such an order. My Associate, I think, has got a draft order, have you not?
23MR CAHILL: So a Justice plan two years, Your Honour?
24HIS HONOUR: Two years, yes, yes.
25MR CAHILL: That was going to be my question: what period?
26HIS HONOUR: Two years and three years for the CCO.
27MR CAHILL: As Your Honour pleases.
28HIS HONOUR: I will rely on you to explain the forensic order, Mr Cahill.
29MR CAHILL: Yes, Your Honour.
30HIS HONOUR: Only because I know your client struggles to understand what's going on in court. Mr Abiuso, do you need a - there was a suggestion of an ACSO-COATS alcohol condition. Do we need that specifically or you'll carry that out anyway?
31VOICE (from body of court): If we want the ACSO-COATS it probably has to be done through the court but otherwise we could try and just do it through the community. It'd just be a ‑ ‑ ‑
32HIS HONOUR: What should I do? What's the best way to do it?
33VOICE (from body of court): It's probably more efficient to do it through the court ‑ ‑ ‑
34HIS HONOUR: All right, we will make that order as well. Have you got any objections to that, Mr Cahill?
35MR CAHILL: No, Your Honour.
36HIS HONOUR: All right we'll add that in as well. I might give you the draft, Mr Prosecutor, just to make sure that we're ‑ ‑ ‑
37MR ALBERT: Yes, Your Honour. Your Honour's right there's no need for ‑ ‑ ‑
38HIS HONOUR: No I didn't think there was.
39MR ALBERT: There's no mandatory need, if I can put it that.
40HIS HONOUR: No. Since it's absolutely ridiculous, if there's no mandatory need, I won't do it. I don't know how, realistically, any Judge is able to say what he might have done taking into account simply one factor: a plea of guilty. The whole thing's farcical. It's the sort of thing that parliament, the people who pass these things in, know nothing about what they're doing but anyway, we have to live with that.
41MR ALBERT: Yes. I've got a few on that, Your Honour. There is a benefit in terms of some accused or prisoners because they can see palpably ‑ ‑ ‑
42HIS HONOUR: I accept that's the only benefit, that they see, by pleading guilty what they've actually - what they could have got.
43MR ALBERT: And in future it might weigh on their ‑ ‑ ‑
44HIS HONOUR: If they breach.
45MR ALBERT: Or in new offences.
46
HIS HONOUR: New offences. That's more important isn't it?
Mr Cahill, just in regard to him getting to the police station within a - he's got to do this within four weeks. So you might explain that, and Mr Abiuso too, to make sure he - and perhaps Mr McCaig, to make sure he gets to the station. He's got to have a mouth sample.
47MR CAHILL: Swab. Yes, I'll do that, Your Honour.
48HIS HONOUR: Thank you. Perhaps if Mr Cahill has a look at it too to make sure it suits everyone. That's got a date, the Justice Plan, or did you just print what the pro-forma says? No, no, but subject to Justice Plan - it doesn't identify it, does it?
49MR ALBERT: Yes, that was my concern.
50HIS HONOUR: Yes I know. It's a pro-forma unfortunately. I raised that with my Associate this morning. It just prints off like that. Can you alter that? Specify in the Justice Plan dated - you mean dated such and such a date?
51MR ALBERT: Yes.
52HIS HONOUR: Being an exhibit - that's the answer. Being in the Justice Plan Exhibit ‑ ‑ ‑
53MR CAHILL: G.
54HIS HONOUR: G.
55MR ALBERT: Either way, Your Honour.
56HIS HONOUR: Yes, Exhibit G. Just so we know what Justice Plan we're talking about, I understand my point. I had the same feeling this morning, Mr Albert but we're subject to the tyranny of, not mendacity, but complying ‑ ‑ ‑
57MR ALBERT: The decision ‑ ‑ ‑
58HIS HONOUR: ‑ ‑ ‑ complying with the overall masters who set the computers.
59MR CAHILL: Your Honour, I may be mistaken. Is the Justice Plan Exhibit F? Your Honour referred to ‑ ‑ ‑
60HIS HONOUR: I think it might be.
61MR CAHILL: ‑ ‑ ‑ the three documents, it's E, F and G.
62HIS HONOUR: D, E, I think it's E isn't it?
63MR CAHILL: E was the pre-sentence report.
64HIS HONOUR: F. Yes, F.
65MR CAHILL: Thank you.
66HIS HONOUR: Breach the impenetrable barriers. All right well we'll have Mr - Mr Cahill are going raise with Mr McCaig to sign that.
67MR CAHILL: May I approach the dock? Thank you, Your Honour.
68HIS HONOUR: Thank you.
69MR CAHILL: I explained the terms of the order to Mr McCaig and he indicated to me that he understands its effect.
70HIS HONOUR: Yes, Mr McCaig, if you would just stand up please. In regard to these two matters you have been convicted and you have been placed on a community corrections order for a period of three years with conditions and Mr Cahill explained those matters to you in due course. One of those conditions is the imposition of a Justice plan as part of the matter. But Mr McCaig, very important for you to make sure you do not get into any more trouble; all right?
71PRISONER: Yes, Your Honour.
72HIS HONOUR: Very important for you to listen to dad and more importantly, of course - not more but Mr Abiuso's there to help you as well. So I think if you are guided by those two you are not going to go too wrong; all right?
73PRISONER: Yes, Your Honour.
74HIS HONOUR: Good luck. We want to see you getting a good job.
75PRISONER: Thank you.
76HIS HONOUR: Thanks very much. Yes all right, good luck.
77PRISONER: Thank you.
78HIS HONOUR: Thank you. Thank you, gentlemen for your assistance.
79MR ALBERT: Thank you, Your Honour.
80MR CAHILL: As Your Honour pleases.
81HIS HONOUR: And your instructors of course. Yes.
‑ ‑ ‑
0