DPP v Roberts
[2006] VSC 122
•10 March 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL PHILLIP ROBERTS |
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JUDGE: | KELLAM J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2006 | |
DATE OF SENTENCE: | 10 March 2006 | |
CASE MAY BE CITED AS: | R v Roberts (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 122 | |
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CRIMINAL LAW – Sentence – Two counts of arson with intent to cause death – Prisoner diagnosed with schizophrenia many years before offence – Offence occurring in context of prisoner seeking to suicide whilst suffering psychosis – Suspended sentence and Community Based Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Cannon | Solicitor to the Office of Public Prosecutions |
| For the Accused | Mr T. Wraight | Legal Aid Victoria |
HIS HONOUR:
Russell Phillip Roberts, you have pleaded guilty before me to two 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 those of your daughters, Sarah Louise Roberts and Laura Jaye Roberts. At the time Sarah was 16 years of age and Laura was 14 years of age.
The offences are, on the face of them, particularly serious. They had the potential for extremely tragic results. Fortunately, no long‑term physical harm was suffered by the victims. They have each declined to file a victim impact statement, but there is no doubt from the material before me that they must have been seriously emotionally upset at the time of the incident and for some time thereafter and, indeed, very frightened by your behaviour.
Damage to the property at which you committed the offences was substantial indeed although the precise value of the lost property is not entirely clear at the moment. It would appear that repairs may well have been in the order of $100,000 and there is a possibility that an application will be made for a substantial order of compensation.
For reasons which I shall state, and despite the seriousness of the offences, I have concluded that you should not be sentenced to immediate imprisonment but should be released upon conditions so that you continue to reside in the community and, as I understand it, with your father.
I consider the proper disposition of these matters is to sentence you to a suspended term of imprisonment of 18 months for a period of three years and also a community based order for two years. I will return to these matters at the end of the following remarks.
You are now 43 years of age, having been born on 29 December 1962. At the time of the offences you were 41 years of age. The offences occurred in Morwell on 16 July 2004. You had married Belinda Roberts, the mother of Sarah and Laura, in about 1985. You separated in about 1995 and divorced in 2000.
Unhappily, you were diagnosed with schizophrenia in 1991. Since that time you have been on a regime of medication and regular consultation with a psychiatrist, Dr John Cronin.
Sarah and Laura had moved into the house in Morwell with you approximately one week before the fire. Their mother had legal custody of them but the two girls lived with you, having each expressed a desire to do so.
On 15 July 2004 Sarah and Laura were at home with you. You came into what they called the computer room and asked them to get off the internet so you could make some phone calls. You went to bed soon thereafter. You got back up from bed at about 11.30pm and said goodnight to Laura. Laura Roberts slept in a bungalow at the back of the property. Soon thereafter Sarah went to sleep but woke up to a loud bang. Sarah, that evening, had in fact chosen to sleep in the loungeroom. (You told police that you lit a fire in her bedroom because she was not in it.) Having heard the bang, Sarah immediately noticed thick black smoke in the loungeroom and, realising that there was a fire, crawled towards your bedroom. She yelled out, “Dad, there’s a fire”. You replied, “I know”.
She fumbled for a spare key in her wallet to try to get out of a side door because the front door was deadlocked. Eventually she, with you, escaped from the house and ran to the bungalow where you each banged on the window to wake Laura and have her come out of the bungalow. She awoke and left the bungalow whereupon you used her mobile phone to call the fire brigade.
At this point you said, “I hope you can forgive me girls, but I’m the one who lit the fire”. Subsequently, after Laura called the fire brigade a second time you said, “I just wanted us all to go peacefully”.
Sarah was affected by smoke and was placed on oxygen and, with you, was taken by ambulance to Traralgon Hospital.
Subsequently fire officers found a suicide note. Whilst at the hospital you said to Laura, “Did they find the suicide note?” and then you said, “Jeez, what have I done?” Whilst in hospital you told a registered nurse that you had lit the fire “to cleanse myself and the girls from the devil and to stop the war”.
Subsequently you were interviewed by police. You said, “On the night in question I was suffering a paranoid schizophrenic episode, combined with depression, combined with drinking heavily. I had run out of anti‑depressant tablets and I was receiving visual and aural hallucinations and these were all telling me to kill myself”.
You told police that for about one week before the fire you were suffering auditory hallucinations which were telling you to kill yourself or “perhaps many people would die.”
On the Monday prior to the fire you telephoned Dr Cronin who, as I have said, had treated you for many years, (well over a decade), for schizophrenia. Dr Cronin has prepared a report for the purposes of your plea. That report sets out that you have always been compliant with treatment, and that you have always attended your appointments regularly. You have intermittently suffered an increase of paranoid ideation, sometimes of a delusional nature. Throughout your illness you have been, however, quick to report these occurrences and Dr Cronin states that they usually settle quickly, either with support and reassurance or a temporary increase in medication.
It would appear, however, that between the period of 1991 and 2004 paranoid ideas were often not far from the surface, to use Dr Cronin’s words, and you would suffer from the consequence of these ideas sometimes once a year, sometimes up to four times a year.
Dr Cronin reports that you have attempted to find employment during the period of your illness but more often than not stressors in the work place caused an increase in paranoid ideation and you have not been able to continue working. You have been on the disability support pension for some time now.
Dr Cronin reports that your separation from your wife had, at least from your point of view, been amicable, with you always being keen to maintain a close relationship with her and in particular with your daughters. It should be observed that the depositions before me reveal that on the night before you lit the fire you spoke to both your ex‑wife and her partner by telephone. It would appear that these calls were the calls that were made around 9.30 in the evening. You were seeking assistance with your psychiatric difficulties.
It is apparent that in the course of that evening you became convinced that you would die, as you used your computer to transfer all of your money, a sum of approximately $5,000, to your daughters. It would appear that on that evening you took a whole bottle of Respiridon, being your medication, with at least half a bottle of whiskey with the intention of it causing your death, but to no avail. It would appear that you rang the psychiatric triage nurse at the local community mental health office at about 2.00am and received an answering message telling you to ring 000. You did not do that. You told police that you started to panic as your psychosis was getting worse, that you went to the kitchen, grabbed a knife and tried to cut your wrist, which did not cause much injury.
Subsequent to that you lit the fire in Sarah’s bedroom. You told police that you then went and sat on your bed and waited to die. However, you told police that when you heard Sarah’s voice saying that the house was on fire you came to your senses. It is clear that you then assisted Sarah and Laura to get out of the house and that you called the fire brigade.
Police asked of you if you were thinking of your daughters after you lit the fire but before Sarah had awakened. You said, “I wasn’t thinking of anything other than dying”. It was simply a desperate act in your panic to die, you told police.
The suicide note found in your house makes painful reading and I do not intend to repeat anything of it in these remarks other than the fact that it was addressed to your “darling daughters, Sarah and Laura”.
It would appear that at an earlier stage in the evening you intended to commit suicide either by overdose or cutting of your wrists but that you had a contemplation that your daughters would survive you. This appears to me to be consistent with the transfer of the funds from your bank account to their bank accounts and the note which you left. Subsequently, it would appear that a plan formed in your mind, such as it was at the time, to burn down the house with the obvious risk, to any sane person, that your daughters’ lives would be endangered.
I am satisfied that at the time you committed these offences you were in a psychotic state. Dr Walton, a well‑regarded expert psychiatrist, prepared a report and gave evidence before me. It is quite clear from the material before me that on 12 July 2004 you reported, by telephone, to Dr Cronin and you were experiencing paranoid ideas and that you had not been taking your medication. You told Dr Cronin that you had shifted house and that you felt stressed with that and that you had run out of anti‑depressants. Dr Cronin advised you to resume your medication and he also advised you to make contact with the CAT team in Morwell.
You telephoned Dr Cronin on 14 July and reported that you had made phone contact with the CAT team and that you had an appointment to see them. Apparently the first appointment that was available was for Monday, 19 July 2004. The events which bring you before this court, of course, occurred on the Friday before the intended appointment date.
Dr Walton, in the course of giving evidence before me and in response to an inquiry by me of him as to whether he considered you would have had a defence of mental impairment, said as follows, “I mean, it’s clear that he was seriously ill at the time. As you say, it shrieks out from the depositions and just the bizarre circumstances. I think it could have been far from frivolously put before a jury that he had the defence.” He said that he would have supported such a defence although he admitted that there were some “detractions” from it. In particular, it is clear that soon thereafter you had good insight into what had taken place. He then said, “If I may say so, my understanding of why it hasn’t been argued is that ultimately he wished to plead guilty as an expression now of his very strong sense of guilt and responsibility for what he’s done, and also not wishing to have his daughters involved in any procedure, and also to make a strong statement to them that he regrets to the extent that they might have been put at risk, so it really is an expression of his own proper sense of responsibility now.”
I have before me the evidence of your compliance with your treatment since the events in question. Peninsula Health has provided a report which informs that you are attending their drug and alcohol program to address issues relating to your past alcohol use. That report argues that your alcohol consumption at the time of the event which brings you before this Court was an attempt to self-medicate and that you have been abstinent since July of 2004.
You now attend Peninsula Community Mental Health Service and you have a registered psychiatric case manager. You have responded well to treatment with demonstrated evidence of compliance with medication since August 2004. There has been no evidence of you being a risk to yourself and others by reason of your psychiatric illness since monitoring commenced in August 2004, and, as I say, and significantly, you have demonstrated abstinence from alcohol since then.
You are now exploring your employment opportunities having undertaken a Commonwealth rehabilitation course whereby you completed a course in small engines.
Dr Walton considers, as does Dr Cronin, that provided you continue to receive appropriate medical attention, you will not be a danger either to yourself or anyone else.
Your mental state is now normal and stable. Your prognosis is good.
The principles applicable to your case are those stated in R v Anderson[1] and R v Tsirias[2] and the authorities cited in those cases.
[1](1981) VR 155.
[2](1996) 1 VR 398.
In your case the issue of general deterrence needs significant moderation and is not a matter of enormous significance.
True enough it is that you consumed alcohol on the night in question but this is certainly not a case of a self‑induced psychosis. You became psychotic in the circumstances of your illness and in the circumstances of the stress placed upon you by the move to Morwell with your daughters. The psychosis was a matter of illness which, at least with the benefit of hindsight, did not have the attention it deserved from medical authorities.
The issue of special deterrence is likewise not a matter of enormous consequence in your case because it is highly unlikely that you would have behaved as you did unless in the grip of psychosis. However, you, Mr Roberts, must understand the necessity for you to take medication as prescribed and to seek treatment if there is any deterioration in your symptoms. You must do all you can to develop insight into your condition to ensure that you can report any change in your mood as soon as possible and you must, of course, continue your abstinence from alcohol.
In the end result, and I might say principally directed to your rehabilitation by way of compliance with medical treatment, I propose to sentence you as follows:
On Count 1, arson endangering the life of your daughter Sarah, you are to be placed on a community based order for a period of two years, the program conditions in addition to the core conditions being as follows: you must be under the supervision of a Community Corrections officer. You must attend for education or other programs as directed by the regional manager for a period of not less than one month or more than 12 months. You must undergo assessment and treatment for alcohol addiction and/or submit to medical, psychological or psychiatric assessment and treatment as directed by the regional manager. You must submit to testing for alcohol use as directed by the regional manager. Finally, and significantly, you must comply with the lawful directions of your treating psychiatrist, Dr John Cronin, or his nominee throughout the term of the order.
On Count 2, I sentence you to 18 months’ imprisonment suspended for a period of three years.
I propose to make a s.464ZF order which requires the taking of a scraping from your mouth. Having considered the seriousness of the circumstances of the case I am satisfied that the order is justified and by reason of the fact it is not opposed the granting of the order is in the public interest.
In addition to that matter, there is an application for disposal of a suicide note and other matters. I will make the order.
There is an application before me in relation to part of the compensation which has been established at this point in the sum of $316.80 and I order that Mr Roberts pay to Toni Ungarelli compensation in that sum.
Mr Roberts, all community based orders have these conditions. First, you will not commit another offence during the period which could result in imprisonment. Secondly, that you need to report to Community Corrections within two clear working days of the order starting and I declare that the order starts today, 10 March 2006, and will end on 9 March 2008. You must report to and receive visits from a Community Corrections officer. You must let a Community Corrections officer know within two clear workings days if you change your address or your job. You are not to leave Victoria without first getting permission to do so from a Community Corrections officer. You are to obey all lawful instructions from and directions given to you by Community Corrections officers. They are core conditions of every order, do you understand that?
PRISONER: Yes, sir.
HIS HONOUR: In addition to that, I have imposed these following special or program conditions.
1.That you be under the supervision of a Community Corrections officer.
2.That you must attend for education or other programs as directed by the regional manager for a period of not less than one month or more than 12 months.
3.That you must undergo assessment and treatment for alcohol addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the regional manager.
4.That you must submit to testing for alcohol as directed by the regional manager.
5.That you must comply with the lawful directions of your treating psychiatrist, Dr John Cronin, or his nominee, throughout the term of the order. Do you understand those matters, Mr Roberts?
PRISONER: Yes, sir.
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