Martin v The Queen

[2015] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0250

JENNIFER GAYLE MARTIN	Appellant
v
Respondent
THE QUEEN

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2015
DATE OF ORDERS:	13 August 2015
DATE OF REASONS:	14 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 248
JUDGMENT APPEALED FROM:	DPP v Martin (Unreported, County Court of Victoria, Judge Saccardo, 28 October 2014)

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CRIMINAL LAW – Appeal – Sentence – Arson (2 charges) – Sentence 4y 6m, non-parole period 2y – Offender set fire to own house – Financial hardship – Severe psychiatric difficulties – General deterrence inapplicable – Sentence manifestly excessive – Crown concession – Appeal allowed – Resentenced to time served.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Tait Lawyers
For the Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
BEACH JA:

1. On 30 September 2014, the appellant pleaded guilty in the County Court to two charges of arson.  A plea hearing was conducted and, on 28 October 2014, the appellant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Arson	15y	30m	12m
2	Arson	15y	42m	Base
Total Effective Sentence:		4y 6m
Non-Parole Period:		2y
Pre-sentence Detention Declared:		N/A
6AAA Statement:		6y with a non-parole period of 4y
Other orders: 1) Sentenced as a serious arson offender in respect of charge 1,[1] pursuant to s 6F Sentencing Act 1991. 2) The psychiatric reports of Dr Walton and Ms Cornwell be forwarded to the custodial authorities and that appropriate measures be implemented to monitor the appellant’s mental and physical health. 3) Forensic sample order.

[1]In sentencing the appellant, the judge said that charge 1 mandated that the appellant was to be sentenced as a serious arson offender.  However, in the Record of Orders signed by the sentencing judge, it is noted that the appellant was sentenced as a serious arson offender in respect of charge 1.  We think it likely that this was a slip in the recording of the order that the judge intended to make.

1. On 12 February 2015, Redlich JA gave the appellant leave to appeal against her sentence on the following grounds:

2.Insufficient weight was given to the application of the principles of R v Verdins.[2]

3.The cumulation of 12 months of the sentence imposed on charge 1 is excessive in all the circumstances.

[2]R v Verdins (2007) 16 VR 269 (‘Verdins’).

1. Subsequently, the appellant gave notice that at the hearing of the appeal she would seek leave to add and rely upon the following ground:

4.Specifically to introduce fresh evidence of the appellant’s deteriorating mental health since her imprisonment.  The fresh evidence relied upon
is a letter dated Wednesday 10 June 2015 from Ms Penelope McDonald, psychologist at WestCASA Footscray.

1. The appeal was heard by us on 13 August 2015.  During the course of the argument, and with conspicuous fairness, Mr Kissane QC, who appeared for the respondent, conceded that the sentence imposed upon the appellant was manifestly excessive in all of the circumstances.  That concession was properly made, and in accordance with the highest traditions of those who appear for the Crown in this Court. 

1. Accordingly, following the conclusion of the argument, we allowed the appeal.  We set aside the sentence imposed in the County Court and sentenced the appellant to time served (290 days).  That enabled her immediate release.  We said that we would formulate the precise structure of the sentence at the time of the publication of our reasons.  The following are our reasons for allowing the appeal, setting aside the sentence imposed in the County Court, and resentencing the appellant.

Circumstances of the offending

1. The offending occurred in the following circumstances.  On 6 September 2010, the appellant, who was living alone in South Morang, reported to her insurance company that her house had been damaged by water which had entered her house through the roof after the wind moved several roof tiles.  Her premises were inspected on behalf of her insurance company and it was estimated that it would cost between $25,000 and $30,000 to repair the damage.  During the inspection it was observed that a mattock by the rear door of the property was of similar dimensions to the damage caused.

1. On 18 September, the appellant reported to police that she had been burgled and that unknown persons had entered her premises through the roof.  Crime scene officers attended her property and found that there had been no burglary.

1. In a letter dated 13 October 2010, the appellant’s insurance company advised her that her claim for indemnity had been rejected.

1. On 15 October 2010, the appellant asked her local Country Fire Authority (CFA) for help because her home was flooding.  Members of the CFA attended her home and observed a number of holes in the roof extending from the plaster to the tiles.  The tiles had been broken by a force applied internally to the roof.  The appellant claimed that she had been broken into and that the offender had caused the damage.  The CFA advised the appellant that her home was no longer safe to live in.

1. The appellant’s home was again inspected on behalf of her insurance company.  Subsequently the appellant withdrew her report in relation to the burglary.

1. On 14 January 2011, the appellant set fire to her home (charge 1, arson).  Emergency services attended.  The appellant received some injuries to her arms and hands and was taken to the hospital.

1. On 18 January 2011, an insurance assessor inspected the property.  He advised the appellant that the building could be repaired within the insured sum of $159,000 but that the contents, insured for $26,000, would most likely be written off.  Approximately half an hour later the appellant set her house on fire again, and it was completely destroyed (charge 2, arson).

1. The appellant’s insurance claims have all been rejected by her insurer.  At the time of the offending the appellant was experiencing financial hardship.

1. On 8 June 2011 the appellant was interviewed by police and denied setting her house on fire.  She was unable to provide a reasonable explanation as to what had caused the original damage to the roof of her house.  She conceded that she would not have been able to afford to repair the damage caused to her premises in September 2010.

The appellant’s background

1. The appellant, who was 59 at the time of sentencing, is one of seven children.  Her earliest memory is of being sent to an orphanage because her mother, who suffered from an intellectual disability, was unable to look after her.

1. The appellant and her siblings were separated and placed in foster care through various orphanages.  When she was six years old she was permanently placed with her adoptive parents who formally adopted her eight years later.  Her adoptive parents had other children, most of whom were also adopted.  The appellant lived with her adoptive parents until her early thirties and cared for them until they passed away.

1. The appellant left school in Year 10 and began working in a haberdashery shop.  After six months she left that job and began working as a cleaner at the Austin Hospital, where she worked for five and half years.  During that time she also worked as a nursing aide but, because she had no qualifications, she had to return to cleaning when those duties were taken over by people who were more qualified.

1. The appellant then worked as a carer at the Kingsbury Training Centre, looking after disabled children and adults, until she was struck in the head and neck by furniture thrown by a disturbed patient.  Since then her life has been dominated by chronic severe pain and she has been permanently prevented from working.

1. In 2012, the appellant’s health worsened when she was struck by a garbage truck, which injured her right arm, leg and hip.  The appellant now suffers from severe chronic depression as a result of her pain and has made a significant number of suicide attempts.

1. The appellant has been single her entire life, other than a five year platonic relationship which ended when her partner died from a heart attack.

1. Psychiatric evidence tendered on the plea was to the effect that the appellant is a seriously psychiatrically damaged individual.  Her childhood was characterised by privation and abuse, leading to blighting of personality development.  It was said that to label the appellant’s psychiatric disorder as ‘chronic depression’ hardly did justice to the suffering she had endured over the years.

1. The psychiatric opinion tendered on the plea was also to the effect that the appellant has no underlying pathological urge to start fires.  Accordingly, protection of the community did not loom large in sentencing.  The appellant’s offending, it was said, could be distinguished from cases of deliberately lit bushfires, where the community was put at risk by the tendency of those offenders to light fires.

1. The appellant has a limited, but relevant, prior criminal history.  In 1975, she received a good behaviour bond for a charge of wilful damage after she and another woman cut up hospital linen which they mistakenly thought was to be thrown away.

1. In 2000, the appellant was sentenced in the Magistrates’ Court to a community based order for arson.  The appellant was not taking her medication at the time and set fire to her lounge room.  Later that year she was also convicted of making a false report to police and was required to continue to attend upon a designated psychiatrist.  This charge related to a false statement the appellant made to police about her lounge room fire.

1. In January 2012, the appellant was referred to the Western Region Centre against Sexual Assault (WestCASA) by the Royal Commission into Institutional Responses to Child Sexual Abuse.  It is apparent that the appellant experienced sexual abuse from a young age while in the care of the Catholic Church.  It is not necessary to detail further this abuse, other than to say that, since her incarceration, incidents of self-harm have apparently increased significantly.  Further, having regard to the concession that the term of imprisonment imposed upon the appellant was manifestly excessive, it is not necessary for us to delve further into the question of whether the evidence that was put before us concerning the appellant’s time in custody, and difficulties associated with it, constituted relevant fresh evidence.

Analysis

1. Arson is a very serious crime.  Ordinarily, an offender convicted of arson can expect to receive a significant term of imprisonment.  General deterrence will generally loom large as a sentencing consideration. 

1. The present is not an ordinary case, however, and the appellant is a far from typical offender.  The offending in this case might best be described as ‘hopeless’.  It was only ever going to hurt the appellant.  There was never any prospect that her insurer might pay upon any claim that she might make.  As a result of her offending, the appellant, who has led what can only be described as a deprived and sad life, has lost her home.  The substantial psychiatric problems from which she suffers made her an entirely inappropriate vehicle for general deterrence.[3]

   [3]R v Mooney (1978) 2 Crim LJ 351;  Verdins (2007) 16 VR 269, 272–4 [14]–[22].

1. In our view, no custodial punishment was called for in this case.  The proper exercise of the sentencing discretion in this case required the making of a community correction order, with appropriate conditions as to treatment and supervision.  Unfortunately, by the time the appellant’s case came to this Court, the appellant had already served in excess of nine months’ imprisonment.  Further, an affidavit, sworn by the Assistant Commissioner, Sentence Management Branch, of Corrections Victoria on 10 August 2015, disclosed that the appellant’s time in custody had been significantly harder for her than it would have been for a person of normal mental health — or even for a person with a lesser degree of psychiatric difficulty than the appellant’s.

1. While a community correction order is likely to have been of some benefit in the rehabilitation of the appellant it would also have operated punitively.  Given the amount of time the appellant had already spent in custody, we concluded that no further punishment was warranted.  Accordingly, there was no basis for the imposition of a CCO, even though the treatment conditions would undoubtedly have benefited the appellant and the community.  As this Court made clear in Boulton v The Queen,[4] the principle of proportionality precludes the imposition of a sentence merely for the purpose of protecting the community.

   [4][2014] VSCA 342, [67].

1. For those reasons, we allowed the appeal, quashed the sentence below and resentenced the appellant to time served.

Orders

1. The structure of the sentence is as follows.  We sentence the appellant to 290 days’ imprisonment on each charge.  On charge 2, she falls to be sentenced as a serious arson offender.[5]  For the purposes of s 6E, we direct that there be no cumulation.  We declare that the appellant had already served 290 days in custody under the sentence.  But for her plea of guilty, we would have sentenced her to a term of imprisonment of 12 months, coupled with a 2 year community correction order with conditions as to treatment and supervision.

   [5]Sentencing Act 1991 s 6B.

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