R v Dunne
[2014] ACTSC 199
•3 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dunne |
Citation: | [2014] ACTSC 199 |
Hearing Dates: | 17 April 2014; 4 June 2014 |
DecisionDate: | 3 July 2014 |
Before: | Penfold J |
Decision: | See [28] to [31]. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for one count of acting so as to cause public alarm – offender left employment in public service department on bad terms – offender forced entry into office building occupied by former employer department – offender armed with chainsaw – mass evacuation of building – history of mental health problems - offender subject to Psychiatric Treatment Orders from several months before offence – diagnosis of chronic paranoid schizophrenia and Delusional Disorder (Persecutory Type) – offender’s culpability, and significance of general and personal deterrence, reduced by mental disorder – no indication that mental disorder meant that custodial sentence would weigh more heavily on offender or would cause any deterioration in mental health – offender sentenced to two years imprisonment, to be suspended subject to good behaviour order. |
Legislation Cited: | Crimes Act 1900 (ACT), ss 140A, 309, 381 Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | R v Verdins [2007] VSCA 102 Cooper v Corvisy (No.2) (2010) 5 ACTLR 151 |
Parties: | The Queen (Crown) Benjamin Dunne (Offender) |
Representation: | Counsel: Mr A Williamson (Crown) Mr A Doig (Offender) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 69 of 2013 |
Benjamin Dunne has pleaded guilty to one count of acting to cause public alarm. A related offence of possessing an offensive weapon, in this case a chainsaw, with intent is to be taken into account in sentencing him for the public alarm offence.
These two offences arise under the Crimes Act 1900 (ACT). Acting to cause public alarm is an offence under s 140A of that Act and carries a maximum penalty including imprisonment for 10 years. The scheduled offence of possessing an offensive weapon with intent arises under s 381 of that Act and carries a maximum penalty of one year’s imprisonment and a $2,000 fine.
The Agreed Statement of Facts describes Mr Dunne’s offences as follows:
[Mr Dunne] was an ex-employee of DHS [the Department of Human Services]. He parted on bad terms with the Department. [He] formulated a plan to scare senior managers and employees at DHS. [Mr Dunne] knew several DHS officers were located in Greenway and was aware that a security access swipe card is required to enter the offices.
...
On 28 March 2013 [Mr Dunne] left his residence and contacted his housemate Mr Luke Sabic telling him that he was never going to see him again. Mr Sabic contacted police emergency services and told police [Mr Dunne] was about to do something serious and that in the past [Mr Dunne] made threats of harming other people.
At about 3:38pm, [Mr Dunne] walked past customers sitting at a table outside Jindebah Café across from Flax House. [Mr Dunne] held a chainsaw in both hands. The guide bar is approximately 30 centimetres in length and white in colour. [Mr Dunne] ran into the office block and up the stairs.
Police emergency services were notified that [Mr Dunne] had entered Flax House with a chainsaw.
[Mr Dunne] walked up the stairs leading to the closed glass entrance door. The sliding door was closed at the time [Mr Dunne] approached the door. [He] pulled the cord on the chainsaw and violently struck the glass security door three to four times. [Mr Dunne] raised the chainsaw above his head each time.
DHS employees saw [Mr Dunne] hitting the security door with the chainsaw and they evacuated the building through the emergency exit doors located at the rear of the building. The exit became congested as alarmed and anxious staff tried to flee to safety.
[Mr Dunne] smashed a large hole in the security glass panel. There were several impact sites on the remaining glass with the shattering effect extending to the aluminium frame. Broken glass was lying on both sides of the glass security door on the ground, with the majority of the shattered glass on the office side of the door.
[Mr Dunne] entered Flax House through this hole. All staff had exited the building before [Mr Dunne] was able to complete his forced entry.
At about 3:40pm, police attended Cowlishaw Street, Greenway and ... were directed ... to the first floor of Flax House. Police observed that members of the public appeared to be panicking and many were running from the building.
Police moved up the stairs of the office block towards Flax House and entered through the hole that had been smashed in the glass. [Mr Dunne] was standing in a corridor between office cubicles holding the chainsaw with both hands. The engine was still running.
Police arrested [Mr Dunne] and cautioned him. [He] said:
I was coming in today to get a concession from the two managers as they were responsible for all the damage that people have done to my home.
At about 4:00pm on the same day an ACT ambulance attended the location and commenced an assessment of [Mr Dunne]. At about 4:40pm on the same day [Mr Dunne] was transported to Canberra Hospital by ACT Ambulance for further assessment and treatment.
...
At about 7:30pm on the same day [Mr Dunne] was released from Canberra Hospital and transported by police to the City Police Station where he participated in a record of interview. During the interview, [he] made the following admissions:
· He owned the chainsaw;
· He purchased the chainsaw from Bunnings on Saturday and it was the cheapest one;
· He caught a taxi from Dickson to the offices in Greenway with the chainsaw;
· He knew that there were several DHS offices in Greenway and he was aware of the security protocols and how to enter the offices;
· He posted a message on his Facebook wall making reference to what he was about to do, making particular reference to: “Pathetic they could have saved lives”;
· He stated his intention was to “make [a former colleague] “shit his pants”;
· He stated that he knew his actions would be noted by various senior employees of DHS;
· His actions were deliberate and were in retaliation and revenge for his ill treatment by management;
· He stated that he used the butt of the chainsaw to smash the glass security door to gain access to the office area;
· He did not have any permission from anyone to carry out these acts;
· He was aware of a Psychiatric Treatment Order and that he was the subject of an appointment at 3:00pm that same day with ACT Mental Health;
· He had a phone conversation with ACT Mental Health earlier that day, who told him he had to attend or they would be forced to call the Police to take action. He stated he did not go as he wanted to carry out his actions as he had done.
Mr Dunne was charged on 30 March 2013, and pleaded not guilty. In June 2013, he was committed to the Supreme Court for trial, but on arraignment for trial on 17 March 2014, he pleaded guilty to one of the charges on the indictment, and another offence was scheduled.
As noted, Mr Dunne was arrested on 28 March 2013 and spent time in Canberra Hospital and the Watch House, while an assessment was made of his mental condition for the purposes of s 309 of the Crimes Act (which empowers the Magistrates Court to order an immediate assessment of an accused person if there are reasonable grounds for believing that he needs immediate treatment or care because of mental impairment).
On 18 April 2013, Mr Dunne was released from hospital to Samaritan House, having spent 21 days mainly in the Canberra Hospital. I accept the prosecutor’s assertion that this was in a therapeutic rather than a custodial environment, but his concession that Mr Dunne would not have been allowed to leave if he had sought to do so means, in my view, that this time should be accepted and accounted for as time in custody, as would presumably also be done for time spent in the AMC by a person who was receiving therapeutic care there.
The offence of doing something, with intent to cause public alarm or anxiety:
(a)that could endanger someone else’s life or health; or
(b)that, in the circumstances, a reasonable person would suspect would endanger someone else’s life or health (the offence to which Mr Dunne had pleaded guilty);
is fortunately not a particularly prevalent one. However, this means that there is not much of a context in which to assess the objective seriousness of Mr Dunne’s actions. It seems to me that this offence sits slightly below mid-range seriousness, given that although Mr Dunne was observed by some of the DHS employees trying to force his way into the building with the chainsaw, he was obstructed by the security doors for sufficient time for the building to be evacuated, and there was no direct confrontation with any of the employees, although they were no doubt distressed by the incident.
I note the prosecutor’s submission to the effect that a chainsaw in popular culture carries particularly gruesome connotations, while noting also that people might in fact find a person carrying a gun more frightening, given that guns are far more often used in real life to create mayhem in workplaces and elsewhere. I also note the prosecutor’s submission that the response or possible response to Mr Dunne’s actions (including possible attempts to disarm him and possible danger caused by, for instance, police attempts to reach the scene quickly) must also be recognised.
It is clear that this offence was premeditated, as indicated among other things by Mr Dunne’s call to his housemate before the incident. On the other hand, there is evidence before me to the effect that Mr Dunne initially obtained the chainsaw for a reason other than his attack on the DHS building (that evidence is in some of the Mental Health material) and insufficient evidence on which I could find beyond reasonable doubt that he had obtained it for the purpose of this attack.
Mr Dunne had no criminal history at the time of these offences and there has been no offending since. Counsel described the offences as “an isolated incident in an otherwise blameless life”.
The Pre-Sentence Report author reported that Mr Dunne “acknowledged minimal responsibility for his offence and justified his actions by blaming the intended victim”. I accept defence counsel’s submissions that this report needs to be assessed in the light of the evidence about Mr Dunne’s mental health over a long period before and since the offence, and the particular form taken by his mental health difficulties.
The Pre-Sentence Report provides information about Mr Dunne’s background:
Mr Dunne reported he was born in Broken Hill, NSW and reported no negative events during his formative years. He stated he enjoyed a good relationship with his parents and sister until a few years ago. He would not elaborate on the reason for the deterioration of the relationships and stated he no longer had contact with them.
Mr Dunne reported no significant relationships.
Mr Dunne resides in government rental accommodation facilitated by Samaritan Services. His case manager with Samaritan Services indicated this is a permanent arrangement. She advised Mr Dunne is compliant with his case management through that Service.
Mr Dunne claimed he attended university after graduating from high school. He further claimed he left university one year prior to obtaining a double degree, in order to support his sister.
Mr Dunne had been employed at the Medicare office in Tuggeranong prior to the commission of the current offence. He stated he had worked there for four years and left on negative terms with some of the managers. This workplace was the target of Mr Dunne’s offending behaviour ... .
Mr Dunne claimed he is currently in receipt of a Centrelink benefit and pays a regular range of living expenses. He reported he recently had a credit card debt deleted by his financial institution as he was unable to meet the repayments.
...
Mr Dunne reported he was diagnosed with a mental health condition approximately one year ago. Information received from Mental Health ACT indicated Mr Dunne is subject to a Psychiatric Treatment Order (PTO) and has been compliant with his treatment regime.
I am satisfied that Mr Dunne’s mental health problems are the key to his offending, although the particular significance of those problems needs careful consideration. In evidence before me were several psychiatric assessments of Mr Dunne, as well as a series of patient progress notes from the Canberra Hospital, and assessments made in the context of the making of Psychiatric Treatment Orders, which have been in place continuously since January 2013.
Mr Dunne’s patient progress notes from the Canberra Hospital indicate that his concerns about his employment and associated acute episodes of worrying behaviour had begun as early as December 2011. At that point, he made several references to suicide, his sister had contacted ACT Mental Health authorities, and his flatmate had contacted police saying he had threatened to stab a workmate whom he blamed for all his problems and had said that he would probably kill himself afterwards.
Further threats of suicide or harm to colleagues, explained by apparently delusional beliefs about the behaviour of those colleagues and the threat they posed to Mr Dunne, were recorded in February, May, September and October 2012, and the mental health authorities sought a Psychiatric Treatment Order to enable Mr Dunne to be treated involuntarily with antipsychotic medication. At some point in 2012, Mr Dunne claimed he had bought himself a gun but had subsequently surrendered it to police, but the truth of any of this claim is not clear.
In the weeks leading up to the offence on 28 March 2013, Mr Dunne had apparently stopped complying with the Psychiatric Treatment Order. When a mental health worker telephoned him on the day of the offence and asked him to come in to discuss the Psychiatric Treatment Order issues, he made an appointment for later in the afternoon, but instead went to Tuggeranong and committed the current offence.
Dr Rodrigo provided a s 309 assessment of Mr Dunne after the offence; that assessment was finalised on 16 April 2013, and indicated that Mr Dunne had been “floridly psychotic”. Dr Rodrigo considered that Mr Dunne understood that what he had done to his former workplace was wrong, and said that he had no wish to harm anyone.
The Canberra Hospital records indicate that Mr Dunne was suffering chronic paranoid schizophrenia, and had no insight into the reasons for his admission. However, on 2 April 2013, Mr Dunne was recorded as remorseful and tearful about the chainsaw incident, saying he was not thinking straight and never wanted to scare people, but just wanted the wider community to realise the faults of his former workplace. Mr Dunne claimed at that point he had bought the chainsaw intending to help a friend cut wood for winter.
By 16 April 2013, Mr Dunne was assessed as well enough to be released into police custody. A further psychiatric report was ordered when he appeared in the Magistrates Court on 18 April 2013, and on 7 May 2013 Dr Kasinathan reported a diagnosis of Delusional Disorder (Persecutory Type), reflecting Mr Dunne’s belief of persecution by former colleagues in the Department of Human Services. There was a final diagnosis of paranoid schizophrenia, and treatment was to be by antipsychotic depot medication under a continuing Psychiatric Treatment Order.
In July 2013, while Mr Dunne still proposed to defend the charges, Dr Stephen Allnutt provided an assessment to his lawyers focusing on whether Mr Dunne had any defence arising out of mental impairment and setting out the following opinion:
Your client has a genetic predisposition to probable mood disorder given a family history of mental illness and suicide attempts; he was brought up in an environment that, in my view, was likely to have been relatively neglectful and probably unpredictable; he was physically abused; his parental care diminished after his parents separated when he was about 13 or 14 years of age, leaving home at age 16 or 17; nonetheless he performed adequately at school with some behavioural problems but not to the extent that he would be regarded as having a conduct disorder or manifesting juvenile delinquency.
Leaving school he has been capable of gainful employment and has had multiple episodes of employment; he states that he has performed adequately or better in his prior employments and has not had any difficulties of a similar nature in prior employment; however difficulties began to emerge within the workplace in about 2011 when he made complaints about the management and the running of the business; there have been allegations made about him with regard to harassing women in the workplace and this has been associated with repetitive phone calls to HR by him leading to him stopping work.
Since then he has continued to pursue resolution to the issues raised in particular he has become concerned about a particular report that he believed inaccurately reflects his behaviours to women in the workplace and appears to have become fixated on this and the need to find resolution for himself.
The episode of 28 March 2013 involved a single aggressive act when he went to the city with a chainsaw; the incident occurred in a public place during the day and appears to have been relatively impulsive (that is, that the decision to engage in this behaviour occurred to him on that day, if it is accepted that he initially bought the chainsaw for other purposes); he stated that at the material time his offending behaviour was motivated by an attempt to bring attention to his situation because he had exhausted other avenues.
At the time he was socially isolated, he had limited supports, and he was estranged from his family, he was unemployed and he had numerous financial difficulties; he said he felt aggrieved and was probably angry at the perceived indifference by HR towards his complaints and towards what he saw as an inaccurate report written by him, that HR were not resolving for him; by that stage he reported that he had been assaulted on numerous occasions; the assaults he believed were instigated by misleading information provided by people in the workplace about him indirectly to those that assaulted him and his roommate.
In the time leading up to the alleged offence there is evidence of underlying depression as well as post traumatic stress symptoms so that at the material time of the alleged offence he was experiencing a diagnosable psychiatric disorder namely depression with post traumatic stress symptoms.
Canberra Hospital patient progress notes report an opinion from Dr Emma Glanville dated 5 February this year in which she said that Mr Dunne will be an ongoing risk of harm to others and also a moderate risk of suicide or self-harm. She recommended continuing antipsychotic medication and concluded that Mr Dunne requires ongoing involuntary treatment under a psychiatric treatment order to mitigate the risks identified.
On 27 February this year, Mr Dunne was assessed as having a stable mental state, although continuing to believe that he was being harassed by former colleagues. He regretted his attack on the DHS premises because it was likely to affect his future work prospects, but was said to have limited insight more generally. He continued to refuse to take oral medication.
As noted, Mr Dunne has been on Psychiatric Treatment Orders continuously since January 2013. The current order expires on 12 September this year.
In the case of R v Verdins [2007] VSCA 102 (Verdins), the Victorian Court of Appeal identified six ways in which impaired mental functioning might be relevant to sentencing.
(a)First, although it seems fairly clear that Mr Dunne recognised that what he was doing was wrong, I consider that his paranoid schizophrenia and in particular his delusions of being under threat from former colleagues reduce to some extent the moral culpability of the offending conduct, and therefore imply that the punishment that is just in all the circumstances may be at the lenient end of the spectrum, and that denunciation is a less significant, although not non-existent, sentencing objective.
(b)As for the second and third Verdins points, defence counsel submitted that Mr Dunne’s condition might have a bearing on the kind of sentence that should be imposed, and that the circumstances of his offending might mean that general deterrence should be moderated as a sentencing consideration to the extent that Mr Dunne’s offence is different from one committed by a person who acts for reasons other than a disordered mental condition. The prosecutor referred me to Cooper v Corvisy (No.2) (2010) 5 ACTLR 151, in which Refshauge J referred to other cases mentioned in Verdins to the effect that general deterrence may need to be sensibly moderated as a result of impaired mental functioning but that this may be a relatively minor moderation if the offender knew what he was doing and knew the gravity of his actions.
(c)Defence counsel, referring to the fourth Verdins point, also said that specific deterrence could be moderated as a sentencing consideration because of the arrangements put in place for Mr Dunne to receive ongoing involuntary treatment for the condition that led to the offending. I accept the submissions that neither general nor specific deterrence is as significant a factor in this case as it would be if the offence had been committed by someone not in the grip of an acute psychiatric disorder of the kind suffered by Mr Dunne.
(d)As to the fifth and sixth Verdins points, counsel conceded that there was no basis for a submission that a custodial sentence would weigh more heavily on Mr Dunne than on an offender in normal health or that imprisonment would have a significant adverse effect on Mr Dunne’s mental health.
Accepting that Mr Dunne’s disorder has significance in this sentencing, it is not disputed that this was a serious offence and that Mr Dunne knew that what he was doing was wrong. I am satisfied that no penalty other than imprisonment is appropriate, but also that a substantial term would be inappropriate.
As to how that sentence should be served, I note first that the Pre-Sentence Report author has assessed Mr Dunne as unsuitable for either community service or periodic detention because of his mental health problems. Although the Crimes (Sentencing) Act 2005 (ACT) permits me to order community service or periodic detention despite a negative Pre-Sentence Report assessment, I would not do so in this case, because on the one hand it is clear that Mr Dunne does have ongoing mental health problems and on the other hand I cannot assume that the arrangements for offenders to perform community service or periodic detention cater for the needs of offenders with mental health problems. Indeed, since major psychiatric or psychological disorder is specified as an indicator of unsuitability for those sentence options, I must assume that they do not. The prosecutor said, however, that he did not wish to submit that any part of the sentence needed to be served in full-time custody.
Mr Dunne has pleaded guilty to this offence, and although that was done on the day set down for trial, the plea was accepted to something less than the charges in the indictment. There will be a plea of guilty discount to recognise the undoubted utilitarian value of the plea, but not the largest discount.
Mr Dunne, please stand. I record a conviction on the charge of acting to cause public alarm. I also note the scheduled offence of possessing an offensive weapon with intent, and I have taken it into account in this sentencing.
I now sentence you to imprisonment for two years, reduced from two years and six months because of your plea of guilty.
That sentence will be backdated to 12 June 2014 to account for the time you spent under restraint in the Canberra Hospital after the offence, and so it will run until 11 June 2016.
The sentence will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years. The good behaviour order is subject to the conditions that:
(a)you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director General or delegate; and
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer (and I note in making that order that I do expect there will be co-operation between the people administering the good behaviour order and the people responsible for your Psychiatric Treatment Order).
You will be given a written copy of the good behaviour order, Mr Dunne, and it will be explained to you by court officials and, I hope, by Mr Doig as well. In short, it means that for the next two years, you need to keep out of trouble and keep in contact with your Corrective Services supervisor. If you commit another offence during that time, you may find yourself back before this court to be re-sentenced for this offence, for the chainsaw offence, and that could see you serving some of that two-year sentence in full-time custody.
I should say also, Mr Dunne, that this good behaviour order doesn’t affect the operation of any Psychiatric Treatment Order that is in force in relation to you, and it certainly doesn’t provide any reason for not continuing to comply with the Psychiatric Treatment Orders.
If you have any further questions about the effect of the good behaviour order, please ask the court officials or Mr Doig.
You may sit down.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |