R v Griffiths
[2013] VCC 1593
•2 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-0996
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KELLY JAMES GRIFFITHS |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 2 October 2013 | |
CASE MAY BE CITED AS: | R v Griffiths | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1593 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Warren | |
| For the Accused | Mr L. Gwynn |
HIS HONOUR:
1 Kelly James Griffiths was presented on indictment containing two charges of arson relating to 2 June 2007 and on 7 August 2013. He was convicted of Charge 2, arson contrary to s.197 of the Crimes Act. wherein the jury found him guilty of intentionally and without excuse damaging by fire the inside of a house at 7 Ontario Avenue at Corio. A summary of the events which are the foundation for that particular matter is relied on by Crown. I will ensure that it remains in the court file for future reference. So I will refrain from reciting any facts about the particular offence except to say that at the time Mr Griffiths was residing in the house with his cousin, who gave evidence at the trial, that at some point during the course of that day, Griffiths was seen by neighbours in the vicinity to be highly intoxicated. The jury were persuaded beyond reasonable doubt that he was the one that set that fire. Its precise source and the way in which that was started was somewhat equivocal, but there is evidence that it was caused to flare up in one of the front bedrooms of that property. After the fire Mr Griffiths continued to reside with his family, cleaned up the room and sorted out the property.
2 The plea was made on his behalf and the first thing to note is that of course by contesting these charges he lost the opportunity for a discount on his sentence. However, I certainly am not going to aggravate his sentence because of that course which he was entitled to pursue. There are other matters that have been mentioned to the court in relation to similar charges, but they were discontinued and I do not take them into account in any shape or form.
3 The first matter to note is that there was substantial delay in this matter, the offences having been committed in 2007. I am entitled to take into account the period that has elapsed between commission and disposition. I am entitled to take it into account, particularly where it appears that the offender has undergone a significant amount of change in his personal circumstances during that time, so I do take it into account, not simply to note that these matters have been hanging over his head, but that during that period of time, there has been some significant improvement in his personal circumstances which I am entitled to take into account in arriving at an appropriate sentence.
4
The social history and background history of Mr Griffiths is adequately set out in both a report of the Department of Justice dated 25 September 2009 and also in part the report of Carla Lechner, a forensic psychologist dated
1 October 2013 which was tendered and which I have read and taken into account. The most significant parts of those reports are in relation to three matters: one , which relates to his level of intelligence and disability; two, his history of alcohol abuse, which has been longstanding in his background history and his general health and three, his family situation, which includes not only significant health issues for himself, but those of his family, his mother and three brothers which is a relevant matter for me to take into account and I will explain that in a moment.
5 In relation to the first, it is clear that Mr Griffiths suffers a mild intellectual disability that affects his capacity, not just to live, but to effectively solve the problems of his everyday life. That has been longstanding and no doubt been made worse by his past alcohol abuse. It is clear on the observation of those who have assessed him, that he has maintained abstinence for at least three years and , without needing to decide whether he is an alcoholic, it is clear that significant alcohol abuse over a period of time probably amounts to alcoholism. His abstinence therefore is important as indeed his ability to remain abstinent .
6 The third aspect is that he has an elderly mother who is ill and that , especially during more recent times, requires him to have full time care of her as well as that of his brothers Dale, Kim and Robin. This responsibility has fallen upon him as they are quite significantly disabled and suffering a range of ailments, as recently as suffering a stroke in relation to his brother Robin. It is clear that Mr Griffiths provides significant assistance to them all and he is important in that framework, in an area where few support services exist and are not available to him. On top of which he has a range of health problems himself. He suffers from sleep apnoea and narcolepsy, a significant heart condition, lung problems and he is on a array of medications. He is grossly obese and continues to smoke a significant amount of cigarettes per day despite his lung problems. In relation to this offending in fact Mr Griffiths has no recall of what occurred due to the level of intoxication. I am of the view that he understands that the impact of incarceration would be, not only on him, but on the rest of the family, and in these circumstances I am entitled to take the impact on the family into account in considering what is the appropriate disposition for him. In this I have been assisted, not just by a positive suitability assessment by the Officer of Corrections , but by the report from the Department of Human Services and in particular the report prepared by Bernadin Streeter, the case manager, Disability Client Services in the Central Highlands area. She has also kindly appeared in court today and given evidence in relation to what is proposed, in relation to a justice plan for Mr Griffiths and provided an overview report confirming a number of the matters to which I have referred.
7 I take into account Mr Griffiths' prior history, his offending history which commences back in 1987. he has been before Court on very many occasions , and not just in Victoria I might say, usually charged with dishonesty offences or driving offences. Some of those offences, as was noted in the Corrections Victoria report, had been dealt with by a large number of community base dispositions and terms of imprisonment. Those community base dispositions have largely been complied with and completed, although some of them have been breached on a couple of occasions.
8 The most important and relevant prior is an arson charge in 1995 where he was convicted for manslaughter and sentenced to a term of imprisonment and that of course is a matter which must raise some concern with the court. However , it is clear from the circumstances that the link is intoxication. So his current abstinence from alcohol is important, but one which will require treatment as per the justice plan recommendation, in order to ensure that it continues into the future.
9 Corrections Victoria has also recommended that all offenders that have been convicted of an arson offence are to be assessed by Corrections Victoria Sex Offenders' program which, because of his disability, will require a referral to the Disability Forensic Assessment and Treatment Service and I have noted their recommendation that the ‘offending behaviour’ condition be imposed to facilitate that requirement.
10 The two reports that I mentioned before of the Department of Human Services set out, not just his background, but what is proposed in relation to a justice plan and having read it and considered it, it seems to me that with his agreement, the requirements and recommendations outlined therein, provide a solid foundation for a disposition of this court so that there will be a combination of programs and educational sessions recommended by the community fire safety authorities, assessment by DFATS and participation in any recommended programs that clinicians deem necessary to reduce his risk of re-offending and that he receives support from disability client services case management to monitor his progress and to provide assistance where it is required in his current circumstances, particularly in relation to implementing strategies to maintain his abstinence and to attend regularly for supervision.
11 I appreciate that he is in a place in which services are difficult to access, but he seems to have the ability to use public transport and other ways, in order to comply with what will be required of him over the period of the order which I intend to be 12 months. So I will make a community corrections order which will include conditions of supervision, of treatment and rehabilitation for offending behaviour programs and a justice plan which will be attached as a condition to the order and I direct that Mr Griffiths participate in the service as specified in the plan, prepared under sub-s.3, paragraph C and a copy of the order will be supplied to the secretary to the Department of Human Services attaching the conditions.
12 In my view this particular disposition is appropriate in these circumstances. I think it is appropriate that the Crown have submitted that such a disposition is within an appropriate sentencing range for these matters. So the order will be made for a duration of 12 months. I have signed ancillary orders whereby I have ordered the retention of a biological sample and that order is not opposed. Is there anything else that I need to order Ms Warren?
13 MS WARREN: No Your Honour, as Your Honour pleases.
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HIS HONOUR: All right, well thank you for your assistance. Thank you
Ms Streeter I appreciate you coming all the way to give that evidence.
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