R v Hamilton (No 2)
[2019] ACTSC 330
•1 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hamilton (No 2) |
Citation: | [2019] ACTSC 330 |
Hearing Date(s): | 1 July 2019 |
DecisionDate: | 1 July 2019 |
Before: | Burns J |
Decision: | See [26]–[33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – committing an act endangering life – real steps towards rehabilitation – suitability for Intensive Corrections Order |
Legislation Cited: | Crimes Act 1900 (ACT) s 27(3)(e) Criminal Code 2002 (ACT) s 404(1) |
Parties: | The Queen (Crown) Melissa Hamilton (Offender) |
Representation: | Counsel S Janackovic (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number(s): | SCC 240 of 2017 |
BURNS J:
Melissa Hamilton, you appear before me today for sentence with respect to one offence of arson (CC2017/9351), contrary to s 404(1) of the Criminal Code 2002 (ACT), and one offence of committing an act endangering life (XO2017/31256), contrary to
s 27(3)(e) of the Crimes Act 1900 (ACT). The maximum penalty for the offence of arson is 15 years’ imprisonment, a fine of $225,000, or both. The maximum penalty for the offence of committing an act endangering life is 10 years’ imprisonment.
You were first charged with arson on 22 August 2017. You pleaded guilty to that charge (CC2017/9351) on 5 December 2017 in the Magistrates Court and you were committed for sentence to this Court. The charge of committing an act endangering life (XO2017/31256) was charged ex officio in an indictment dated 4 December 2017 and you pleaded guilty to that charge on 8 April 2019, shortly before your trial was due to commence.
An agreed Statement of Facts was tendered at the sentence hearing. On
12 August 2017, you, knowing that your partner Matthew Burden was asleep upstairs, caused the flammable liquid of a hairspray can to ignite, setting fire to a couch in the living room of your home. The fire spread rapidly from the lounge room until the whole house was engulfed by flames.
Very significant damage was done to the premises. Before starting the fire, you had gathered important items together and you told your children to go outside. While you were outside the premises, you and your children called out to Mr Burden.
Mr Burden awoke to find the flames at the stairs, and he had to jump out of an upstairs window onto the roof of an adjoining property to escape the flames. The fire brigade attended, as did the police.
You initially told police that the fire started accidentally after you dropped a cigarette in the downstairs living room. About a minute later, you said that you had caused the fire by deliberately igniting hairspray and setting fire to wads of paper in the living room. You said that when the paper did not cause the house to ignite, you directed the flame from the hairspray can to the back of the couch, causing it to ignite.
You made statements to police to the effect that you believed that your daughters were being interfered with, but you would not indicate by whom. You were assessed by the forensic medical officer as unfit to participate in an interview and unfit for custody.
Subsequently, you told police that you believed that Mr Burden had been interfering with one of your children. You were taken to the Adult Mental Health Unit at the Canberra Hospital, where you remained until 21 August 2017. On that date, when you were discharged, you were arrested by police and you remained in custody until you were granted bail on 14 December 2017.
You have spent a total of 115 days in custody, attributable to these offences and a further period of approximately nine days in the Mental Health Unit.
You have a minor criminal history which I will ignore for present purposes.
An assessment for an Intensive Correction Order, dated 28 June 2019, notes that you have been known to mental health services since your childhood years and you have been diagnosed with Borderline Personality Disorder, depression and anxiety.
You have been intermittently medicated in the past, although you are not currently on any prescribed medication. The Adult Mental Health Unit medical discharge summary, dated 21 August 2017, notes that you admitted to smoking ice with your partner on
12 August 2017. You admitted setting fire to your home.
On the day of admission to the Mental Health Unit, you stated that you could not make sense of your actions and you referred several times to experiencing paranoia. Associate Professor Vanita Parekh assessed you on 12 August 2017, on behalf of the police. She formed the opinion that you were suffering from a mental illness.
A subsequent report from Dr Anna Farrah, dated 30 November 2017, noted that you had been arguing with your partner about your belief that he had been unfaithful to you, at about the time of these offences.
You stated that in the 24 hours prior to the offences you had consumed ice, but you could not recall how much you had used. Dr Farrah diagnosed you as having suffered from an Amphetamine Use Disorder at the time of the offences. She believed that you did not clearly suffer from any Psychotic Disorder, Mood Disorder or Personality Disorder.
Dr Farrah recommended that you would benefit from regular psychological treatment, to further evaluate you for Borderline Personality Disorder and to address your mood, anxiety and anger management issues, and to improve your interpersonal relationships.
I note that your plea of guilty in relation to the charge of arson, which was accepted by the Prosecution, is on the basis that you deliberately set fire to the couch in the living room but you were reckless as to whether the fire would spread upstairs and would engulf the entire house.
I am satisfied that since being released on bail, you have taken real steps towards rehabilitation. You have engaged with the Toora Counselling Service since February 2018 and you have attended a total of 36 counselling sessions, each of 50 minutes duration. Your counsellor says that she has observed you progress in your recovery and healing from past trauma.
You are increasingly able to notice unhelpful thoughts and behaviours and to challenge them. You have also continued to build resilience by improving your relationship with yourself, engaging in recovery activities and practising self-care.
You have taken up a peer role within Toora, supporting other residents who are in earlier stages of recovery. You have also completed an eight week Alcohol and Other Drug day program, and you are accepting ongoing counselling and support. You have been subject to random urinalysis screening and you have returned consistently negative results over a period of more than 12 months.
You continue to attend Narcotics Anonymous, Alcoholics Anonymous and Smart Recovery meetings weekly. You are currently being assessed for priority housing through ACT Housing and you hope to access stable accommodation in the near future.
The Assessment for Intensive Corrections Order suggests that you presently have a much better understanding of your offending and you are more willing to accept your responsibility for these offences than was previously the case. The author of the Assessment considered you as being at a low risk of general reoffending.
I note that you were assessed as suitable for an Intensive Correction Order. You have also been assessed as suitable for a Community Service work condition as part of such an order.
Offences of arson are always serious offences. General deterrence is always a significant sentencing consideration for such offences. The same may be said with respect to the present offence of committing an act endangering life.
I am satisfied that sentences of imprisonment, to be served by way of an Intensive Correction Order, is the appropriate sentencing option. I am satisfied that you have signed an undertaking to comply with all of the obligations of such an Order.
Sentence
I record a conviction on the offence of arson (CC2017/9351) and I impose a sentence of 14 months’ imprisonment, commencing today 1 July 2019 and expiring on 31 August 2020. My starting point was two years’ imprisonment but I have reduced that by six months to reflect your plea of guilty and I have also reduced that sentence by a further four months, to take into account pre-sentence custody.
I also record a conviction on the offence of committing an act endangering life (XO2017/31256) and I impose a sentence of 13 months’ imprisonment, commencing 1 September 2019 and expiring on 30 September 2020. My starting point with regard to that sentence was 15 months’ imprisonment and I have reduced it by two months in order to reflect what was in fact a late of plea of guilty.
The aggregate sentence of imprisonment which I have imposed is one of 15 months' imprisonment commencing today, 1 July 2019, and expiring on 30 September 2020.
I order that the sentence be served by way of an Intensive Correction Order. I decline to make any order by way of reparation in the light of your clear inability to pay any meaningful reparation.
In lieu, I impose a Community Service work condition as part of your Intensive Correction Order, requiring you to undertake 100 hours of community service within a period of six months. To that end, you are to report to the ACT Community Corrections Office at Level 1, 249 London Circuit within a period of 48 hours.
[Speaking directly to offender]
Undoubtedly, Mr Doig will explain that to you further, but I have imposed two sentences of imprisonment which total 15 months’ imprisonment commencing today and expiring on 30 September 2020.
You do not have to serve that sentence by way of full-time imprisonment, if you comply with the conditions of the Intensive Correction Order that I have imposed. One of those conditions is that you have to undertake 100 hours of community service within a period six months.
You are to be congratulated upon the efforts that you have made and the success which you have achieved in the period since you committed these offences. You have clearly taken the opportunity that has been given to you to try to deal with issues that are likely to cause you to commit further offences. I want you to understand that this is not the end of that process, it is really the beginning. You have to maintain your commitment.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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