R v Hartley

[2020] ACTSC 210

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hartley

Citation:

[2020] ACTSC 210

Hearing Date:

6 August 2020

DecisionDate:

6 August 2020

Before:

Elkaim J

Decision:

See [23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – genuine remorse – early plea – mental health of offender

Legislation Cited:

Magistrates Court Act 1930 (ACT) s 90A
Criminal Code2002 (ACT) s 404
Crimes (Sentencing) Act 2005 ss 6, 7, 10, 33

Cases Cited:

DPP v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
R v Verdins [2007] VSCA 102; 16 VR 269

Parties:

The Queen (Crown)

Joshua Hartley (Offender)

Representation:

Counsel

S McFarland (Crown)

H Hayunga (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 137 of 2020

ELKAIM J:

1. On 25 June 2020 the offender pleaded guilty to a single charge in the ACT Magistrates Court, which was committed to the Supreme Court for sentencing under s 90A of the Magistrates Court Act 1930 (ACT).

1. The charge is one of causing damage to a building by arson (CC5370/2020) contrary to s 404 of the Criminal Code2002 (ACT). The maximum penalty is 15 years’ imprisonment, a fine of $240,000 or both.

1. The plea of guilty was at an early stage, entitling the offender to a discount on his sentence, which I assess at 20 percent. I also accept the offender has expressed genuine remorse for his offending.

1. In May of this year the offender was living in a residential unit owned by St Vincent De Paul Community Housing. This is accommodation made available to disadvantaged persons. Such facilities are sparse and no doubt in much demand. Their destruction is therefore all the more telling.

1. On 2 May 2020 the offender consumed illegal drugs. He began to hear voices. He needed to leave the premises. He took a number of serviettes and lit them in each room of the unit. A fire ensued causing significant damage. It has yet to be repaired. The damage is evident from the photographs in Exhibit A.

1. I think the nature of the premises is an important factor in the assessment of the objective seriousness of the crime. Although there is no suggestion of premeditation, I nevertheless agree with the Crown’s submission that the offence is of about medium objective seriousness.

1. The offender was born in 1984. He is of Aboriginal heritage. He has a close relationship with his mother who unfortunately lives in Western Australia. He was in a long-term relationship. He has a child now aged 11 years. He apparently is on continuing good terms with his former partner who has said she would allow him to live with her until he found suitable accommodation.

1. The offender completed his Year 10 schooling and then had some training in nursing. He does not seem to have obtained any formal qualifications. He has however done well in finding work and has been able to maintain fairly steady employment. He thought his recent termination of employment was a factor in his misbehaving.

1. Although the offender probably drinks too much alcohol, his real problem is with drugs, including the use of methylamphetamines. He needs to address this substance disorder.

1. The Statement of Facts refers to the offender hearing voices. His solicitor said there was no established nexus between his mental health and the offence. The Statement of Facts perhaps suggests otherwise. Nevertheless there is no medical evidence and my raising of the issue did not prompt any application for an adjournment to obtain a mental health report.

1. Based on the sentencing material the offender clearly has mental health issues. They are to some degree addressed by medication, but obviously the benefit of the medication is lost when it is not taken. This seems to have been the case prior to the offence.

1. It was put on behalf of the offender that the offence was probably a suicide attempt. The offender has a history of suicidal ideation so this submission cannot be excluded. Again, it is regrettable there is no mental health report.

1. The offender has an extensive criminal history although most of it seems to be concerned with driving. There are two offences of property damage but they occurred many years ago.

1. Arson is a serious offence. While it is often a product of a mental health condition, this does not diminish its seriousness. This is because of the possible effects of an act of arson. These may extend not only to the location of the ignition but to adjoining premises as well as the welfare and lives of neighbours.

1. As always in sentencing it is important to take into account ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). The considerations in s 33 are obviously also important.

1. Section 10 of the Crimes (Sentencing) Act says that imprisonment should be a last resort. It was submitted that I might consider an immediately suspended sentence or an Intensive Correction Order. I do not think either alternative would be appropriate. I think a sentence of full-time imprisonment is inevitable. However I do think there is some benefit in a partially suspended sentence.

1. In reaching a conclusion about the length of the term of imprisonment, I think the offender’s mental health must play a significant part. The absence of a mental health report makes this task difficult, however as stated in R v Verdins [2007] VSCA 102; 16 VR 269 at [8]:

The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.

(Citations omitted)

1. Even though a specific diagnosis is absent here, but would have been helpful, I have little doubt, based on the Statement of Facts, that the offender’s mental impairment at the time of the commission of the offence was significant and influenced his actions. The offender’s perception of voices, in particular those giving him instructions and asking him questions, are a clear indication of his mental condition at the time.

1. Doing my best to combine the competing factors of the objective seriousness of the crime and the influence of the mental health of the offender, I think a term of imprisonment of 15 months is appropriate, but this will be reduced to 12 months to reflect the discount for the plea of guilty.

1. In addition I think the full-time imprisonment should be suspended after 7 months on condition that the offender enter into a Good Behaviour Order for a period of 12 months during which time he be required to comply with any directions, as well as core conditions, concerned with his attendance at drug and alcohol programs and mental health treatment.

1. In reaching this conclusion I have adopted the principles set out by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. In addition, at [178], consistent with above passage from Verdins, his Honour said:

I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].

1. The offender has been in custody for 87 days so the commencement date for his sentence will be 11 May 2020.

1. I make the following orders:

(a)For the offence of causing damage to a building by arson (CC5370/2020), the offender is sentenced to 12 months’ imprisonment to commence on 11 May 2020 and end on 10 May 2021.

(b)The period of imprisonment is suspended after 7 months, that is from 10 December 2020, on condition the offender enter into a Good Behaviour Order for a period of 12 months thereafter and that in addition to the core conditions of such an order the offender be required to comply with all directions of the Director General of ACT Corrective Services as to his attendance at drug and alcohol programs and mental health treatment.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 6 August 2020