R v Matthew
[2017] ACTSC 413
•21 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Matthew |
Citation: | [2017] ACTSC 413 |
Hearing Date: | 20 February 2017 |
DecisionDate: | 21 February 2017 |
Before: | Mossop J |
Decision: | See [24]–[25] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – arson – fire damage to vehicle, garage and house – young female offender – no previous convictions – partially suspended sentence of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 19 Criminal Code 2002 (ACT), s 404(1) |
Cases Cited: | R v CA (No 2) [2016] ACTSC 371 |
Parties: | The Queen (Crown) Chloe Leh Matthew (Offender) |
Representation: | Counsel D Swan (Crown) J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 96 of 2016 |
MOSSOP J:
Introduction
Chloe Matthew is charged with two charges. First, that on 2 September 2015, she caused damage to a vehicle; namely, a 2000 Subaru WRX belonging to Michael Wagner, by fire. Second, that she caused damage to a building by fire; namely, the garage at 1 Symers Street in Kambah. Each of these charges are contraventions of s 404(1) of the Criminal Code 2002 (ACT). The maximum penalty for such an offence is 15 years’ imprisonment or a fine of up to 1500 penalty units. The offender was charged on 22 November 2015. On 5 May 2016, the matter was committed for trial in the ACT Supreme Court. The indictment filed on 24 June 2016 included an additional charge of arson.
On 11 August 2016, she pleaded guilty to both counts, however indicated that the facts remained in dispute. The dispute at that stage as to who actually lit the accelerant in the garage. The matter was allocated for a disputed facts hearing commencing on 14 December 2016, but on that date an agreed set of facts was provided to the Court leading to the disputed facts hearing not proceeding. The plea of guilty was entered after committal to the Supreme Court. The Crown case appeared to be a strong one. The material before me indicates that the offender has not fully accepted responsibility for the offences and hence the plea of guilty does not indicate an acceptance of responsibility for the offending conduct. I will apply a discount of 10 per cent for the utilitarian value of the plea.
The offender has spent 57 days in custody prior to sentencing for these offences. Whilst 12 days of custody was also related to an arrest on unrelated charges, I was invited by the Crown to take those days into account in relation to these offences, and I will do so.
Facts
The offender was in a brief relationship with Mr Wagner between 8 July 2015 and 5 August 2015. When he ended the relationship, notifying the offender by text message on 1 September 2015, the offender was out drinking with friends. They went from the Transit Bar in Civic to a friend's house in Downer and then to the house of her friend, Jaimee Webb in Isabella Plains.
As a result of a conversation at that house, the offender, Ms Webb, and Ms Webb's partner Mark Wearn drove to Mr Wagner's address at 1 Symers Street, Kambah. The offender gained access to the garage and placed an accelerant on the vehicle before lighting it. The vehicle and the garage were destroyed and the fire spread from the garage to the main house, causing damage to a portion of the main residence. Photographs show, in addition to the destruction of the house and garage, the close proximity of the garage to the house and the fact that the damage to the house was significant.
The ACT Fire Brigade attended and extinguished the fire. Following the fire, the offender sent a text message to a friend incriminating herself. The text message involved an admission that she had used methylated spirits to start the fire. Later in the morning she sent further text messages to another friend seeking to establish a false alibi. She subsequently made admissions of her involvement to other persons. She only made limited admissions to the police in an interview in November 2015.
There are a number of aggravating factors in relation to the offending conduct. The offence involved some premeditation. It was intended to damage property; namely, Mr Wagner's vehicle, but had the capacity to cause much greater injury to persons and property. It was committed at night. It involved the use of an accelerant. It was committed for the purposes of revenge in the sense of assuaging the offender's unhappiness with the relationship or its termination. I note that no more specific intention in relation to revenge was established by the evidence. It did, in fact, destroy the garage and cause damage to the house as well as destroying the car. It was carried out at a time when the offender would have been aware that a number of people were likely to be in the house.
It is fortunate that no more than limited injuries were caused to people as a result of the conduct. I would assess the objective seriousness of the offence as being in the mid to upper range for this kind of offending.
Victim impact statements were tendered. Those statements were from Michael Wagner and his father Steven Wagner. Mr Wagner junior identifies the financial and emotional cost of the incident, the inconvenience relating to the loss of his car which was his pride and joy, and his loss of trust in people as a consequence of the incident.
His father, Steven Wagner, identifies that he suffered significant burns to his feet from which it took a substantial period to recover, that that had an impact on his work, that he was not able to live in his home for a substantial period, and that he suffered a particular loss as a result of his collection of tools and other equipment through which he pursued various recreations. He identified the particular loss to him as someone who took pleasure from being a practical person.
Subjective Circumstances
The offender has no prior convictions. She is 22 years old. She is the second of three children. Her father abused alcohol and methamphetamine. His violent behaviour led to her parents' marriage ending. She stated that she had no contact with her father since the age of 15. She reported to the author of the pre-sentence report that her stepfather was also abusive and she left the family home when she was 15 years old. Since being bailed to live with her mother in May 2016, her mother has reported a positive change in her daughter. Ms Matthew's relationships prior to Mr Wagner have been abusive and unsatisfactory. She has, subsequent to the offending conduct, entered into another relationship which has lasted approximately eight months and both partners appear to be happy with the relationship.
She is currently unemployed. Prior to her arrest, she had been employed as a contractor with AGL. She is not currently involved in any organised activities and has few pro-social peers. She has a history of abuse of alcohol in the recent past, drinking every day up until shortly before her arrest in March 2016. Following her arrest, she commenced using methamphetamine until she was remanded in custody for a second time. She has been diagnosed in the past with depression, anxiety, post-traumatic stress disorder and borderline personality disorder.
The author of the Pre-Sentence Report records that she maintained that she was not responsible for the current offences and claimed that she was bullied by the police and the DPP into pleading guilty. That statement in the pre-sentence report was explained and qualified by counsel for Ms Matthew during the course of submissions. She is assessed by the author of the Pre-Sentence Report as being at a medium risk of general re-offending. Her current relationship and her abstinence from drug and alcohol abuse are positive factors. Her mental health condition and history indicate that general deterrence is a less significant factor in sentencing than it might otherwise be.
A psychological assessment report prepared by Dr Danielle Clout, a clinical psychologist, describes the offender's personal circumstances and psychological condition in greater detail. It describes her very unsatisfactory history of relationships in more detail than the Pre-Sentence Report. The report indicates that she presently suffers from borderline personality disorder and post-traumatic stress disorder. It identifies that she currently suffers from severe levels of symptomatology related to borderline personality disorder and that she is likely to be:
quite emotionally labile, manifesting fairly rapid and extreme mood swings.
The author accords that:
She appears uncertain about major life issues and has little sense of direction or purpose in her life as it currently stands.
The report indicates that a period of full-time imprisonment is likely to have a negative impact on her mental health and increase the risk of her symptoms worsening. It also indicates that she would benefit from ongoing psychological assistance.
Other matters
Reparations orders are sought in favour of Mr Wagner Junior, whose car was destroyed, his father and another person residing at the property at the time who had property destroyed.
The amounts sought are as follows: Michael Wagner, $6500, being the value of the destroyed car, Steven Wagner, the father of Michael Wagner, $8000, being the value of property within the garage that was destroyed, Raymond John Eastcote, a boarder at the house, $500, being the value of personal items destroyed. The amounts were agreed to by the offender.
A further amount of $107,400 said to be damage incurred by a company identified as the owner of the property was not pursued in circumstances where further investigations would have been required to establish:
a) whether any loss had been suffered;
b) whether a loss had been suffered by an insurer which could not be recovered by reason of the decision of this Court in R v CA (No 2) [2016] ACTSC 371;
c) whether any loss had been suffered by the company, having regard to a claim on its insurance; and
d) the potential outside these proceedings for an insurance company to be subrogated to the rights of the building owner and make a claim directly against the offender. It was therefore not necessary to consider what the consequences would be of making a very substantial reparation order for the sentence that would otherwise be imposed.
Consideration
In my opinion, the objective seriousness of the offence means that no sentence other than a sentence of imprisonment is an appropriate one. It is significant that the offender is young and has no previous criminal history. Her mental health problems and the subjective circumstances of her upbringing are both mitigating factors and factors which give rise to criminogenic risk. I take into account the evidence that further time in prison may have an adverse effect on her mental health. It appears to me that maintaining some stability in her relationships and avoiding drug and alcohol abuse will be the keys to remaining free of further offending. That would be assisted by obtaining and maintaining employment and taking care with whom she socialises.
In relation to each offence, I will sentence the offender to imprisonment for a period of 14 months, reduced from 15 months on account of the plea of guilty. The sentences will be fully concurrent. Having regard to the approximately two months already spent in custody. I will backdate those sentences to 21 December 2016. Having regard to the gravity of the offence, notwithstanding that she has spent time in custody attributable to the current offence, I consider that it would be inappropriate to fully suspend the sentence from today. Rather, I consider that a total period of three months of imprisonment before suspending the sentence is appropriate. In making the further period in custody a modest one, I have also taken into account the reparation orders that I will make which will impose a substantial burden upon the offender.
If she does not comply with those orders, then she will be in breach of her Good Behaviour Order. The effect of this is that the sentence will be suspended from the commencement of 22 March 2017 upon the offender entering into a Good Behaviour Order for a period of 24 months subject to the conditions which I will outline in a moment. Those conditions are designed to promote the offender's capacity to address her mental health and alcohol and other drug issues. I did not consider that an Intensive Corrections Order was suitable. It appeared to me that this was not a case where drugs or mental health or other personal circumstances are such that they would benefit from the greater degree of supervision achieved by an Intensive Corrections Order as opposed to a Good Behaviour Order.
Orders
I therefore sentence the offender as follows.
In relation to each charge, I impose a term of imprisonment of 14 months, commencing on 21 December 2016 and ending on 20 February 2018, to be served concurrently. The sentence of imprisonment on each charge will be suspended from 21 March 2017 upon the offender entering into a Good Behaviour Order for a period of 24 months with the following conditions:
1. the offender is to report to ACT Corrective Services at Eclipse House within two days of her release from custody;
2. the offender is to submit to the supervision of ACT Corrective Services for such period as it deems appropriate but not less than 12 months from 22 March 2017 and obey all reasonable directions of the director-general or delegate of the director-general.
3. the offender is to undertake during the period of supervision such counselling, courses, programs or treatments as directed by the director-general or the delegate of the director-general, particularly in relation to the management of her mental health and abuse of alcohol or other drugs;
4. that during the period of supervision, the offender supply samples of blood or urine for alcohol or drug testing if required by an officer of ACT Corrective Services; and
5. that the offender comply with the reparation order made today.
I make reparation orders under s 19 of the Crimes (Sentencing) Act 2005 (ACT) in favour of Michael Wagner in the sum of $6500, Steven Wagner in the sum of $8000, Raymond John Eastcote in the sum of $500.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Tom Häkkinen Date: 5 February 2018 |