R v Wells
[2018] ACTSC 121
•4 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wells |
Citation: | [2018] ACTSC 121 |
Hearing Dates: | 8 February, 16 March 2018 |
DecisionDate: | 4 April 2018 |
Before: | Mossop J |
Decision: | See [32] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – arson – act endangering life – common element in both offences – offender not to be doubly punished for that act – offender diagnosed with terminal illness – whether Court should sentence in light of terminal prognosis – public interest in finalising proceedings – medical condition taken into account in determining appropriate sentence – sentence must not be manifestly inadequate – offender served time in custody for offence prior to sentencing – sentence of imprisonment suspended upon entering good behaviour order |
Legislation Cited: | Crimes Act 1900 (ACT), s 27(3) Criminal Code 2002 (ACT), s 404(1) Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(m), 33(1)(r), 102, 105 |
Cases Cited: | Cardona v The Queen [2011] VSCA 58 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Cumberbatch [2004] VSCA 37; 8 VR 9 |
Parties: | The Queen (Crown) Michael Wells (Offender) |
Representation: | Counsel T Hickey (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 122 of 2017 |
MOSSOP J:
Introduction
Michael Wells has pleaded guilty to one count of arson and one count of an act endangering life. The maximum penalty for the offence of arson contrary to s 404(1) of the Criminal Code2002 (ACT) is 15 years imprisonment and a fine of $225,000. The maximum penalty for the offence of an act endangering life contrary to s 27(3)(e) of the Crimes Act 1900 (ACT) is 10 years imprisonment.
Facts
The offender and his partner were in a long-term relationship but lived separately. Each suffered from schizophrenia. On 6 February 2017, the offender was upset with his partner who he blamed for letting down the tyres of his car. He had contacted police about the slashing of his tyres and they had attended. They were unable to make contact with his partner.
Later that morning, the offender told a friend of his, who was watching television in the offenders unit, that he was going to set fire to his partner’s house. He walked to a nearby service station where he filled up a 5L jerrycan with petrol. This was captured on closed circuit television (CCTV). He walked back to her house and poured the petrol over the corner of the kitchen and lounge room and set it alight. His partner was asleep in a bedroom at the time. Notwithstanding that the house had filled with black smoke, she managed to escape from the burning house. She made two attempts to re-enter the house in order to save her dog. Her dog eventually turned up unharmed.
The Fire Brigade attended and took an hour and a half to extinguish the fire. The offender made admissions to a neighbour about the fact that he had burned the house down. As a result of police viewing CCTV footage of the offender at the petrol station the offender was arrested in the early evening. He made admissions to police that he had taken the law into his own hands. Police found the jerrycan in a laundry cupboard in his house. He made admissions about what he had done.
The house that was destroyed was a house rented to the partner of the offender by the Commissioner for Social Housing. A reparation order in the sum of $271,850 was initially sought by the director. However, because of the further evidence about the offender’s health, that application was subsequently withdrawn.
A victim impact statement discloses that the victim lost her house of nearly 21 years, a pet lizard, as well as personal and sentimental items. She was forced to relocate to a new community and that has adversely affected her mental health.
Subjective circumstances
The offender is 62 years old. He had a supportive upbringing. He was in a relationship with his partner for 20 years up until the date of the offence. This relationship was “rocky” due to mutual mental health issues and frequent abuse of alcohol and drugs.
He was granted bail to reside at the Brian Hennessy Rehabilitation Centre, a secure mental health facility.
He completed Year 11 at school. He has been unemployed since 2011 due to his deteriorating mental health. At the time of the pre-sentence report he was receiving the disability support pension due to his diagnosis of schizophrenia. Most of his employment history has been as a cleaner, although he did work in the mid-1980s for the Australian Bureau of Statistics doing clerical work.
His finances are managed by the Public Trustee and Guardian. I assume that this is pursuant to a guardianship order.
Prior to being arrested he was consuming alcohol at the rate of about 10 to 17 standard drinks per day. Between the ages of 17 and 21 years he had a history of psychiatric admissions due to psychosis exacerbated by his cannabis use. He has also had a history of drug abuse including methamphetamine, psilocybin mushrooms and lysergic acid diethylamide (LSD). He was using around $80 of heroin intravenously each fortnight. He reported abstinence for at least the period since his arrest.
He was diagnosed with schizophrenia in 1973 and had multiple psychiatric admissions between 1974 and 1994. More recently his mental health has been stable and is managed by his general practitioner.
He blamed his offending conduct on his and the victim’s mutual drug and alcohol use and poor mental health. He said that his conduct was in retaliation for the victim causing damage to his property. He did appear to accept some responsibility for his flawed decision-making.
He was assessed as being at a medium to low risk of reoffending.
A psychiatric report disclosed that the offender is prescribed antipsychotic medication which is administered by injection once per month. He had been taking medication in this manner for the past 35 years. At the time of the offences, the offender had been compliant with his medication regime. The diagnosis at the time of examination in September 2017 was “schizophrenia, multiple episodes, currently in remission.” The psychiatrist also diagnosed Opiate Use Disorder which was in remission and Alcohol Use Disorder which was also in remission. The psychiatric report provided: “Mr Wells’ Schizophrenia did not clearly cause or contribute to his offending behaviour, as Mr Wells was not acting on or suffering from psychotic symptoms, such as delusions or hallucinations at the times of the incidents.” The report concludes that it did not impair him in a way that resulted in him being unable to exercise appropriate judgment and he knew that what he was doing was wrong.
An occupational therapist report disclosed that, although at the time of the assessment he was living at the Brian Hennessy Rehabilitation Centre, he would be able to return to independent community living.
The report of his progress at the Brian Hennessy Rehabilitation Centre was positive. He has participated in every program available and frequently requested more. He became an active member of the Centre’s community and was looked to as a role model, friend and advocate. There was considerable evidence of his constructive participation in a community garden project within the Centre.
A letter from friends of the offender’s late parents attests to the fact that when his medical condition is under control “he can be the kindest and most helpful person around”. A letter from the offender to the Court indicated his remorse for his conduct and stated that he did not intend to harm of the victim.
At the hearing on 16 March 2018, documents were tendered which indicated a diagnosis of metastatic carcinoma. The letter from a radiation oncologists at The Canberra Hospital to his general practitioner (dated 21 February 2018) disclosed that x‑rays and bone scans showed lytic lesions in the spine, pelvis, humerus and skull. A lytic lesion is the destruction of bone due to cancer. Computed tomography (CT) imaging demonstrated a mass in the left lung consistent with primary lung cancer. He had suffered near complete destruction of the T9 vertebra, as well as lesions in the L5 vertebra and sacrum. His pain was controlled with medication. Because of the severity of the destruction of T9, spinal cord compression and paralysis were very likely in the near future. The offender consented to palliative radiotherapy in order to manage that issue.
On 8 March 2018, the oncologist provided a further report confirming a diagnosis of metastatic squamous cell carcinoma which had arisen mostly from the primary lung cancer. The prognosis was poor even with palliative chemotherapy, which the offender had refused. His prognosis was one to six months, although the offender’s condition could deteriorate more quickly. As at 15 March 2018 he remained in hospital with complications from his spinal cord compression. As at today’s date, the oncologist reported that he continued to deteriorate and has sever weakness in both legs, he required a catheter and was having continence issues. He reported that the overall prognosis remains complex as, aside from leg weakness, he has no other cancer that may end his life in a rapid fashion. He has not responded well to radiotherapy treatment at all and has refused systemic therapy. The doctor reported that enquiries were being made in relation to private accommodation for him in a supported environment as he was too young to be accommodated in a nursing home.
Criminal history
The offender has a limited criminal history. Prior to the current offending, his most recent offending was in 1991 for low range drink driving and prior to that, between 1976 and 1984, he had convictions for minor traffic offences and another charge dealt with without conviction.
Plea of guilty
The offender was charged on 7 February 2017. He was committed for trial on 16 May 2017. On 26 October 2017, before the matter had been listed for trial, he indicated that he would plead guilty and was arraigned and pleaded guilty on 1 November 2017. The plea of guilty was not an early one and the Crown case was very strong, but nevertheless it has significant utilitarian value.
Time in custody
The offender spent 129 days in custody on remand prior to being granted bail. Following the grant of bail, he was required by his bail conditions to reside at the Brian Hennessy Rehabilitation Centre. He resided there from 14 June until December 2017, when he was admitted to The Canberra Hospital, a period of approximately 6 months.
Consideration
Following the hearing on 16 March 2018, both parties filed written submissions about whether and how the Court should sentence the offender in the light of his terminal prognosis. The submission put on behalf of the offender was that the proceedings should simply be adjourned for a period of months. The likely consequence of that course would be that the offender would die prior to being sentenced and hence, the proceedings against him would abate. On the other hand, the submissions put on behalf of the Crown were that there was a public interest in finalising the proceedings and that the offender’s medical condition should be taken into account in determining the appropriate sentence. The Crown submitted that the prognosis of the offender should be taken into account under s 33(1)(m) and (r) of the Crimes (Sentencing) Act 2005 (ACT), because those considerations include the physical condition of the offender and whether the imposition of a particular penalty would be likely to cause particular hardship to the offender. The Crown pointed to the decision of the Victorian Court of Appeal in Cardona v The Queen [2011] VSCA 58 at [14]. It also pointed to authorities for the proposition that a terminal illness does not justify the imposition of a manifestly inadequate sentence: R v Cumberbatch [2004] VSCA 37; 8 VR 9 at [12]-[13]; Pfeiffer v R [2009] NSWCCA 145 at [15]-[16].
The submission on behalf of the offender was that while general deterrence remains a significant issue for offences of this type, his age and health circumstances make him a less suitable vehicle for general deterrence. Counsel for the offender submitted that while a custodial sentence may be appropriate having regard to the objective seriousness of the conduct, a term of full-time custody beyond the period already spent in custody was not called for.
The prognosis of the accused is poor and, so far as the evidence discloses, he is unlikely to live for very long. I accept the submission made on behalf the Crown that there is a public interest in finalising matters such as this. The position may be more difficult where, having regard to the circumstances of the case, it will be necessary to impose a further period of full-time detention upon an offender. In those cases there may be an appropriate basis for simply adjourning the sentence proceedings.
The offender’s health is clearly relevant to the length of any sentence. That he has been diagnosed with cancer and is terminally ill is relevant to take into account. Because of his terminal diagnosis and limited life expectancy specific deterrence becomes effectively irrelevant. A sentence of full-time imprisonment would clearly bear more heavily on him because of the deteriorating physical condition caused by the metastatic cancer and lytic lesions and the complications that follow from his deteriorating condition.
Because of the seriousness of the offences and the objective seriousness of this offending conduct as examples of those offences, a custodial sentence must be imposed. His minimal criminal record, health and the periods of quasi-custody are facts which warrant a significant degree of leniency. Although his mental health condition has not been shown to be causally related to his offending conduct, I take it into account as part of his subjective circumstances.
The health circumstances of the offender is a factor which is strongly in favour of him not being required serve any further period in full-time custody. He has already served 129 days in custody and spent six months in quasi-custody at the Brian Hennessy Rehabilitation Centre. In my view, it is possible to give him the benefit of significant leniency without imposing a sentence which is manifestly inadequate to address the objective circumstances of these offences.
The acts involved in the two offences are the same because the act that endangered life was the lighting of the building, the subject of the arson charge. The offences against s 27(3) of the Crimes Act (act endangering life) involves the use of an inflammable substance “in circumstances likely to endanger human life or cause a person grievous bodily harm”. Thus the offence is targeted at the likely consequence for a person. On the other hand, the Criminal Code, s 404(1) offence of arson is focused upon intentional or reckless causing of damage to a building by fire. It is thus focused upon the damage to that property. Although in Pearce v The Queen [1998] HCA 57; 194 CLR 610, the actual formulation of the two charges included an identically worded element, namely infliction of grievous bodily harm, the principle in that case applies here. The act of lighting a building is the same for each offence. There are two consequences for this. First, the offender must not be doubly punished for that act. That double punishment is not avoided by the use of concurrency (see Pearce v The Queen at [40]-[49]). Second, in sentencing the offender it is not appropriate to increase the sentence for arson by reference to the aggravating feature that the fire placed a person’s life at risk in circumstances where there is a separate charge which is targeted at that fact. I take the arson offence as being in the mid range of objective seriousness having regard to the nature of property lit, the extent of damage caused and the limited degree of premeditation and planning. I also treat the act of endangering life as being in the low to mid range of objective seriousness having regard to the indirect nature of endangerment and the existence of the arson charge.
On the charge of arson, the appropriate starting point is a sentence of 24 months imprisonment, reduced to 19 months on account of plea of guilty. On the charge of committing an act endangering life, for the reasons outlined above, the appropriate starting point is a sentence of nine months imprisonment, reduced to seven months on account of the plea of guilty. The sentences will be cumulative as to six months. This gives a total effective sentence of 25 months imprisonment. It is appropriate that the sentences be served by way of a partially suspended sentence of imprisonment which reflect the period of time spent in custody upon remand. The sentences will be backdated to 26 November 2017. The sentence will be suspended upon the offender having served 129 days imprisonment upon him entering a good behaviour order for a period of two years. The accused, because of his health, is not present in Court. He was present on 8 February 2018 but not 16 March 2018. He has throughout been legally represented. I am told that the undertaking required for a good behaviour order can be drawn up and taken to him by a deputy registrar this evening or, in any event, in a very short period. If, for any reason, he does not give the relevant undertaking, then this will trigger the potential for re-sentencing under the s 105 of the Crimes (Sentencing) Act.
Orders
The orders of the Court are:
1. On the charge of arson (CC2017/1947), the offender is convicted and sentenced to 19 months imprisonment commencing on 26 November 2017 and ending on 25 June 2019.
2. The sentence is to be suspended after having served 129 days upon entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
3. The Court notes that the offender has served 129 days in custody.
4. On the charge of act endangering life (CC2017/1948), the offender is convicted and sentenced to imprisonment for seven months commencing on 26 May 2019 and ending on 25 December 2019.
5. The sentence is to be suspended upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of two years.
6. I direct that at the time of entering the undertakings to be of good behaviour the offender is to be given the explanation required by s 102 of the Crimes (Sentencing) Act 2005 (ACT).
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 13 June 2018 |
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