DPP v Hayes [2022] VSC 679

2 Earlier that night, a man called Aakash contacted you in response to an escort ad that you had placed online. He requested your services, and the two of you arranged to meet.

3 Mr Aakash was a friend of Mr Singh's. Although Mr Aakash lived elsewhere, Mr Singh allowed him to use the downstairs bedroom at the townhouse from time to time. After arranging to meet you, Mr Aakash contacted Mr Singh and told him he would be coming over to use the room; he asked Mr Singh to leave the sliding door to the downstairs bedroom unlocked.

4 You and Mr Aakash arrived separately, and parked near the townhouse around 2:00am. He took you into the downstairs bedroom, through the unlocked sliding door.

5 There is a dispute as to what, if anything, was said about the presence of other people in the townhouse, which I will consider shortly.

6 Mr Aakash paid you $180 cash for one hour. You performed oral sex on him, and had sexual intercourse. Mr Aakash asked you to have sex again and you refused, so he took money from your purse. You called someone on your mobile phone, and asked them to come and retrieve the money from Mr Aakash.

7 Mr Aakash asserts that he only took $180 from your purse; you assert that he took all the money you had, which was more than $300. It is not necessary for me to resolve that factual dispute for the purposes of sentencing you. What is clear is that you became very angry when Mr Aakash took the money from you.

8 Around 2:45am, Mr Aakash got dressed and left the property without locking the sliding door. He walked to his car. You followed him with your phone on loudspeaker, saying something like, "I'm in Point Cook and this guy raped me". You stood in front of Mr Aakash's car, trying to take a photo of his numberplate, but he drove away.

9 You walked back in front of the townhouse, and stood there for a couple of minutes. You then sent Mr Aakash three text messages saying, "I'm charging u with rape", "Your going to jail fucker" and "Cops hit your number plate". Mr Aakash blocked your phone number and deleted the text messages.

10 Around 2:48am, you sent Mr Aakash a text message saying, "And I'm setting your house on fire right now". You then went and sat in your car for about 4 minutes.

11 Whilst sitting in the car, you sent him another text saying, "Say good bye u are getting kicked out of this country". Around 2:50am you tried to call Mr Aakash, but he did not answer. You sent him two further text messages saying, "Oh and you left yor lighter cops are coming here now" and "U fucked with the wrong person".

12 Around 2:53am, some eight minutes after Mr Aakash had driven away, you began lighting a fire on the mattress in the downstairs bedroom, using only a lighter. The forensic evidence, as well as CCTV footage from a nearby property, suggest you set fire to the mattress in two or three separate places.

13 The room was carpeted, and had a pull-down blind and fabric curtains. There was no furniture in the room apart from the bed.

14 A couple of minutes later, you stood out the front of the townhouse and took four photos on your phone; by that stage, the bed appeared to be completely on fire. You got back into your car and drove off. A couple of minutes after that, you sent Mr Aakash a text message saying, "Your house on fire", and two photos of the fire.

15 Around 3:02am, whilst still in the Point Cook area, you pulled your car over and took a photo of the burning townhouse from a distance.

16 Neighbours became aware of the fire shortly after it was lit. A fire alarm had gone off, and one of the neighbours was out on his balcony, before you left the street. Some of the neighbours tried to rescue the occupants, but were unable to do so because of the intensity of the fire. Emergency services were called at 2:59am, and firefighters arrived at 3:08am. By that time, the townhouse was well alight and it was too dangerous to enter the property. A couple of hours later, once the fire was sufficiently under control, firefighters searched the townhouse and found the bodies of the deceased, all of whom had died from carbon monoxide poisoning.

17 Apart from completely destroying the Singh/Forrest townhouse, the fire caused damage to the party walls and roofs of the two adjoining townhouses. The total monetary damage caused by the fire was more than $1.12 million.

18 After you drove off, you exchanged several text messages with another potential client, before returning home. Around 3:34am, you sent your son two text messages saying, "Are U awake" and "I did something stupid". You also sent Mr Aakash another text message saying, "U raped me took all my money U fucked with the wrong person dickhead". Around 4:00am, you responded to a text message from an acquaintance called Gazman, saying, "A client took all my money so I burnt his house down", followed by "I'm so sick of people thinking they can just do this shit to me and nothing happens to them", and "He took what I had so I took what he had".

19 Around 1:30am the next day, you went to the house of a couple of your friends, Brandon and Melanie. You told them you had done something stupid, and showed them two photos of the fire. When asked what had happened, you told them you went to a client's house, he had sexually assaulted you by removing the condom after being told "no" multiple times, and he had stolen money from your purse.

20 You told your friends that you set the mattress on fire using a jetty lighter. You said you sent the client a photo of the fire so he would come back and deal with it, but you did not get a reply.

21 You were arrested on 3 December 2020. You were initially charged with three charges of murder, and three alternative charges of arson causing death. You first offered to plead guilty to arson causing death before the committal mention in the Magistrates' Court. You reiterated this offer several times, until it was accepted in May 2022. You formally entered your guilty plea to the current charges on 13 July 2022, after the murder charges were withdrawn.

22 The prosecution asserts that, before you entered the townhouse, Mr Aakash told you to keep your voice low because there were people sleeping upstairs, to which you replied, "Ok". You strongly dispute that he said that, or that you knew that there were people in the townhouse. Disputed facts such as these, that are adverse to the interests of the offender, must be proven by the prosecution beyond reasonable doubt.

23 There are a number of reasons why I do not accept Mr Aakash's statement to police about the alleged conversation.

24 I had the opportunity to observe Mr Aakash giving evidence at a preliminary examination in this court. Even though he was not subject to the more rigorous cross-examination that might have occurred had there been a trial, he was not an impressive witness. I found his account to be self-serving and unconvincing.

25 Mr Aakash also has previous convictions for making a false report to police, and for theft.

26 By the time Mr Aakash spoke to the police, and later gave evidence, he knew that his friends had died after he had driven away, leaving an angry stranger at their unlocked home in the middle of the night. He had blocked your messages, and simply driven away from the mess that he had created. He had a clear motive to give an account that shifted any blame for what happened away from himself.

27 It is unsurprising that the prosecution dropped the murder charges, after they had an opportunity to assess Mr Aakash's performance as a witness for themselves.

28 In contrast to Mr Aakash's account, you have consistently said that you did not know that there was anybody in the building. You told the police and your friends that you had been asked to be quiet because the man had nosey neighbours.

29 There were no personal items in the bedroom, or any other reason to think that anyone other than Mr Aakash lived in the building.

30 I do not accept the truth of everything that you told the police or your friends. For example, you lied to the police when you told them that Mr Aakash was still inside when you lit the fire, and that he had thrown cardboard on the bed.

31 However, there is no dispute that when you were told that three people had died in the fire, you were immediately and significantly distressed. Your lengthy conversation in the police car, after you were arrested, was covertly recorded. Through your hysterical crying, you kept expressing disbelief that the fire had burned the townhouse down, or that anyone had been hurt. You remained distraught throughout your formal record of interview, repeatedly stating that you didn't know that people were in the house.

32 You were undoubtedly very angry at Mr Aakash for the way he had treated you. You had been robbed and disrespected by clients before. You wanted to punish him for what he had done to you. As you said to your acquaintance, Gazman, "He took what I had, so I took what he had". Your actions were a dangerous and totally inappropriate overreaction to Mr Aakash's conduct.

33 That said, you do not have a history of behaving violently. Although you were not remotely remorseful for setting fire to what you believed to be Mr Aakash's property, you were genuinely and immediately remorseful upon learning that people had been killed as a result of your actions.

34 Even though the prosecution has not established that you knew that there were other people in the townhouse, your offending is still serious.

35 You were angry and upset at Mr Aakash, because he had taken your money even though you had provided sexual services to him. After following him out of the house, you confronted him verbally at his car, before he drove off. Over the next eight minutes or so, you sent a series of angry text messages, trying to get him to come back or respond. When he failed to do so, you went back inside and set fire to his mattress in retaliation. Afterwards, you continued to try to get him to come back, by sending him photos of the fire.

36 Although the offending did not involve any significant degree of pre-planning, it was not entirely spontaneous either.

37 At the time of setting fire to the mattress, you may not have thought about the possibility or likelihood of the fire spreading and destroying the rest of the house. But by the time you left the scene, there were substantial flames visible from out on the street, and it should have been apparent that the fire might get out of control.

38 Even though you did not know there was anyone asleep in the particular townhouse, it was in the middle of a row of suburban townhouses. You also lit the fire in the early hours of a weekday, when residents of neighbouring houses would be expected to be at home and asleep.

39 Before you drove off, you saw a neighbour on the balcony of the house two doors down, and the smoke alarm was ringing. Even if you thought that someone would be alerted to the fire and would respond, you took no steps to contact emergency services yourself.

40 After you drove away, you stopped to take a photo of the fire at a distance. By that time, you could see the size of the fire and must have realised how serious it was; you still made no attempt to contact emergency services.

41 Three innocent people lost their lives as a result of your actions. The fire spread so quickly that Mr Singh and Ms Forrest were unable to escape it, despite their best efforts. Ivy was the most vulnerable of all, being totally incapable of helping herself.

42 Your actions have had terrible consequences for so many people, which have been eloquently described in the many moving victim impact statements that were provided by family members, friends and neighbours.

43 Inderpal Singh, known as Indi, was 28 when he died. He grew up with his family in India, before moving to England to study. In 2015, he moved to Australia to undertake further studies. At the time of his death, he was working for a food delivery business, which is where he met Mr Aakash. Indi was particularly close to his sister, Harpreet, and her children, who also live in Melbourne. His family describe him as outgoing, loving, smart, kind and compassionate.

44 Abigail Forrest, known as Abbey, was 19 when she died. She grew up in the Leopold area with her parents, Elizabeth and Alan, and her sister, Emily. Abbey was very close to her family, and grew up in a home full of laughter and love. She was the first in her family to graduate from high school. She wanted to be a paramedic, and was working during her gap year after school. Abbey loved animals, and spent a lot of time riding horses with her sister as she was growing up. She was cheeky and playful, and loved playing tricks on her family.

45 Abbey and Indi met in December 2019, and quickly fell in love. Abbey fell pregnant in March 2020, and their families were excited. Indi lived with the Forrest family during lockdown, cooking Indian meals and sharing many happy times together. Abbey's family welcomed Indi with open arms, and were looking forward to learning more about Indian culture.

46 Ivy was born on 13 November 2020. After leaving the hospital, the new family moved straight into their new home in Point Cook. Ivy was only 19 days old when she died. Indi's family were planning to come to Australia to meet Ivy, and celebrate her birth with Abbey's family.

47 Losing three loved ones in such terrible circumstances has been heartbreaking for their families and friends. Their lives have been changed forever.

48 Not only did you take the lives of Abbey, Indi and Ivy, you also destroyed their loved ones' dreams of a shared future. Both families feel an immense sense of grief and loss, knowing they will never see Ivy grow up, or get to share all of life's celebrations and milestones with the young family.

49 Their pain is made worse by thoughts and nightmares about the circumstances in which Abbey, Indi and Ivy died.

50 Indi's father died four months after Indi's death, but his family believe he had been dying inside ever since he heard what happened to his son.

51 A victim impact statement was also received from two of the immediate neighbours of Abbey and Indi. When the fire started, they were asleep with their five month old baby. They were forced to flee for their own safety, losing most of their belongings (including baby photos and keepsakes) in the fire. They are both anxious and traumatised by what they saw and experienced that night.

52 There is nothing this court can say or do that will bring back Indi, Abbey and baby Ivy, or heal the grief and pain caused to so many people by your actions. The sentence I am going to impose is not a reflection of the value of their lives. Rather, it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the impact of the offending on any victims of the offence.

53 I turn to consider your personal circumstances, most of which are not disputed by the prosecution.

55 Your childhood was chaotic, unstable and abusive. From a very young age, you suffered sadistic physical and mental punishments at the hands of your alcoholic mother. Your father tried to protect you, but did not prevent the mistreatment. You and your younger siblings were often left unsupervised, and often went hungry. You began running away from home when you were five.

56 You were taken into state care at age seven. You were separated from your three younger siblings. Between the ages of eight and 12, you were placed with 26 different foster families. You ran away from many of these placements, and spent time in and out of institutional care. At the age of nine, you were sexually abused by a foster sibling. Two years later, you were sexually abused by a foster father.

57 When you were 12, you were returned to your mother's care. You were physically and sexually abused by your mother's new partner, a man who was later charged with sexually abusing multiple children over many years. You were returned to state care, but began spending more time on the street.

58 You attended school sporadically, until leaving it completely by the age of 14. You found school difficult, which was compounded by the frequent moves between foster families.

59 When you were 16, you stopped receiving state support and began sex work to support yourself.

60 Your first child was born shortly after you turned 17. You have had three more children since then. You have never had a stable or long-term relationship.

61 You have had little paid employment throughout your life, apart from sex work. You have experienced a number of instances of being robbed or otherwise mistreated as a sex worker. Because sex work was illegal in South Australia at the time, you were convicted on many occasions between 1994 and 1997 for prostitution-related offences.

62 At the time of the offending, you were working as a sex worker to support yourself and your youngest son who suffers from a number of disabilities.

63 You have used illicit drugs at various times in your life, beginning when you were about 12. Around the time of the offending, you were a regular user of GHB and methamphetamine. However, you were not under the influence of any illicit drugs at the time of this offending.

64 In a case called Bugmy[1], the High Court acknowledged that the effects of profound childhood deprivation may affect an offender's moral culpability in two different ways. First, being raised in an environment of alcohol abuse and violence may make the offender's moral culpability less than that of a person whose formative years have not been marred in such a way. Secondly, exposure to extreme violence and abuse may explain the offender's responses when frustrated, by compromising the person's capacity to control their impulses. The precise weight to be afforded to the effects of social deprivation in an offender's youth and background requires individual assessment in each case.

65 The Court of Appeal has recently noted how frequently the Bugmy principles are applied to an offender's circumstances, so as to reduce their moral culpability.[2]

66 In this case, the prosecution accepts that the Bugmy principles apply to your personal background, so as to reduce your moral culpability. I also accept that the abuse and deprivation you suffered as a child goes some way to explaining your reaction to Mr Aakash's behaviour on the night in question. You have been exposed to physical and sexual violence, and mistreated or disrespected, by numerous people throughout your life, in situations where you should have expected to be safe. I accept that your judgment, and ability to control your impulses, in response to Mr Aakash's behaviour were compromised to some extent by your upbringing. That reduces your moral culpability for these offences to some extent.

67 In addition to the Bugmy principles, your counsel argued that well-established legal principles known as the Verdins principles also apply in your case, so as to further reduce the sentence that might otherwise be imposed. In Verdins,[3] the Court of Appeal said that an offender's impaired mental functioning may be relevant in sentencing, in one or more of six different ways, including the following. An offender's moral culpability may be reduced, if the impairment in their mental functioning is shown to have had a realistic connection with the offending. The court may also conclude that the impairment should moderate the need for general and specific deterrence.

68 Whether there should be any such reduction or moderation depends on what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.

69 For the purposes of sentencing, you were assessed by Mr Patrick Newton, a clinical and forensic psychologist. In his report dated 9 October 2022, he stated that your emotional, social and psychological development were all deeply affected by the pervasive and protracted instability in your early years. This has continued to affect you in your adult life, and the effects have been compounded by your experiences of trauma.

70 Mr Newton diagnosed you as having a major depressive disorder and a borderline personality disorder. Both of those disorders fall within the concept of "an impairment of mental functioning" for the purposes of the Verdins principles.

71 Mr Newton's assessment was based almost entirely on his interviews with you. Although he requested access to Justice Health records and other historical documentary material, for reasons that were not satisfactorily explained to the court, your solicitors did not obtain such material.

72 Given your troubled background, it is not difficult to accept Mr Newton's observation that you have experienced anxiety for much of your life. I also accept that you are currently suffering from a major depressive disorder, which persists at a moderate level of intensity, and that your depression is more intense and difficult to treat because of your personality disorder.

73 You have a long and repeated history of self-harm and suicidality. In particular, you have self-harmed in custody, and still experience suicidal ideation. You are currently taking antidepressant medication, but still experience depressive symptoms.

74 However, there is no satisfactory evidence that you were suffering from a major depressive disorder at the time of your offending, so as to reduce your moral culpability or the need for deterrence on that particular account. It seems more likely that your depressive disorder has developed as a reaction to your offending and its consequences.

75 According to Mr Newton, your borderline personality disorder has arisen from the instability in your childhood, and has been reinforced by the recurrent experiences of powerlessness and abuse you have suffered as an adult. He says you have a diffuse and unstable sense of identity, profound difficulties establishing and maintaining secure attachments, fluctuating self-esteem, and scepticism about the motivations of others. You are emotionally labile and behaviourally dysregulated. You have sought oblivion in drug use, or resorted to short-term solutions that typically serve only to exacerbate your difficulties. Emotionally, you oscillate between turning your distress outwards (in the form of irritability, resentment and volatile expressions of emotion), and turning it upon yourself (in the form of self-harming behaviour).

76 In Mr Newton's opinion, your personality disorder has a significant effect on your social judgment and moral reasoning, and underpins the poor decision-making and impulsivity in your offending conduct.

77 Although the evidence in this case as to the causal link between your personality disorder and the offending is not as strong as in some cases, I accept that your borderline personality disorder operates to moderate to some degree your moral culpability for the offending.

78 Your personality disorder reduces, but does not entirely remove, the need for general deterrence. Lighting a fire in someone's home is inherently dangerous and such crimes should be denounced. However, the impulsivity that comes from your personality disorder does reduce the relevance of general deterrence as a sentencing consideration.

79 Although he did not address the issue at all in his written report, in his oral evidence Mr Newton also expressed the opinion that both of your mental impairments would mean that you would find imprisonment more burdensome than for a person not suffering from such conditions. Given the brevity of his evidence in relation to this matter, I have only given it limited weight.

80 Both Bugmy and Verdins principles apply to you because of your severely disadvantaged childhood, given that your personality disorder arose from that childhood. However, it is appropriate to consider the effect of both principles separately, because they provide a more complete picture of how you came to commit these offences. As stated by the Court of Appeal, sentencing is not a "counting" exercise in which mitigating factors are "added up".[4] I have drawn on both of these matters, together with all other relevant matters, in assessing your moral culpability.

81 In many cases in which the Bugmy and Verdins principles arise, the inability of an offender to control their response to frustration or emotional challenges may decrease their moral culpability, but increase the importance of protecting the community. However - and somewhat remarkably, given the traumatic and unsettled life you have lived - you have no history of violence or serious criminal offending.

82 According to Mr Newton, your personality disorder is likely to deteriorate steadily if you do not participate in intensive specialist treatment. It is the responsibility of the state, which controls your imprisonment, to ensure that treatment is made available.[5] However, in setting a non-parole period, I have allowed for the likelihood that such specialist treatment is more likely to be available in the community than in custody. Even with optimal treatment, Mr Newton describes your treatment course as very challenging. But Mr Newton also described you as resilient, determined and resourceful, which are qualities that should serve you well if you apply them to your recovery.

83 You have been in custody since 3 December 2020. Much of your time on remand has been spent in harsher than usual prison conditions. The COVID-19 pandemic has imposed a number of restrictions on all prisoners, including a reduction in the availability of training and educational programs, and cancellation of contact visits with family and friends. The lack of contact with your disabled son has been particularly difficult for you.

84 In addition to COVID-related hardship that has applied to all prisoners, you have spent your time in custody either in management or protection units. It is not disputed that, because your offending resulted in the death of a baby, you are likely to remain in protection for the foreseeable future. Being in protection generally places limits on the availability of some education and employment options, and on movements within the prison. However, a large proportion of the prison population is in some form of protection at any given time, and there is no evidence in this case of the particular limits that have been, or are likely, to apply in your case.

85 I have already discussed your genuine remorse and the circumstances in which you offered and eventually pleaded guilty to the current offences. I treat this as a plea at the earliest opportunity.

86 You are entitled to a discount on the sentence to be imposed upon you, in recognition of your guilty plea and its utilitarian value. The utilitarian value of the plea is particularly high during the pandemic, when jury trials have been suspended and then delayed. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses and family members have been spared what would have been an extremely traumatic trial for all concerned.

87 One of the many matters to which a court is required to have regard in any sentencing exercise is current sentencing practices for that offence. Comparing the circumstances of different offending can seem insensitive to family members and the broader community; unfortunately, it is a necessary part of the sentencing process.

88 The offence of arson causing death is a relatively rare offence. There have only been four previous offenders sentenced for this offence in Victoria. The similarities and differences between those decisions and the current case were discussed in the course of submissions, and it is not necessary to repeat the details of the cases here. I have had regard to them.

89 Apart from the paucity of comparable cases, the High Court has made it clear that current sentencing practices are not determinative; they are no more or less important than any of the other factors which the sentencing court is required to consider.[6]

90 Upon your conviction on the first charge of arson causing death, you become a "serious arson offender" under s 6B(1) of the Sentencing Act 1991. That means that, when determining the length of your sentence on charges 2 and 3, the court must regard the protection of the community as the principal purpose for which the sentence is imposed. In order to achieve that purpose, the court may impose a sentence longer than that which is proportionate to the gravity of the offences considered in the light of their objective circumstances; however, in this case, the prosecution has not sought a disproportionate sentence. Each sentence is also to be served cumulatively, unless I direct otherwise.[7] However, principles of totality and proportionality also apply, notwithstanding your serious offender status.

91 Every case is different and needs to be decided on its own facts, having regard to the particular circumstances of the offence and the offender. It is common for cases to involve a mixture of aggravating and mitigating factors, which pull the sentencing court in opposite directions; this case is no different in that regard.

92 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of arson causing the death of Inderpal Singh (charge 1), I sentence you to 7 years' imprisonment. I treat that as the base sentence.

93 For the offence of arson causing the death of Abigail Forrest (charge 2), I sentence you to 7 years' imprisonment.

94 For the offence of arson causing the death of Ivy Kaur Forrest-Sohal (charge 3), I sentence you to 7 years' imprisonment.

95 Although these offences were committed as part of one act, there should be some cumulation to reflect the loss of each individual life, and the provisions of s 6E of the Sentencing Act. I order that 3 years of the sentences for each of charges 2 and 3 be served cumulatively on the base sentence.

96 That makes a total effective sentence of 13 years' imprisonment. I fix a period of 8 years as the period you must serve before you become eligible for parole.

97 Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 17 years, with a non-parole period of 12 years.

98 I declare that the period to be reckoned as already served under this sentence is 709 days, not including today's date. I direct that there be noted in the records of the court the fact that such a declaration was made and its details.

99 I direct that the fact you have been sentenced as a serious offender for charges 2 and 3 is also to be noted in the records of the court.

[1] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[2] DPP v Herrmann [2021] VSCA 160 ("Herrmann"), especially at [40].

[3] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269.

[6] DPP v Dagleish [2017] HCA 41; (2017) 262 CLR 428.

[7] Sentencing Act 1991, s 6E.