[2017] ACTSC 390

See [38] to [46] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - arson - damage property - fitness to plead issue - offender found fit to plead - unclear description of offender's disabilities - clear mild intellectual disability and various behavioural difficulties - application of Verdins principles - reliance on support of EveryMan Australia in determining sentence.

R v Verdins [2007] VSCA 102; 16 VR 269

1. Daniel Andison has pleaded guilty to two offences, as follows:

(a) arson, specifically, intentionally or recklessly damaging a building by fire; that offence arises under s 404(1) of the Criminal Code 2002 (ACT) and carries a maximum penalty including imprisonment for 15 years; and

(b) secondly, intentionally or recklessly damaging property belonging to someone else, specifically to the ACT Department of Housing and Community Services; that offence arises under s 403(1) of the Criminal Code and carries a maximum penalty including imprisonment for 10 years.

2. These charges arose from an incident on 16 November 2016, in which Mr Andison set two fires in the apartment to which he had been moved the previous day (one of eight in the apartment building). Mr Andison had set fire to the mattress in the bedroom, which had burnt down to the inner springs and appears to have produced a large amount of smoke, causing smoke damage throughout the unit. He had also started a fire on the window ledge above the kitchen sink, which damaged blinds hanging immediately above it, but then burnt out without causing other obvious damage.

3. Mr Andison has a mental disability. It seems that he was unhappy about being moved to the apartment concerned - it is not clear whether he had been unable to express his unhappiness in other ways or whether his complaints had been ignored. Mr Andison was interviewed by police in the presence of his father who is also his guardian. He told police that he had been angry about being moved to the unit and that was why he had set the fires. He said that usually when he is angry he goes for a walk.

4. Mr Andison was arrested on the night of the fire, and remanded in custody. He was granted bail on 24 April 2017, but was not able to be released until 4 May 2017, when accommodation that had been arranged for him was ready for occupation. He had, by that point, spent 169 days in custody.

5. At the committal hearing in the Magistrates Court on 11 April 2017, Mr Andison's fitness to plead was raised. The matter was committed to the Supreme Court with the question of fitness to plead reserved. A fitness to plead assessment was ordered, but Mr Andison declined to speak to the psychiatrist concerned, and she accordingly provided a report based almost entirely on a review of previous more general reports about Mr Andison.

6. After explaining to Mr Andison and his father that there was no particular advantage to an accused in being found unfit to plead, and that it was in Mr Andison's interests to cooperate with the psychiatrist, I ordered a further fitness to plead assessment. That assessment, to the effect that Mr Andison was fit to plead, was provided in October 2017 after Mr Andison cooperated in being interviewed, and on 31 October I made a finding accordingly. Mr Andison's counsel then indicated that Mr Andison would enter pleas of guilty, and I listed the matter for a sentencing hearing.

7. On 12 December 2017, Mr Andison was arraigned on an indictment dated 2 November 2017, and pleaded guilty to both charges. Given that Mr Andison's pleas of guilty were indicated as soon as possible after the fitness to plead matter was resolved, I shall treat these as early pleas of guilty and provide an appropriate sentencing discount.

8. As well as the statement of facts, the following material is in evidence before me:

(a) a pre-sentence report;

(b) the recording and transcript of Mr Andison's interview with police on the night of the offences; and

(c) the various medical reports and assessments initially provided to me for the purpose of the fitness to plead assessment;

(a) the final fitness to plead assessment provided by Dr Bree Wyeth dated 14 October 2017, as well as an earlier assessment dated 24 February 2017; and

(b) two letters from EveryMan Australia (formerly the Canberra Men's Centre), about the services they provide to Mr Andison, and about his behaviour since being released on bail in May this year.

10. In considering the objective seriousness of the offence, I have had regard to the following matters.

11. Arson is generally a serious offence, if only because of the capacity of a fire to escape the control of the person who started it and to cause damage far exceeding anything that might have been intended.

12. In this case, Mr Andison's action in setting fires in his own apartment is aggravated by the fact that it was one of eight apartments in the building, and accordingly his actions put at immediate risk the occupants of seven other apartments, as well as firefighters and other people who might have become involved in dealing with the fire.

13. There is no suggestion that Mr Andison's action in setting the fires was premeditated in any serious way, especially given that it occurred only the day after he had been moved into the apartment concerned.

14. Mr Andison told the pre-sentence report author that he had set the fires because he did not like the new apartment that had been assigned to him, but said that he did not want to hurt anyone. The pre-sentence report author was not sure whether Mr Andison understood the full import of his actions.

15. I understand that Mr Andison did not cope particularly well with his nearly six months in the Alexander Maconochie Centre (AMC), and has no wish to return there, but it is not clear to me either that he has a solid understanding of the connection between his offending and his time in the AMC, or, perhaps more significantly, of a connection between future offending and the risk of returning to the AMC.

16. There is no information before me about the damage caused to the apartment, or the value of that damage, beyond what I mentioned in describing the incident.

17. The arson offence is in my view somewhere below mid-range seriousness, while the property damage offence is of low-range seriousness.

18. I have also had regard in this sentencing to Mr Andison's subjective circumstances.

19. Mr Andison is now 28 years old. He has no criminal history.

20. He is the only child born to his parents' relationship. His parents separated when Mr Andison was two years old, and initially maintained shared custody of him. When Mr Andison was 16 his mother reduced her involvement with him, and it seems that she ceased all contact when he turned 21. His father, on the other hand, has continued to provide a close and supportive relationship for Mr Andison.

21. Mr Andison is single and has no former partners or dependents. Apart from his father, his social network consists mainly of support workers who help him with daily life, although there is one friend from high school with whom he is in regular phone contact.

22. Mr Andison completed Grade 12 through alternative schooling and has participated in supported employment including garden maintenance and landscaping work. EveryMan Australia is currently looking for other employment opportunities for him.

23. Mr Andison has no history of problematic use of alcohol or other drugs.

24. Mr Andison's mental condition is the key to this sentencing exercise, although it must be said that the nature of that condition is not clear.

25. He was assessed on numerous occasions (at least 16 times by my count) between 2004 and 2011, and then again in 2016 for a medication review. In February 2017, Dr Wyeth attempted to speak to Mr Andison about fitness to plead but, as noted, he refused to cooperate at that stage.

26. In 2004, when Mr Andison was 15 years old, psychologist Helen Baker identified him as having a Pervasive Developmental Disorder as described in the DSM IV, specifying Moderate Autistic Disorder and Moderate Intellectual Disorder. That diagnosis has been challenged in subsequent reports by psychiatrists who suggested possible alternative diagnoses of mild to moderate intellectual disability, childhood anxiety, tic disorder, Tourette's Syndrome and Reactive Attachment Disorder of Infancy. Over time the various doctors seem to have abandoned the attempt to put a name to Mr Andison's condition, and the focus is more on addressing his immediate symptoms and difficulties. It seems clear, however, that Mr Andison suffers at least a mild intellectual disability and has a variety of behavioural difficulties.

Relevance of impaired mental functioning in sentencing

27. I have had regard to the Victorian Court of Appeal decision of R v Verdins [2007] VSCA 102; 16 VR 269, which identifies six ways in which impaired mental functioning may be relevant in sentencing, as follows:

(1) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

(2) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

(3) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

(4) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of the sentence or both.

(5) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(6) Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

28. By reference to those considerations and to the evidence before me, I am satisfied:

(a) that Mr Andison's moral culpability for the offences he has committed is reduced by his disability, which seems to have had a clear causal link to his offending;

(b) that general deterrence is appropriately moderated having regard to Mr Andison's disability; and

(c) that specific deterrence, while important in terms of protecting the community, would not justify a relatively severe sentence, if only because it is as already noted not clear whether Mr Andison has the intellectual capacity to make the connection between his past conduct, the punishment imposed, and the likely consequences of any future conduct of a similar sort.

29. As already mentioned, Mr Andison did not enjoy his time in the AMC, although I should say at this point that his counsel noted that special arrangements were made for him by the prison authorities. Despite his wish not to return to the AMC, I am not convinced that this means that further custodial time would weigh more heavily on Mr Andison than on other inmates, especially given the extent to which his activities in the community are also circumscribed, albeit by his disabilities.

30. On the other hand, I note that Mr Andison's offending behaviour, while potentially very dangerous if repeated, appears capable of being managed within the community as long as adequate support for day-to-day living continues to be available to Mr Andison, and it does not seem to require any further period of custody in order to protect the community.

31. Mr Andison has no particular rehabilitation needs, given that his condition is not susceptible to any particular treatment. He does, however, require ongoing support to maintain acceptable behaviour in the community.

32. The first letter from EveryMan Australia reported that that organisation had been working with Mr Andison's father and a psychologist to develop an approach to helping Mr Andison cope within the community, while managing, in particular, the risk of further fires.

33. EveryMan Australia, in that letter, described its mission as follows:

EveryMan operates the Men's Accommodation and Support Service (MASS) of which Daniel is a current client. The purpose of the service is to alleviate the problems of chronic homelessness by providing supported accommodation for single men with high and complex needs, unaccompanied by children, including those who are leaving custody or are involved in the criminal justice system.

Objectives of the program are to ensure that men:

• gain improved safety and health outcomes
• develop opportunities to increase knowledge, skills and confidence to manage future crises
• increase their awareness of, and capacity to access, ongoing education, community resources and support networks.
• are better able to sustain a stable tenancy
• develop enduring skills to access appropriate mainstream and specialist services.

34. The most recent letter from EveryMan Australia reports as follows:

Daniel has engaged well with the EveryMan MASS program since his release from the AMC in May, 2017.

EveryMan have coordinated supports and have successfully collaborated with the Disability Support Trust to deliver monitoring and support services to Daniel. Despite the afterhours supports through Disability Trust being reduced to an average of four hours a day due to NDIS funding constraints, Dan has shown a significant reduction in problematic behaviours resulting in incidents of structural property damage, such as broken windows, to once every 2-3 months. This is down from an almost weekly occurrence upon his release.

These have been reduced through the identification of triggers and appropriate responses being coordinated between EveryMan and The Disability Trust.

EveryMan supports Dan directly during the weekdays and assists him with attending his fortnightly Depot injections as well as responding to any issues that arise between the 4 hour support worker shifts. Dan now appears to seek assistance from EveryMan and the Disability Trust staff as a first response to stressors and this has likely contributed to the reduction in behaviours.

During Dan's support, there have been zero incidents of fire lighting behaviours.

EveryMan plans to support Dan for the foreseeable future, with the current long-term plan aiming to have EveryMan oversee and assist in a full handover of Dan into 24/7 supported accommodation with the Disability trust.

Our current goal is to have the funding for this approved by the NDIS.

35. I have placed considerable reliance on the support of EveryMan Australia in determining this sentence.

37. Mr Andison Senior, do you want to come and stand with him? I'll try and explain bits of this, but if you think it would be helpful, you're welcome to stand there.

38. I record convictions on one charge each of arson and damage property.

39. Now, Mr Andison, I'm about to sentence you to imprisonment, but that doesn't mean that you're going back to prison, okay?

41. HER HONOUR: So, I now sentence you to imprisonment for the arson, for 15 months, reduced from 20 months for your plea of guilty, and for the damage property offence, for 4 months, reduced from 4 months. The sentences will be served concurrently.

42. That gives a total sentence of 15 months, being the 15 months of the arson sentence. That will be backdated to 26 June 2017, to take account of 169 days of pre-sentence custody, and that's the time that you've already spent in prison ...

44. HER HONOUR: ... and so the arson sentence will run until 25 September next year. The damage property offence will run from 26 June 2017 until 25 October 2017, so the damage property sentence is finished, and you've only got the arson sentence left now.

45. The arson sentence, what's left of it, will be immediately suspended, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months.

46. The good behaviour order is subject to the conditions:

(a) that for such a period not exceeding 12 months, as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or her delegate - so that would be the Corrective Services supervisor - or another organisation to whom ACT Corrective Services might transfer your supervision;

(b) that you engage with EveryMan Australia and comply with all reasonable directions of your EveryMan Australia case workers; and

(c) that on or before close of business Friday 15 December 2017, you attend Corrective Services at 249 London Circuit to arrange your supervision.

47. Now, that's very legal language, Daniel. What it means is, you've got a 12month good behaviour order, so you have to sign up to behaving yourself for 12 months.

49. HER HONOUR: Now, you will have a supervision agreement with the Corrective Services people, they are the people whom you talked to for your pre-sentence report. But what I expect they will do is, that they will tell you that you are to deal with EveryMan Australia and to work with your case workers from there. Does that make sense?

51. HER HONOUR: And so then, the next condition is that you have to do what your case workers tell you, your EveryMan Australia case workers.

53. HER HONOUR: Then the final one, and I think this is really for your father to organise, is that before the end of Friday, so tomorrow or Thursday or Friday before 4 o'clock, you need to go to Corrective Services at 249 London Circuit just to arrange the supervision, the contact and ideally the transfer to EveryMan Australia. So you have got to go and see them, Mr Andison, at Corrective Services but they, I think, and your father will be able to sort out the paperwork.

54. Now, the other thing I need to tell you about the good behaviour is that you will get a written copy of it and your dad, as your guardian, will get a written copy of it. I think the court officials will read it to you but what it means is this: I sentenced you to 15 months in prison for lighting that fire, and that was because I think you knew you should not have lit that fire and it was a very dangerous thing to do. It could have killed you. It could have killed other people. It could have done a lot of damage.

55. Now, you have already been in prison for nearly 6 months, and I do not think you need to go back to prison, but that means there is a bit more than 9 months of that sentence that you have not finished. Now, the way you can finish that 9 months is by behaving yourself for 12 months, for another year. So if you behave yourself for 12 months and keep out of trouble, then this whole matter is finished. I hope after that you will still be engaged with EveryMan Australia because they seem to be very helpful for you, but at the end of 12 months, if you stay out of trouble, then this is all finished and I hope you will not find yourself in a position where you feel frustrated in that same way again.

58. HER HONOUR: Is there anything you want to ask, Mr Andison Senior?

60. HER HONOUR: All right. You can both sit down then.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.