R v DM (No 2) [2016] ACTSC 385 (14 December 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2016] ACTSC 385

See [49] to [59] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offender found guilty of one count each of arson, attempting to dishonestly obtain property by deception and dishonestly obtaining property by deception - evidence of premeditation - no relevant criminal history - offender afflicted by significant physical and mental health issues - history of childhood abuse, violence and other traumas - no expression of remorse - whether appropriate to make a reparation order noting offender's financial difficulties - sentence of imprisonment to be served by intensive correction order.

Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 19

Legal Aid ACT (Offender)

1. DM has been found guilty of three offences, as follows:

(a) arson, contrary to s 404(1) of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 15 years;

(b) attempt to dishonestly obtain property by deception, contrary to s 326 of the Criminal Code in conjunction with s 44 of the Criminal Code, and carrying a maximum penalty including imprisonment for 10 years; and

(c) dishonestly obtaining property by deception, contrary to s 326 of the Criminal Code, also carrying a maximum penalty including imprisonment for 10 years.

**2. The events from which these charges arose began on 16 July 2012, when DM deliberately set fire to the property in which she had been living. She then made an insurance claim in relation to the damage resulting from that fire, and a couple of days later received an emergency payment pursuant to that claim.

3. At the time of the incident DM, who was divorced, was renting an ACT Housing property in Kambah, where she lived with her two young daughters. Her adult son also stayed with her occasionally.

4. During the period before the incident, DM's financial position had been precarious; she was substantially in arrears in relation to utility bills, rent owed on various electronic goods, and other household expenses. Her only sources of income were a parenting benefit that she received from Centrelink, child support payments from her ex-husband, and very occasional casual work, which she found difficult to accept because she was at that time disqualified from driving. In the period leading up to the fire, her bank accounts were regularly in debit.

5. In 2011, DM had insured the contents of the Kambah house with Budget Direct Insurance. At the time of the fire the contents were insured for an amount of $51,500.

6. Over at least some months before the fire, DM had also had difficulties with ACT Housing, and her property was due to be inspected the day after the fire.

7. In the weeks immediately before the fire, DM took a number of steps suggesting premeditation and planning. She removed various items of personal, spiritual or sentimental value from her house, and stored them in a partly-enclosed shed at the rear of the property. On the day of the fire, she had left dry laundry in a basket near the clothesline, and curtains that she had made had been hung on the clothesline.

8. On the weekend before the fire, she bought at least three (and possibly five) bottles of methylated spirits from nearby supermarkets.

9. On the day of the fire, DM had planned to catch the bus to Woden with her daughters around midday. In the trial I found that, before leaving the house, she had lit fires in the lounge room and near the front door, using methylated spirits and possibly other accelerants. She and her daughters then left the house and walked to a nearby bus stop. On the way, the older daughter saw things suggesting there was a fire at the house but, although she told her mother, DM continued with the trip to Woden.

10. As a result of the fire, the Kambah property sustained extensive damage and was determined to be uninhabitable.

11. Later on the day of the fire, DM made an insurance claim under her contents insurance policy that relied on the damage sustained in the fire. This constituted the offence of attempting to obtain property by deception.

12. During DM's telephone call to her insurer she was offered an emergency payment of $2,000 to help her with immediate expenses arising from the fire, and two days after that she received the $2,000 payment. This was the offence of obtaining property by deception.

13. Although suspicion fell upon DM soon after the fire, she was not charged until 21 November 2012. She has spent no time in custody in relation to these offences.

14. DM pleaded not guilty in the Magistrates Court and was committed to this court for trial. The trial was set down before me for 11 March 2014, and eventually occupied 12 hearing days. I reserved my decision on 22 August 2014, and on July 2016 I found DM guilty of each of the three offences.**

15. Apart from the evidence I heard in the trial, the following material is in evidence before me:

(a) a pre-sentence report;

(b) DM's criminal history;

(c) a reparation schedule seeking compensation of $175,600 payable to ACT Housing;

(d) a further reparation schedule seeking payment of $2,000 to A&G Insurance Pty Ltd trading as Budget Direct; and

(e) an intensive correction order assessment

(a) a psychological report dated 25 September 2016 from Dr Danielle Clout; and

(b) a letter of support dated 4 October 2016 from Louise Pilon, counsellor at Canberra Rape Crisis Centre.

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

18. Arson is always a serious matter, especially because of the capacity of a fire to escape the control of the person who has started it and to cause damage far exceeding anything contemplated by the arsonist.

19. Fortunately, in this case, although serious damage was caused to a house that was part of the housing stock managed by ACT Housing to provide housing to disadvantaged members of our community, no-one was hurt in the fire, although I do not overlook the sad but, I accept, unintended death of the family dog in the fire.

20. As noted, the value of the damage done to the house has been quantified by ACT Housing at $175,600. This is a serious loss to an organisation that is funded by the community to provide housing to those who cannot obtain housing in the private market.

21. I have already mentioned that the fire appeared to involve premeditation and planning, and at trial I found that DM's motive, at least in part, was financial gain, while allowing that she might also have been looking for a way out of her difficulties with ACT Housing.

22. According to the pre-sentence report, DM continues to deny the commission of these offences, and accordingly has not demonstrated any remorse.

23. I consider that the arson offence was of at least mid-range seriousness, while the deception offences, especially the offence arising from DM's receipt of the $2,000 emergency payment, are somewhat less serious in the general context of deception offences.**

**24. I have also had regard in this sentencing to DM's subjective circumstances.

25. DM is 45 years old, and at the time of the offences she was aged 40. She has no relevant criminal history and is entitled to be sentenced as a person of good character.

26. She is the eldest of four children, and was exposed to domestic violence and physical abuse from a young age. She disclosed to Dr Clout, who provided the psychological report, that she was sexually abused for around two years during her childhood. She left school and her home at age 16, and appears to have lived a transient life for some time before marrying at age 18 and later settling in the ACT when she was 24.

27. She reported being isolated from her immediate family for much of her life, but the pre-sentence report author noted that she has reconnected with her mother and one of her brothers during the past 12 months, and that she currently enjoys their support.

28. Dr Clout's report included the following information:**

[DM] reported that she entered her first relationship at 17 years of age, and she and [her former husband] married just after her 18th birthday in 1989. She reported that despite an initial language barrier with [her former husband], she found comfort and a sense of belonging in the Islamic Community [of which her former husband was a member].

...

[In] 2000 she gave birth prematurely to twin boys, one who was stillborn, and the other who lived for approximately two weeks after birth. She described this time as incredibly traumatic, and said she has a lot of unresolved grief surrounding this.

**29. Dr Clout's report noted that DM and her husband were divorced in 1992 and later reconciled, but the relationship with her husband finally broke down in 2004 after he married again in 2001 and had a child with his new wife. DM's younger daughter was born around the time that she and her former husband separated for the last time.

30. DM's two daughters are now aged 18 and 12, and her son is 24. Her 18-year-old daughter lives with her, but her younger daughter is currently subject to a care and protection order and is living in foster care.

31. Dr Clout noted a number of traumatic events in DM's life as well as the matters already mentioned, including a suicide attempt at the age of 15 after her younger brother had been accidentally burnt while in her care, leading to the involvement of child protection authorities, and recent complaints by both of her daughters that they had been sexually abused by DM's former husband.

32. DM's physical health is also compromised. She was diagnosed with Type II Diabetes in 2010, and in 2015 she was hospitalised for several months after developing complications from influenza. That illness has left her with ongoing nerve pain, difficulties with her vision, problems with digestion and swallowing, and heart problems.

33. Dr Clout observed, in relation to DM's mental health, that she has symptoms of depression, including pervasive feelings of sadness, loss of pleasure from activities, poor motivation, low self-esteem and self-worth, and suicidal thoughts. DM has also reported frequent panic attacks since her hospitalisation in 2015, which have made her increasingly reluctant to leave the house. The panic attacks and anxiety around leaving the house are now also complicated by her visual disturbances which, among other things, prevent her driving, and cause difficulty in navigating crowded areas such as shopping centres.

34. DM also told Dr Clout that her daughters' complaints of sexual abuse have "opened up a can of worms" and for the past six months she has experienced flashbacks and intrusive thoughts related to her own abuse, difficulty concentrating, avoidance of trauma-related cues and memories, difficulty recalling aspects of the trauma, hypervigilance, and an exaggerated startle response.

35. Dr Clout reported her opinion that DM satisfies the diagnostic criteria for Post-Traumatic Stress Disorder with delayed expression, Major Depressive Disorder (recurrent) and Panic Disorder.

36. I note also the letter from Ms Pilon at the Canberra Rape Crisis Centre, which relates to DM's current psychological state and her struggle, since approaching the Canberra Rape Crisis Centre in February this year, to "process" her own childhood and subsequent traumas involving violence in her family of origin and in her marriage.**

**37. It has not been asserted that DM's offences can be attributed to her mental health problems, and nor is there any other obvious kind of rehabilitation indicated by her offending. In particular, neither alcohol nor illicit drugs appear to be an issue for her. On the other hand, it is highly desirable that DM receive some help with her mental health and associated problems.

[DM]'s current presentation, the dating of her symptoms back to her adolescence, and her extensive history of physical and sexual abuse, present a complex clinical picture. The lack of adequate and appropriate treatment [DM] has received to date, has likely exacerbated her mental health issues. It is my opinion that [DM] would benefit from intensive and ongoing individual psychological treatment to assist her to reduce her current symptomatology, gain more adaptive coping strategies, and to process some of the trauma she has experienced throughout her life.

As [DM] also presents with very few protective factors, including a lack of positive influences and supports in her life, treatment would also need to focus on rebuilding DM's social support network. As finances are likely to be an issue, a referral to Community Mental Health or a bulk billing service may be appropriate, and she may also benefit from access to a psychiatrist through the community mental health service to review her medication. Due to the complexity of [DM]'s clinical picture, treatment is likely to be long-term, with many setbacks.

39. The letter from Ms Pilon of the Rape Crisis Centre also describes DM's need for help to deal with her various long-standing and more recent stresses.

**40. As noted, DM's younger daughter, who is now 12, is currently living in a foster home under a care and protection order. However, I understand that this a temporary order possibly pending resolution of this sentencing process, after which the child may be returned to DM if she is able to provide a home for her.

41. General deterrence is clearly a relevant factor in relation to arson offences, many of which involve premeditation and careful planning. Deception offences also tend to be fairly calculated offences, and accordingly may be susceptible to deterrence.

42. It seems likely that DM is not in need of anything substantial in the way of personal deterrence despite, as noted, her failure to show remorse for these offences, as distinct from needing help to avoid getting herself into the kinds of financial and other difficulties which seem to have precipitated these offences.**

Given the severity and persistent nature of her symptoms, and her limited coping strategies, a period of full-time imprisonment is likely to have a negative impact on [DM]'s mental health, and increase the risk of her symptoms worsening. Consequently, if she were to receive a custodial sentence, it would be my recommendation that she be assessed by the forensic mental health service on entry.

44. Ms Pilon, in the letter from the Canberra Rape Crisis Centre, expressed her feeling:

that a custodial sentence would further traumatise [DM], hinder her capacity to heal and result in a further deterioration of her mental and physical health.

**45. The prosecutor may be right in saying that this is untested lay opinion, and I accept that the opinion carries little weight, but it is consistent with Dr Clout's view, and in the context of a sentencing hearing, I see no need to exclude that opinion.

46. As noted, the Crown seeks two reparation orders, one for $175,600 in favour of ACT Housing and one for $2,000 to A&G Insurance Pty Ltd trading as Budget Direct.

47. I am not inclined to order reparation of the sum of $175,600 in respect of the damage to the house, because DM clearly has no prospect of repaying that amount; all such an order would do is to deprive her of any incentive to make an honest attempt at improving her financial position, such as by looking for suitable employment, although I recognise that that may be difficult now, given her current health position. I have seriously considered the prosecution's alternative submission that, in effect, a token reparation order could be made in favour of ACT Housing but, given the advice I've received about DM's capacity to pay by instalments, it does not seem to me that even a token order would overall be a sensible move. On the other hand, I can see the value of making a reparation order in respect of the $2,000 payment, given that it is not an impossible sum to be repaid over time, although it will take DM a long time, and given that DM actually had the benefit of the original $2,000.**

49. I record convictions on one count each of arson, attempting to dishonestly obtain property by deception, and dishonestly obtaining property by deception.

50. Under s 19 of the Crimes (Sentencing) Act 2005 (ACT), I order that you pay $2,000 to A&G Insurance Pty Ltd, trading as Budget Direct, by fortnightly instalments of $10 per week starting on 16 January 2017. That, by my rough calculations, is going to take the best part of seven or eight years. Your solicitor will explain to you that those payments, that $10 per fortnight needs to be made into court, not directly to the insurance company, and I think it would be possible for you to set up a direct debit from your Centrelink payments into the court.

51. I now sentence you to imprisonment for 3 years for the arson offence, 15 months for the attempted deception offence and 12 months for the deception offence.

52. The first sentence is to commence today, 14 December 2016, the second one on 14 December 2018 so as to extend the total sentence by three months, and the third one on 14 May 2019 so as to further extend the total sentence by two months, giving a total sentence of three years and five months from 14 December 2016 to 13 May 2020.

53. Since I propose to order you to serve this sentence by an intensive correction order, I note for the purpose of s 11(3) of the Crimes (Sentencing) Act, that I consider such an order to be appropriate, having regard to:**

(a) the nature of the offences concerned, specifically in this context to the fact that there was no individual victim of these offences and that you seem unlikely to pose a risk to anyone in the community at this stage; and

(b) to your level of culpability for the offences, which must be assessed against the background of the significant challenges you have been facing in so many areas of your life.

**54. Accordingly, I now order that the sentence be served by way of an intensive correction order.

55. The intensive correction order is subject to the standard core conditions for intensive correction orders. I note the advice from the assessor that your physical and mental health, your financial problems, and your attitudes to offending will be particularly targeted under the implementation of the order.

56. You will be given a written copy of the intensive corrections order, and it will be read to you by the court officials, but I mention the core conditions just briefly at this stage. They are that:**

(a) you do not commit any offence punishable by imprisonment during the term of this order;

(b) you tell your supervisor within two days if you are charged with any such offence;

(c) you tell your supervisor if your contact details change;

(d) you comply with all your supervisor's directions;

(e) you abstain from alcohol and illicit drugs; and

(f) you don't leave the ACT without getting approval from your supervisor.

57. I am going to add as conditions of your intensive corrections order that:

(a) you continue to engage with appropriate medical services and counselling services;

(b) you engage in interventions as directed by your supervisor to assist in obtaining job qualifications, or applying for the National Disability Insurance Scheme via Centrelink; and

(c) finally, that if directed by your supervisor, you engage in the Community Corrections Readiness program.

**58. Now, I will also add a condition that before the close of business today, and you should assume that that will be 4 o'clock at the latest, you attend Corrective Services at 249 London Circuit to arrange your supervision.

59. I also order that Dr Clout's report be provided to Corrective Services.

60. Now, I need to try to explain what the significance of this order is to you. I assume that your assessor has already explained to you how it should work, and you might also have talked to Mr Stewart or Mr de Bruin about it, but I also need to say a few important things to you.

61. As I have said, the sentence that I have imposed of three years and five months will start today and will run for that three years and five months.

62. If you comply with all your intensive correction order requirements, do as your supervisor tells you, complete any programs that your supervisor directs, and generally keep out of trouble, then at the end of that three years and five months, you will have finished your sentence without any time in custody.

63. On the other hand, if during that period you commit another offence that has a prison sentence attached to it, and that's an offence that carries a maximum term of a prison sentence, not necessarily an offence that results in you being sentenced to imprisonment, but if it's an offence that possibly has a prison term, you will have to come back here and I will have to re-sentence you. The expectation under the legislation seems to be that at that point, if you came back here having committed another offence carrying a prison term, that you would be required to serve out the rest of the term that I've imposed in full-time custody.

64. That is not an absolute guarantee, but you should assume that that is what would happen if you commit another offence with an imprisonment penalty in the next three years and five months.

65. Apart from committing offences, if you breach the intensive correction order or don't comply with the directions of your supervisor, then there are various things that your supervisor or Corrective Services can do in dealing with that, starting with giving you warnings (and I understand you can't get more than three warnings in a year) and moving up to putting you into prison for short periods, either three days or seven days at a time, to remind you that this intensive corrections order is serious.

66. Finally, if your supervisor or the intensive correction authorities are completely dissatisfied with your behaviour and with your compliance with the order, then the order may be cancelled and you would then find yourself serving the rest of the sentence in full-time custody, so from that date until the end of the date that's already been specified in full-time custody, as I said, without ever coming back to the court. It wouldn't be a discretionary matter for the court, it would be entirely up to Corrective Services.

67. So agreeing to this intensive correction order, DM, is a bit of a gamble. It's always a bit of a gamble for people. At this stage though, I can't see any reason why you should not be able to comply with the intensive correction order obligations and why you shouldn't succeed in serving your whole sentence in the community, as long as you accept the help that will be offered to you under the order. But you do need to make sure that you take this intensive correction order seriously because, as I've said, if you don't take it seriously, you are at risk of serving possibly quite a lot of your sentence in full-time custody.

68. Now, if you have any particular questions about the order, either as a result of what I've just said or as a result of other things that have occurred to you, please ask the court officials when you sign the sentencing documents, or perhaps Mr Stewart or Mr de Bruin in the short term.

69. I would recommend to you, DM, that you take full advantage of the relatively intensive supervision that will be offered to you under this order and, in particular, that as well as complying with your supervisor's directions, you do seek specific help from your supervisor if at any point you feel that your life is getting out of control or that your problems are overwhelming you. If you ask early, you might get the help you need to deal with those problems, but if you don't ask until things have gone badly wrong, then you may be caught up in the fairly strict intensive correction order arrangements and find yourself in prison for a short time or even a fairly long time.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.