R v Pahl

Sentenced to two years and 11 months' imprisonment suspended on 7 September 2017 upon the offender entering into a good behaviour order for two years and eight months.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Property offences - Recklessly cause damage to property - Burglary - Moral culpability of offender who offended while experiencing alcohol induced psychosis - Psychotic episode caused by voluntary consumption of alcohol - Whether sentence of imprisonment should be fully suspended - Claim for reparation order in favour of insurer

Crimes (Sentencing) Act 2005 (ACT) ss 7, 11(3), 12, 19, 33, 35A

R v CA (No 2) [2016] ACTSC 371; 316 FLR 49

R v Gibson [2016] VSC 634

R v Halls [2008] NSWCCA 251

R v Martin [2007] VSCA 291; 20 VR 14

SCC 279 of 2015; SCC 280 of 2015

1. In March 2017, I tried the offender without a jury. On 31 March 2017, I found him guilty of the offences that he:

(a) Count 1: Entered or remained in a building, 14-16 Brindabella Circuit, Canberra Airport, as a trespasser with intent to commit an offence in the building that was punishable by five years' imprisonment or longer contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code).

(b) Count 2: Recklessly caused damage to property belonging to Canberra Airport Group Pty Ltd (extensive damage within the building) contrary to s 403(1) of the Criminal Code.

(c) Count 3: Recklessly caused damage to property belonging to Canberra Airport Group Pty Ltd (a ticket machine) contrary to s 403(1) of the Criminal Code.

(d) Count 4: Recklessly caused damage to property belonging to Transfield Services (Australia) Pty Ltd (a Toyota HiLux utility vehicle) contrary to s 403 (1) of the Criminal Code.

2. The offences occurred in the course of the same incident on 10 February 2015.

3. The maximum penalty for an offence against s 311 of the Criminal Code is 14 years' imprisonment, 1400 penalty units or both.

4. The maximum penalty for an offence against s 403(1) of the Criminal Code is 10 years' imprisonment, 1000 penalty units or both.

5. The offender spent one day in custody in relation to these offences.

6. From the outset, the offender admitted the conduct and said that he had been in a delusional state at the time of the incident. The concessions made by the offender meant that, at the trial, it was not necessary to call any witnesses to the incident. The prosecution did not dispute that the offender had been in a delusional state at the time of the incident. The only issue was the aetiology of that delusional state and whether it gave rise to a defence of mental impairment. I found that it did not.

7. The facts of the offences are fully set out in my reasons of 31 March 2017.

8. In summary, in February 2015, the offender was under considerable work stress. On 10 February 2015, he drank a large quantity of alcohol. It caused an alcohol induced psychosis.

9. At 8:55 pm, while in a psychotic state, the offender drove his employer-provided utility vehicle to Canberra Airport, arriving at about 9:15 pm. As he drove the vehicle into an airport car park, it impacted with several objects, ultimately colliding with a ticket machine where it became wedged, causing substantial damage to both the vehicle and the ticket machine (Counts 3 and 4).

10. The offender exited the vehicle and broke into a nearby building at 14 - 16 Brindabella Circuit by using his arm to shatter a ground floor window (Count 1). Once inside the building, he activated four high flow fire hydrants, one on each level of the building, flooding all four floors of the building. The estimated cost of repairs to the interior of the building was $550 000 (Count 2).

11. When police arrived, they found the offender hiding under a workstation desk. He was heavily intoxicated and admitted activating the fire hydrants. He stated that he had been in a trancelike state and had believed that he was being chased by a group of four people of Asian origin. He had activated the fire hydrants to attract attention to his plight.

12. An analysis of the offender's blood revealed an alcohol concentration of not less than 0.154 g per 100 mls of blood at the time of the incident.

13. By the time that the offender was interviewed at 7:07 pm on the following day, 11 February 2015, he was sober and there was no suggestion of any abnormality in his thinking or behaviour.

14. I was satisfied that, at the time of the incident, the offender was experiencing a psychotic episode that had been triggered by the ingestion of alcohol. He had a history of alcohol induced psychotic episodes. I was satisfied that, because of the temporary psychosis that he was experiencing, the offender did not know that his conduct was morally wrong.

15. Considering the intent to commit a property damage offence but disregarding the actual damage that was caused (because it will be taken into account when sentencing on Count 2), this offence is of low to medium objective seriousness. The means of entry caused relatively little damage, the building was a commercial (not residential) building, and no one was present or would be expected to have been present because the offence occurred at night. The offence was not committed for personal gain and was not planned, even to the limited extent to which such offences are typically planned.

16. Pursuant to s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), it is relevant to take into account the degree of responsibility of the offender for the commission of the offence. Under sub-s (1)(p), it is relevant to consider whether the offender was affected by alcohol when the offence was committed and the circumstances in which he became affected.

17. As with the other offences, the fact that the burglary offence was the product of psychotic delusions diminishes the offender's moral culpability to a limited extent.

18. In relation to the moral culpability of an offender who offended when experiencing a substance induced psychosis, in R v Martin [2007] VSCA 291; 20 VR 14, the Court said that the question was whether and to what extent the offender foresaw the probable consequences of the drug taking. In that case, the appellate court agreed with the sentencing judge that moral culpability was not reduced by reason of psychosis because the appellant had known that he was likely to become psychotic when he consumed drugs. He had received repeated warnings about the risk of psychotic behaviour after drug consumption.

19. Depending on the particular circumstances, an offender's moral culpability may be affected or unaffected by the fact that, at the time of the offence, the offender was experiencing a psychotic episode caused by the voluntary consumption of alcohol or drugs: R v Gibson [2016] VSC 634 at [95] (Gibson). An important consideration is whether the offender knew the effect that substances were likely to have upon them. In Gibson, Croucher J was satisfied that, although there had been earlier episodes of drug related psychotic symptoms, the offender had no reason to think that drug taking would induce a psychosis of the nature and severity that occurred on the occasion of the offences.

20. In this case, based on prior experience, the offender knew that the consumption of alcohol was prone to induce the very sort of delusions that occurred on 10 February 2015. He had experienced similar episodes when he was about 29 years old and again in March 2013, two years before these offences. After each prior episode, the offender had acknowledged the impact of alcohol upon him and had been abstinent for a significant period. I note that the emotional provocation for the March 2013 episode (work stress), the delusional content and the resulting behaviour associated with that incident were similar to the provocation, content and behaviour associated with the February 2015 episode.

21. On the other hand, at the time of the March 2013 episode, the offender's behaviour was attributed to the combined effect of alcohol and medication. With the benefit of hindsight and in the context of the offence incident, it was appreciated that the March 2013 incident was due to alcohol alone.

22. It is important that, on the two previous occasions where the consumption of alcohol induced psychotic symptoms, the offender's behaviour was relatively confined and he did not cause significant property damage. Further, the offender's wife gave evidence that, during three decades that she has known him, on a number of occasions the offender has consumed alcohol without ill effect.

23. This is the most objectively serious offence because of the extent of the damage that was occasioned: s 33(1)(e) Sentencing Act; R v Halls [2008] NSWCCA 251 at [35]. In addition to the monetary damage, the offence must have caused considerable commercial inconvenience to the victim. Further, the offence is objectively serious because the offender discharged four hydrants, each on a different floor of the building, thereby engaging in a course of conduct rather than an isolated act of damage.

24. On the other hand, like the burglary offence, the offence was not planned in the usual sense in which that expression is used. Unlike many offences of reckless damage, it was not motivated by a desire for revenge or for the purpose of intimidating an acquaintance or domestic partner. Nor was it gratuitous as in the case of deliberate and perverse vandalism.

25. For the reasons stated above, the offender's moral culpability for the offence is somewhat diminished because the offence was the product of psychotic delusions.

Recklessly damage ticket machine and recklessly damage utility vehicle

26. Each of the offences of recklessly damage ticket machine and recklessly damage utility vehicle is of some objective seriousness. Although the value of the loss associated with the offences was not quantified, each caused significant loss. However, the losses were far less severe than that associated with Count 2.

27. Further, the offence of damaging the vehicle related to a vehicle belonging to the offender's employer and with which he had been entrusted; it can be characterised as involving a breach of trust.

28. As the offences resulted from the same behaviour there should be a high degree of concurrency between the sentences that are imposed. A small amount of accumulation is warranted to address the separate consequences of the behaviour.

29. The offender is 48 years old. He has no prior convictions. His prior good character is an important consideration.

30. The offender is the youngest of three children. He enjoyed a happy and supportive upbringing in South Africa, where he completed his secondary schooling.. He has a close relationship with his family.

31. The offender has been married for 27 years. He and his wife have three children and two grandchildren. The offender resides with his wife and two of the children. The youngest child has now completed Year 12. The offender's wife is in stable employment.

32. In late 2016, the offender's oldest child was severely injured in a motor vehicle accident. As a result, he has a serious physical disability and is still undergoing rehabilitation. He is residing with the offender and his wife, who are supporting him through rehabilitation. The accident was very stressful for the offender and his family. The offender responded well, providing significant emotional support to the whole family. The offender was also supportive when his daughter experienced serious medical trauma in 2016.

33. The offender and his family migrated to Australia in 2008 because of concerns about violence in South Africa. A number of members of the offender's extended family are in Australia. Together, they form a tight knit family group and provide considerable support to each other. The offender is an introvert with few friends. He socialises primarily with his immediate and extended family.

34. The offender has chronic problems with sleep apnoea and obesity. He has a damaged pituitary gland. He is receiving treatment for these conditions.

35. The offender has worked as an underwriter, insurance claims adjuster and manager with building maintenance and construction companies. Commencing in January 2015, he worked for Transfield as a project manager, overseeing regional operations extending from the NSW South Coast to Goulburn. As a result of the incident, his employment was terminated. Since then, the criminal proceedings and convictions have made it difficult to obtain and maintain stable employment. However, currently the offender enjoys good employment, which is not unduly stressful.

36. As a consequence of financial pressures associated with the offender's loss of employment, the family home was sold.

37. From an early age, the offender has suffered from anxiety and low self-esteem, often feeling nervous or stressed. At times, he has experienced panic attacks. He has been prone to experience stress at work, for example when required to terminate the employment of staff or meet deadlines. As noted above, at the time of the February 2015 incident, the offender was under considerable work pressure. He was working away from home and felt isolated and overwhelmed.

38. At 18 years of age, the offender was conscripted to the South African Army. While serving as an army conscript, he developed intense anxiety on night patrols as he feared guerrilla attack. Since that time, he has experienced nightmares about being chased. These fears were played out in the 2013 and 2015 psychotic episodes, when the offender believed that he was being chased and needed to escape.

39. In 1999, the offender reportedly attempted suicide by motor vehicle accident as a result of anxiety provoked by two home invasions and other violence in South Africa. As mentioned above, ultimately these concerns caused the family to migrate to Australia.

40. As an adolescent, the offender began to binge drink in order to cope with anxiety and feelings of social inadequacy. His drinking increased when he was in the army.

41. After each episode of alcohol induced psychotic symptoms, the offender ceased drinking for a period of time. As mentioned, the offender's wife gave evidence that, from time to time, he has drunk without adverse reaction. He experienced psychotic symptoms as a result of drinking in about 2002, in 2013 and on 10 February 2015 when the offences were committed. After the offences, he ceased consuming alcohol.

42. In October 2016, the offender was admitted to hospital because he was suicidal, having consumed a significant quantity of alcohol for the first time since the incident. He consumed approximately six beers. It is not clear whether the consumption of alcohol caused him to feel suicidal or he consumed alcohol because he felt suicidal. The offender was hospitalised for eight days. The hospital records note an impression of mixed anxiety and depressive disorder. The offender was not psychotic. His medication was changed and he improved quickly. His wife observed a sustained improvement on the revised medication regime.

43. The offender is monitored by a general practitioner and he sees a psychologist and community mental health counsellor from time to time. I refer to these matters because they are generally relevant and they are also relevant under s 33(1)(t) of the Sentencing Act.

44. Dr McMahon, a clinical psychologist with expertise in forensic neuropsychology, diagnosed the offender as suffering from post-traumatic stress disorder and mild neurocognitive disorder. As explained in my decision of 31 March 2017, I accept that the offender may suffer from post-traumatic stress disorder, but I do not accept that he suffers from a mild neurocognitive disorder; he has functioned at a high level within the community when not affected significantly by anxiety or other psychological conditions.

45. There was evidence from the offender's wife that, since the incident, the offender has felt shame, guilt and remorse, albeit that the remorse relates partly to the impact on his family. Such remorse is not relevant under s 33(1)(w) of the Sentencing Act. It refers to remorse for having injured victims. However, I accept that the offender has also demonstrated remorse in the relevant sense. He understands that his actions have had far reaching consequences for the victims.

46. The author of the pre-sentence and intensive corrections order assessment reports assessed the offender as at low to medium risk of general reoffending.

47. The offender recognises the impact of alcohol upon him and is receiving appropriate treatment for psychological issues. He is supported by his immediate and extended families.

48. I am required to have regard to relevant sentencing purposes in s 7 of the Sentencing Act. The parties did not address these matters in their submissions.

49. However, it is obvious that general deterrence is relevant to an offender who has voluntarily consumed alcohol or other substances knowing that the consumption of such substances may result in uncharacteristic criminal behaviour.

50. Specific deterrence is of relevance in this case because the offender has behaved psychotically under the influence of alcohol in the past, has appreciated the dangers of doing so, but nevertheless, consumed alcohol on the occasion of the offences.

51. Punishment is a significant consideration because of the extent of the property damage caused to the building.

52. Protection of the community is important because the offender has demonstrated by these offences that he poses a risk to the community if he consumes alcohol.

53. Rehabilitation is an important and related sentencing objective and may include addressing alcohol consumption and anxiety, including through counselling and the taking of appropriate medication.

54. The parties did not refer me to any comparable cases in relation to serious offences of recklessly causing property damage.

55. I have had regard to the sentencing database statistics in relation to the offences of burglary and recklessly causing property damage. They confirmed my views about appropriate sentences. For offences of burglary, a sentence of full-time imprisonment is generally imposed. The sentencing database shows that the 80 per cent range is 18 months to two and a half years, more where the plea is not guilty. For offences of property damage, 50 per cent of offenders receive a sentence of full-time imprisonment. The 80 per cent range is six to 12 months. However, all recorded sentences relate to pleas of guilty.

56. I have referred to the relevant considerations under s 33 of the Sentencing Act.

57. I accept that there should be a small discount for providing assistance within the meaning of s 35A of the Sentencing Act in the form of pre-trial disclosure. The offender did not dispute the facts and defended the charges solely on the basis that his psychotic state provided a defence of mental impairment. Having regard to the degree of assistance to the administration of justice, the sentences that I would otherwise have imposed should be discounted by 10 per cent

58. All arguments relevant to sentencing were ventilated on 6 April 2017.

59. Counsel for the offender submitted that the imposition of a fully suspended sentence of imprisonment would adequately address relevant sentencing purposes.

60. I considered that the sentencing purposes would be more appropriately addressed by an intensive corrections order; alcohol intoxication posed a serious risk to the community and a higher level of supervision was available under an intensive corrections order. I accepted that supervision under a suspended sentence and associated good behaviour order could be significant, depending upon the strictness of the conditions imposed on the good behaviour order.

61. On 6 April 2017, I indicated appropriate sentence lengths and the appropriate manner in which the sentences should be structured; the net result of that indication was a sentence of two years and 11 months' imprisonment.

62. Section 11(3) of the Sentencing Act enables the Court to make an intensive corrections order for sentences of imprisonment between two and four years. The order may only be made if the Court considers it appropriate to do so, having regard to the level of harm to the victim and community, risk to the community and culpability for the offence. I considered that it would be appropriate to make an intensive corrections order if the offender was assessed as suitable to undertake such an order. I noted that if the offender were considered unsuitable, I would most likely impose the sentences of imprisonment which I foreshadowed on this occasion.

63. On 6 April 2017, the matter was adjourned until 9 June 2017 in order to enable an intensive corrections assessment to occur

64. The intensive corrections order assessment concluded that, because the offender resided in Wagga Wagga in New South Wales, he could not be supervised under an intensive corrections order.

65. I accept that the offender has not simply chosen to remain in Wagga Wagga because he does not want to undertake an intensive corrections order. He and his family have very good reasons for remaining in New South Wales. His wife is employed there. His children have serious medical issues which require treatment there. His oldest son resides with the family. The family is in rental accommodation. Their financial circumstances are difficult and it would be a burden for them to have to rent premises in both Canberra and Wagga Wagga, particularly because the offender has employment in Wagga Wagga which he would lose if he moved to Canberra. I accept that his decision to remain in Wagga Wagga rather than move to Canberra was not made lightly and is a very reasonable in his particular circumstances.

66. However, the consequence of the offender's decision is that an intensive corrections order is not an available sentencing option.

67. It is necessary to determine whether the sentences indicated on 6 April 2017 should be served wholly or partly by way of fulltime imprisonment, and the degree to which the sentences should be suspended and/or the offender should be able to seek release on parole.

68. My central concern is whether a complete suspension of the sentences would appropriately reflect the sentencing purposes in the Sentencing Act. I accept that there is no legal imperative dictating that the sentences should not be fully suspended. On the other hand, I accept the prosecution submission that a longer sentence reflects a more serious matter and a more serious matter suggests that, at least in part, the sentence be served by way of fulltime imprisonment. I accept the prosecution submission that a suspended sentence is inherently lenient. To serve a sentence in the community, subjected only to supervision under a good behaviour order, is a very different proposition from spending a period incarcerated by way of fulltime imprisonment.

69. In this matter there are extremely strong subjective circumstances. For the reasons explained above, the offender's moral culpability is less than that of many people who commit offences of this type.

70. However, it is glaringly obvious that the offence of causing reckless damage to the building was a serious example of an offence of that nature because of the extent of the damage that was occasioned and the fact that it involved a course of conduct rather than an isolated act of damage.

71. I have concluded that a sentence of fulltime imprisonment is necessary to recognise the sentencing purposes of ensuring adequate punishment for an offence in a way that is just and appropriate, as well as personal deterrence, accountability, denunciation, and recognition of harm to the victim of the crime.

72. To recognise those sentencing objectives in an adequate way in the circumstances of these offences, it is my view that the offender must serve at least three months by way of fulltime imprisonment.

73. In the course of proceedings on 9 June, the prosecution made an oral application pursuant to s 19(2) of the Sentencing Act for the Court to make an order for reparation in favour of AIG Australia Ltd, the Canberra Airport insurer, in the sum of $548 849.36. This application was made more than two years after the damage was sustained, almost three months after the defended hearing was determined, two months after the sentencing proceedings occurred and on the date fixed for finalisation. It was not foreshowed earlier, although the date for finalisation has been known for two months.

74. The figure submitted by the prosecution relates largely to the cost of repairs at Canberra Airport. It also relates in part to loss assessment fees. There may be other individual items that do not relate to the cost of repairs, but I have not troubled myself to thoroughly read the material that was tendered this morning, which is voluminous and in relation to which almost no prior notice was given to the offender which may have enabled him to ascertain whether the material contains other items that do not relate directly to repairs.

75. In R v CA (No 2) [2016] ACTSC 371; 316 FLR 49 (CA (No 2)), I considered a virtually identical application. The question was whether an insurance company was entitled to reparation pursuant to s 19 of the Sentencing Act where it had reimbursed the victim of a burglary and theft pursuant to an insurance contract between the insurer and the victim. Having considered several decisions in the area and the terms of the relevant legislation in this jurisdiction, I determined that an insurer could not recover.

76. The prosecution argued that, as commercial premises are normally covered by insurance arrangements, offenders should realise that that is the case. Therefore, any insurance payments made to the occupier of premises pursuant to an insurance contract are losses that occur "as a direct result" of the commission of an offence. I do not believe that this raises additional arguments to those that were dealt with in CA (No 2), but I note the submission because the prosecution suggested that it was in some way different from the submissions advanced in CA (No 2).

77. The application is refused for the reasons articulated in CA (No 2).

78. Further, if I was wrong in CA (No 2), I would refuse this application on a discretionary basis. Section 19(3) provides that the Court "may make" a reparation order. There are powerful reasons why I would decline to exercise my discretion to make such an order in this case. It is a very long time since these offences occurred. It is a significant period since the trial occurred and since the effective sentence was indicated. Only at the very last moment did the prosecution make the application. These circumstances are completely unsatisfactory. In saying that, I do not suggest that the particular prosecutor is at fault. She is merely making the application on instructions.

79. The application is for a huge sum of money. In the past, the insurer accepted that the offender was unable to pay. If an application for a large amount of recompense is to be made, it should be notified at a reasonably early time. Supporting material should be provided and the defence should be given the opportunity of considering and addressing the material. Reasonable notice has not been given in this case and the defence has had no opportunity to address the material. The defence has come to Court today to finalise the manner in which a sentence is to be served.

i. Count 3: Causing reckless damage to property (ticket machine) - seven months' imprisonment from 8 June 2017 to 7 January 2018.

ii. Count 4: Causing reckless damage to property (utility vehicle) - seven months' imprisonment from 8 August 2017 to 7 March 2018.

iii. Count 1: Burglary - 10 months' imprisonment from 8 November 2017 to 7 September 2018.

iv. Count 2: Causing reckless damage to property (building) - two years and two months' imprisonment from 8 March 2018 to 7 May 2020.

That is a total period of two years and 11 months' imprisonment.

81. The period from 8 June 2017 to 7 September 2017 is to be served by way of fulltime imprisonment.

82. Pursuant to s 12 of the Sentencing Act, I make a suspended sentence order suspending part of the sentences for Counts 3 and 4 and the whole of the sentences for Counts 1 and 2.

83. In relation to Counts 3, 4 and 1, I impose a good behaviour order for a period of 12 months from 7 September 2017. In relation to the offence of reckless damage to the building (Count 2), the good behaviour order is for a period of two years and eight months from 7 September 2017.

84. As far as the good behaviour orders are concerned, I impose a supervision condition for a limited period. For each of the good behaviour orders, the offender is to accept the supervision of ACT Corrective Services for a period of 12 months from 7 September 2017, or such shorter period as ACT Corrective Services may determine.

The offender is to report to ACT Corrective Services by telephone within two working days of being released from prison.

I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.