R v Pearce [2016] ACTSC 393

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Property Offences - Arson - Forcible Confinement - Partially Suspended Sentence - Mental Illness - Rehabilitation

Crimes Act 1900 (ACT) s 34

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33

R v Arcus [2016] ACTSC 318

R v Brit [2015] ACTSC 402

R v Clifton [2016] ACTSC 326

R v Eimerl [2015] ACTSC 72

R v Graham (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 17 of 2009, 23 September 2009)

R v Hatzis (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 4 September 2012)

R v Wrigley [2015] ACTSC 114

Legal Aid ACT (Offender)

1. The offender pleaded guilty to offences of arson and forcible confinement committed on 31 August 2015. Arson is an offence against s 404(1) of the Criminal Code 2002 (ACT). It carries a maximum penalty of 15 years' imprisonment and/or a fine. Forcible confinement is an offence against s 34 of the Crimes Act 1900 (ACT). It carries a maximum penalty of 10 years' imprisonment and/or a fine.

2. About three weeks before the trial was scheduled to commence, the parties entered into discussions. As a result, the pleas of guilty were entered five days before the date when the trial was scheduled to commence. The late entry of pleas was partly because the defence was exploring the possible availability of a defence of mental impairment. Nevertheless, there was a significant utilitarian value to the pleas. In my view, the offender should receive a discount of about 15 per cent.

3. Following his arrest on 31 August 2015, the offender was in custody until he was released to bail on 29 September 2015. On 1 January 2016, he was arrested for an offence of common assault, and since that date he has been in custody.

4. At about 9.30 am on Monday, 31 August 2015, the offender was at his ground floor home unit in Wanniassa. It is part of a public housing complex. He was intoxicated and agitated. He was shouting and swearing inside his unit. He then set alight a plastic chair. Ms McPhedran, a neighbour who lived directly above the offender's unit, saw that the chair was alight and attempted to extinguish the flames by dousing the chair with water. However, her attempt was unsuccessful. This preliminary episode is part of the background to the offences for which I am to sentence the offender but is not the relevant arson.

5. Sometime after this initial episode, possibly at about 11.00 am, Ms McPhedran attempted to walk down her stairs, and past the offender's unit. She wished to go outside. However, she was confronted by the offender at his front door, which was at the foot of the stairs. He swore at her and threatened that he would burn her if she proceeded any further. She retreated and approached another neighbour, Mr French, asking him to accompany her out of the unit complex as she felt unsafe.

6. Ms McPhedran then heard a splashing sound and smelt petrol. The offender shouted out, "[d]on't come downstairs or I'll burn you out". Ms McPhedran believed that the offender intended to set fire to the stairs and prevent her from leaving. She became terrified. Ms McPhedron and Mr French retreated to her unit where they called the police and fire services. They remained there until the police attended at about 11.55 am and escorted Ms McPhedran and Mr French from the premises.

7. The verbal threat and the associated observations concerning the lighting of the plastic chair and smelling of petrol inspired fear in Ms McPhedran, and caused her to be confined by fear to her unit.

8. When police approached the offender's unit, the offender was standing inside the open door, holding an axe in his right hand. He then closed and locked the front door. Over the ensuing three hours there was a "standoff" between police and the offender. The AFP Specialist Response Group attempted to negotiate with the offender via telephone and loudspeaker.

9. At one point, the offender opened the glass sliding door to his unit and threw a beer bottle containing a rag soaked in an inflammable liquid into the courtyard. The bottle ignited and police used a fire extinguisher to put out the flames. About 20 minutes later, the offender ignited another fire by throwing another bottle into the courtyard. Again, police extinguished the flames. These incidents caused little, if any, property damage. The bottles were thrown towards the ground, not towards the police or fire service officers. Again, the incidents involving the bottles are not relied upon as part of the arson offence but as providing a context to the commission of that offence.

10. The arson offence occurred at about 2.50 pm, when the offender sprayed an accelerant onto the curtains of his unit and poured petrol onto the floor of the unit. He ignited the curtains and carpet of his unit, occasioning a significant amount of damage to the interior of the unit. AFP members then entered the unit through the glass door, removed the offender and extinguished the fire.

11. In the lead up to the offences, the offender's mental health had deteriorated and he had begun to experience psychotic symptoms, depression and anxiety. At the time of the offences, the offender was experiencing psychotic symptoms, including paranoid ideation.

12. At about this time, the offender was abusing alcohol and illicit drugs. He believed that neighbours were trying to poison him and he used methamphetamine to ensure that he was awake and "alert to any threats".

13. The fact that the offender was suffering from mental health problems, albeit partly related to his largely voluntary consumption of illicit substances, is a matter that bears on the moral culpability of the offender. It renders him a less appropriate vehicle for any message of general deterrence.

14. The offence of arson, which was the culmination of the standoff between police and the offender, was a rather bizarre offence, blatantly committed in the presence of police and fire officers. The presence of the officers meant that the fire could be extinguished almost immediately.

15. When assessing the objective seriousness of an arson offence, some of the factors that may be relevant were summarised in R v Graham (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 17 of 2009, 23 September 2009) and repeated by his Honour in the decision of R v Wrigley [2015] ACTSC 114 at [34]. I referred to them in R v Clifton [2016] ACTSC 326 at [16].

16. It is relevant to consider the reason for the offence and the intent behind it. Obviously, cases where offences are motivated by financial gain, a desire to defraud an insurer, revenge or the destruction of evidence, will be more objectively serious. It is also important to consider the circumstances in which an offence was committed. For example, whether the offence occurred at night and whether an accelerant was used.

Another relevant circumstance is whether the offence posed a risk of injury to others and how many people were put at risk. The degree of premeditation or impulsiveness attached to the offence is also relevant to an assessment of objective seriousness. The amount of property damage is another important consideration. The unnecessary and expensive deployment of public resources is a further relevant consideration.

17. In relation to the arson offence committed in this case, I have already referred to the fact that the offender was experiencing psychotic symptoms and that this bears upon his moral culpability. There is evidence that he experienced psychotic symptoms and the bizarre nature of the offence is consistent with the offender being psychotic at the time.

18. The offence was not premeditated. It reflected the offender's paranoid thoughts. There was significant property damage and, in a sense, persons were put at risk. However, they were not put at grave risk as police and fire officers were present and they responded rapidly to the offence when it occurred. This matter falls towards the lower end of the range in terms of its objective seriousness, although it is of some objective seriousness.

19. The offence of forcible confinement is also an offence of lower objective seriousness than many such offences. In R v Eimerl [2015] ACTSC 72, particularly at [14], Burns J referred to circumstances relevant to an assessment of the objective seriousness of an offence of unlawful confinement, citing R v Hatzis (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 4 September 2012). The circumstances set out in Eimerl at [14] and taken from Hatzis at [40] are the length of confinement, the purpose of confinement, the extent of fear instilled in the victim by and during the confinement and any injuries inflicted upon the victim.

20. In this case, the length of confinement was relatively short, approximately one hour. From the offender's perspective, there was no particular purpose in the confinement. The victim felt threatened, indeed terrified, and unable to leave because of the offender's threats that if she did so he would burn her. She was confined to her home by the threats. Fortunately she was in the company of a neighbour which, no doubt, provided some solace. There was no direct physical interaction between the offender and the victim, and during the confinement the offender was not in the victim's immediate presence.

21. These features make the offence one of lower objective seriousness than most offences of this type. Nevertheless, it was a serious offence. The victim was terrified for a period of an hour until she was rescued by police.

22. The offender is 39 years old. He has a few relatively minor matters on his criminal history, none of which is of any great relevance to the present proceedings. In 1999 he received a 12-month good behaviour order for being armed with intent to commit an indictable offence. The good behaviour order was subject to a condition that he not consume liquor and continue medical treatment, suggesting that the background to the commission of that offence might be somewhat similar to the background to the present offence. The sentence suggests that, objectively, the offence was not serious.

23. In 2016, the offender was convicted of a common assault that occurred on 1 January 2016, i.e. after the offences for which I am to sentence him and while he was on bail for those offences. In March 2016, the Magistrates Court imposed an 18-month good behaviour order which included conditions requiring the offender to undertake treatment for drug and alcohol abuse and mental health problems and to submit to drug and alcohol testing. However, the offender was not released on the good behaviour order because he was detained, bail refused, on the offences that are before me today.

24. I will take into account the fact that, in effect, part of the period that the offender has spent in custody since 1 January 2016 related to this offence of common assault, and I will start the sentence that I impose from 1 January 2016. That is not to say that I consider that it wholly consumes the period spent in custody in relation to the common assault. I do not. I date it from 1 January 2016 because the offender spent one month in custody in 2015 in relation to the offences before me.

25. The offender is an only child. His parents separated when he was 18 months old. He has three step siblings who reside in the United Kingdom. When he was nine years old he came to Australia with his mother and stepfather. The family lived in Sydney until the offender was 17 years old, when he moved out of home. The offender described his family environment as supportive, although he felt abandoned by his biological father, with whom he had no contact during childhood. The situation was not remedied when, at 18 years of age, the offender travelled to the United Kingdom to meet his biological father. The meeting was not positive. Subsequently, the offender has had no contact with his biological father.

The offender's mother died of cancer when the offender was 28 years old and her death greatly affected the offender. He maintains a good relationship with his stepfather, who now resides in Queensland and provides one of few supports to the offender.

26. At school, the offender experienced learning difficulties. He was bullied and this affected his self-confidence. However, in secondary school he established a network of friends and he completed Year 12. Thereafter he obtained trade certificates.

27. Generally, he has been in employment, either as a storeman or as a forklift driver. He was employed until several months prior to the current offences. The offender's escalating drug use and associated declining mental health caused him to lose his employment. The offender understands that employment supports him in maintaining a stable lifestyle and he is keen to reestablish himself in employment once he is released into the community.

28. The offender has had only one or two long-term relationships, neither of which is recent. He is relatively socially isolated.

29. The offender first consumed alcohol when he was five years old. From 16 years of age he drank a substantial quantity of alcohol on a regular basis. With the exception of a 10-month period spent in a rehabilitation program, throughout his adult life he has consumed alcohol on a daily basis. Prior to his recent incarceration, he was drinking the equivalent of about eight and a half standard drinks daily.

30. The offender began using heroin at 19 years of age. During his 20s, he was a heavy user. At 36 years of age, he began using methamphetamine. He quickly became a frequent user. At the time of the offences, reportedly he was injecting two points twice weekly. Associated with methamphetamine use, the offender had difficulty sleeping and experienced paranoid thoughts. He consumed methamphetamine for the purpose of keeping himself awake as he feared that he would be attacked and injured if he slept.

31. The offender has insight into his substance abuse and reported to the authors of the CADAS report that he has been abstinent while in custody. He is highly motivated to refrain from substance abuse. However, he is concerned about his ability to remain abstinent from alcohol.

32. At 18 years of age, the offender was diagnosed with depression. At 19 years of age he twice attempted suicide. He was medicated. In his early 20s, he developed symptoms of psychosis, including auditory hallucinations, delusional thinking and paranoid ideation.

33. In 2003, the offender moved to Canberra, where he completed a 10-month residential rehabilitation program. He was motivated to do so because, at that time, his mother was suffering from terminal cancer and he wanted to become sober for her sake.

34. The offender has been known to ACT Mental Health Services since March 2003. In the past, he has been diagnosed as suffering from depressive schizophrenia and borderline personality disorder. On several occasions, he has been admitted to hospital, sometimes on an involuntary basis.

35. The offender reported experiencing drug induced psychotic symptoms on about six occasions during the 12-month period prior to the offences, and attending the Emergency Department at Canberra Hospital on each occasion. The offender stated that, at the time of the offences, he was desperate for help and he committed the offences in part to "get locked up and actually get some longer term help".

36. Since entering AMC custody on 3 January 2016, the offender has been stabilised on antidepressant and antipsychotic medication. He has expressed a high level of motivation to re-engage with the Detention Exit Community Mental Health Outreach (DECO) program.

37. In a report dated 1 March 2016 prepared in connection with the common assault proceedings and for the ACT Civil and Administrative Tribunal, Dr Barker, a consultant psychiatrist, diagnosed the offender as suffering from borderline personality disorder with transient paranoid ideation and auditory hallucinations. Dr Barker stated that the offender required treatment for the disorder (such as dialectical behavioural therapy) and should engage in drug and alcohol counselling, perhaps on a court mandated basis.

38. Ideally, the offender would be placed on a drug court program, but none is available at the present time.

39. I have regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT). As previously noted, having regard to the offender's mental health situation at the time of the offences, the sentencing purpose of general deterrence is of less importance.

40. Apart from the need to impose a sentence that reflects adequate punishment and accountability, the most important sentencing considerations are the protection of public safety and rehabilitation. If he is given a high level of support, the offender is someone who, may well be capable of rehabilitating in relation to substance abuse, mental health problems and criminal behaviour.

41. I believe that I have referred to the relevant s 33 considerations above. I have considered the principles and the sentences imposed in a number of arson cases . They are the matters of R v Wrigley [2015] ACTSC 114; R v Arcus [2016] ACTSC 318 and R v Clifton [2016] ACTSC 326. In relation to forcible confinement, I have had regard to the decisions of R v Brit [2015] ACTSC 402 and R v Eimerl [2015] ACTSC 72, in which reference was made to R v Hatzis (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 4 September 2012).

42. The appropriate starting point for the sentence for the offence of forcible confinement is about 15 months' imprisonment. I will reduce it to 12 months' imprisonment for the plea. In relation to arson, the correct starting point is about two years' imprisonment. I will reduce it to 20 months' imprisonment for the plea.

43. The offender is convicted of each offence. For the offence of forcible confinement, he is sentenced to 12 months' imprisonment from 1 January 2016 to 31 December 2016. For the offence of arson, he is sentenced to 20 months' imprisonment from 1 July 2016. The offender will serve seven months of that sentence. The remaining 13 months will be suspended from 1 February 2017. I make an associated good behaviour order for the period of 13 months. The good behaviour order is subject to the conditions that the offender report to Corrective Services within one working day of release and submit to the supervision of Corrective Services and comply with all their directions and recommendations for the whole of the 13-month period of the order.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.