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Citation: [2021] ACTSC 287

Hearing Date: 4 November 2021

Decision Date: 4 November 2021

Before: Murrell CJ

Decision: 12 months’ imprisonment, suspended after six months on the offender entering into a six-month good behaviour order. Offender to submit to jurisdiction of ACAT to allow ACAT to make mental health order or forensic mental health order

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – where fire lit inside cell at the Alexander Maconochie Centre – where offender has mental health difficulties – where offender progressing well at Dhulwa Forensic Unit CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Causing grievous bodily harm – where special verdict of not guilty by reason of mental impairment entered – where serious offence – whether accused should be retained in custody for immediate review by the ACAT – consideration of criteria for detention – whether order should be made requiring accused to submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order

Legislation Cited: Crimes Act 1900 (ACT) s 25, 324 Criminal Code 2002 (ACT) s 404 Mental Health Act 2015 (ACT) s 117

Cases Cited: R v Beroukas [2021] ACTSC 172 R v Denniss [2021] ACTSC 15 R v Howsan [2020] ACTSC 172 R v Matthew [2017] ACTSC 413 R v Miles [2016] ACTSC 83 R v Rahman [2021] ACTSC 257 R v Thomas [2019] ACTSC 306 R v Yeaman [2021] ACTSC 252

Parties: The Queen (Crown) Julian Yeaman (Offender)

Representation: Counsel M Smith (Crown) B Collaery (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Daryl Perkins Solicitors (Offender)

File Numbers: SCC 51, 288 of 2020

MURRELL CJ:

Introduction

1. Sitting as a judge alone, I tried the offender on two counts. In relation to both counts, he raised the “defence” of mental impairment.

2. On 7 October 2020, I convicted the offender of the offence that, on 21 October 2019 he committed arson, contrary to s 404(1) of the Criminal Code 2002 (ACT). The offender is to be sentenced for this offence. The maximum penalty is a fine of $240,000, imprisonment for 15 years, or both.

3. In relation to the second count in the indictment, on the basis of mental impairment I returned a special verdict of not guilty of the statutory alternative offence that on 31 May 2020, while a resident at the Dhulwa Forensic Unit (Dhulwa), he caused grievous bodily harm to his mother contrary to s 25 of the Crimes Act 1900 (ACT) (Crimes Act). For a person convicted of such an offence, the maximum penalty is imprisonment for five years. It is a “serious offence” within the meaning of s 324 of the Crimes Act.

4. The parties invite me to proceed to deal with this matter pursuant to s 324(2)(b) of the Crimes Act, which provides:

324 Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence (1) This section applies if an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered by the Supreme Court. (2) The Supreme Court must— (a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.

5. This would have the practical consequence that Mr Yeaman could be subjected to a further forensic mental health order for a period of up to a year: s 117 of the Mental Health Act 2015 (ACT). For the reasons that follow, I consider that that is an appropriate outcome.

Arson

6. The facts are set out at [21]–[31] of my decision: R v Yeaman [2021] ACTSC 252. On 21 October 2019, the offender was a prisoner at the Alexander Maconochie Centre (AMC). He positioned flammable articles in his cell, covered the ceiling vent that was designed to detect smoke, and ignited the flammable material using a cigarette lighter. He then called for help, saying that he had lit a fire.

7. The offence is of low to moderate objective seriousness. The following factors inform the objective seriousness of the offence:

(a) The offender had lit a fire some weeks earlier and had threatened to burn his cell. However, in relation to the offence, his thinking was confused. The offence was not planned in a rational and calculated way. Although there was last-minute planning in that the vent was covered and the flammable material was piled, there was also a degree of impulsivity associated with the offence.

(b) The offender's motives for committing the offence were confused. They included expressing distress, “protest”, seeking “control” and endeavouring to effect a transfer from the main part of the prison to the Crisis Support Unit at the AMC. The offender's confused motives reflect underlying mental health problems which impaired his judgment and ability to control his impulses. His mental health difficulties reduce his moral culpability for the offence.

(c) The offender voluntarily terminated the incident soon after lighting the fire by summonsing the authorities.

(d) A modest amount of damage was caused to the cell. However, significant indirect expense was occasioned by the need to deploy corrections staff and ACT Fire and Rescue staff to deal with the aftermath of the fire.

(e) Numerous corrections staff and prisoners were significantly inconvenienced. Further, any fire in a custodial setting is, by its nature, particularly dangerous. Other prisoners are vulnerable in that they are restricted in their ability to flee or otherwise protect themselves from a fire.

Subjective factors

8. The offender is 31 years old.

9. At the time of the arson, the offender was being held in the AMC, perhaps in relation to offences or incidents that were subsequently dealt with by Magistrate Stewart in December 2019. One of the incidents that Magistrate Stewart dealt with was an offence of assault occasioning actual bodily harm that had occurred in August 2018 at the Canberra Hospital.

10. In any event, at some point between October 2019 when the arson offence occurred and May 2020 when the incident occurred at Dhulwa, the offender succeeded in obtaining a bed at Dhulwa and was transferred there. He has been held for some time at Dhulwa pursuant to psychiatric treatment orders.

11. At the time of the May 2020 incident, he was progressing quite well at Dhulwa with university studies and was keeping fit. I am informed that since that time he has been relatively stable, except for occasional difficulties which have caused him to be placed in the high-risk section of Dhulwa. I am informed that he is currently in the high-risk section but hopes to be transferred to a lower risk section in the near future where he hopes to be able to continue with his studies.

12. As an adult, the offender has been charged with numerous offences of assault and using a carriage service to threaten harm. Generally, these charges have not resulted in a conviction but a disposal pursuant to mental health provisions.

13. The Court received evidence at the trial concerning the offender's mental health situation and the tenor of that evidence is consistent with the evidence that has been placed before the Court in the form of a report from Dr Wareing, a consultant forensic psychiatrist who has been treating the offender at Dhulwa since February 2021. Dr Wareing states:

He has diagnoses of borderline personality disorder, schizophrenia and attention deficit hyperactivity disorder, as well as multiple substance use disorders. His current psychiatric medication regimen consists of the antipsychotic zuclopenthixol (400mg long-acting injection every two weeks) and the mood stabiliser lithium (450mg mane, 700mg nocte). The main issues to address in Mr Yeaman’s forensic psychiatric treatment are his emotional dysregulation, the stability of key relationships, the risk of resuming substance use, his insight into past offending behaviours, and the establishment of meaningful community-based activity. The timeframe required to address these issues to an extent that would enable discharge is unknown. A number of years may be necessary.

14. It would appear that any sentencing imposed by this Court will be somewhat academic, in the sense that the offender is likely to remain at Dhulwa for a further period as indicated by Dr Wareing. Nevertheless, it is necessary for the Court to go through that academic exercise.

Other sentencing considerations

15. As well as being relevant to moral culpability, the offender's mental health may be relevant to sentencing purposes and to the difficulty that the offender may experience in the prison environment. In this case, relevant sentencing purposes include accountability and rehabilitation. Contrary to a submission made on behalf of the offender, I do consider that personal deterrence is a relevant sentencing purpose in this case, as is accountability. Despite his mental health difficulties, the offender is readily capable of appreciating that criminal behaviour will result in punishment and that he should be held accountable for such behaviour. Other sentencing purposes, particularly that of general deterrence, are of limited or no relevance having regard to the offender's mental health problems.

16. For the purpose of achieving reasonable consistency in sentencing, the Court may have regard to other cases which may provide a “yardstick” against which to assess a sentence that the Court is contemplating. Statistics may also serve a similar purpose, although the limitations of statistics are well known.

17. The ACT Sentencing Database indicates that for offences of arson sentenced between July 2012 and November 2020, of 51 offenders, 45 per cent received sentences of full-time imprisonment and most of the remainder received fully or partially suspended sentences. Most of the sentences of full-time imprisonment were for a term of between six and 18 months.

18. In R v Rahman [2021] ACTSC 257, I sentenced an offender who, like the present offender, had impulsively set a fire in his cell at the AMC and who also suffered from schizophrenia. I imposed a two-year good behaviour order. In doing so, I considered decisions involving other offenders who had committed arson within the AMC: R v Beroukas [2021] ACTSC 172 (10 months’ imprisonment reduced from 12 months, suspended after two months); R v Howsan [2020] ACTSC 172 (12 months’ imprisonment reduced from 16 months, wholly suspended); and R v Denniss [2021] ACTSC 15 (12 months’ imprisonment reduced from 16 months).

19. The prosecution referred me to other decisions in which offenders suffering from mental health problems had been sentenced for an arson offence committed after limited planning. The most significant of these cases were:

(f) R v Thomas [2019] ACTSC 306, in which the offender was sentenced to 18 months’ imprisonment (reduced from 22 months’ imprisonment), suspended after six months and 16 days.

(g) R v Matthew [2017] ACTSC 413, in which the offender was sentenced to 14 months’ imprisonment (reduced from 15 months’ imprisonment), suspended after three months on entry into a two-year good behaviour order. In that case, a victim suffered minor burn injuries and there was significant property damage.

(h) R v Miles [2016] ACTSC 83, in which the offender was sentenced to 18 months’ imprisonment (reduced from 27 months’ imprisonment).

20. Having regard to the objective seriousness, the subjective factors to which I have referred and relevant sentencing purposes, I have decided that a sentence of 12 months’ imprisonment is appropriate. It is plain to me that it would be very undesirable for the offender to be housed in the AMC. Any such placement may well result in anti-social behaviour of the type for which I am sentencing him today. I am informed that it is uncertain as to whether a sentenced prisoner can remain at Dhulwa.

Sentence

21. Taking into account the sentencing purpose of rehabilitation, the particular difficulties that the offender would experience if he was returned to a custodial setting at the AMC and also having regard to the lengthy period during which he has been held (albeit not directly referable to the offence for which I am sentencing him), I will sentence him to 12 months’ imprisonment from 4 May 2021 to 3 May 2022. The sentence is suspended from today on the offender entering into a six-month good behaviour order.

22. In relation to the charge of causing grievous bodily harm, taking into account the criteria for detention under s 308, I consider that the most appropriate course is to order that Mr Yeaman submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015 (ACT) and I make that order.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

Associate:

Date: