Local Court of New South Wales CITATION: Police v Francis William GOODWORTH [2007] NSWLC 2 JURISDICTION: Criminal PARTIES: Police Francis William GOODWORTH FILE NUMBER: PLACE OF HEARING: Moree DATE OF DECISION: 03/28/2007 MAGISTRATE: Magistrate G Lerve CATCHWORDS: Malicious Damage by Fire – substantial damage – mental illness – use of statistics – hardship to third parties following imprisonment of offender – jurisdictional limit (as opposed to maximum penalty) in the Local Court Crimes Act 1900 LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 Crimes (Sentencing Procedure) Act 1999 R –v- Byrne (1998) 104 A Crim R 456 R –v- Doan (2000) 50 NSWLR 115; 115 A Crim R 497 R –v- DMA (2001) 126 A Crim R 264 R –v- Dodd (1991) 57 A Crim R 349 CASES CITED: R –v- Engert (1995) 84 A Crim R 67 R –v- Malcolm [2006] NSWCCA 323 R –v- Mazur (2000) 113 A Crim R 67 R –v- Ryan (2003) 141 A Crim R 403 R –v- Tadrosse [2005] NSWCCA 145 R –v- Zamagias [2002] NSWCCA 17 REPRESENTATION: SGT B. Willett, Police Prosecutor Ms. P. Croll ORDERS: Convicted and Sentenced to 18 months imprisonment with 8 months non-parole period Remarks on Sentence 1. This case is yet another example of the inadequacies of the criminal law in dealing with offenders who, while suffering a mental illness commit serious criminal offences. I must admit to a certain degree of frustration in dealing with this matter. It involves the total destruction by fire of a dwelling, which had an insured value of $80,000-00. According to oral submissions made by the prosecutor, and which I accept, the matter was referred to the Office of the Director of Public Prosecutions, but that office declined to take over the matter. Had this matter been dealt with on Indictment the offender would maybe have had the advantage of being able to use the provisions relating to unfitness to be tried within the Mental Health (Criminal Procedure) Act, 1990. The record will reflect that Ms. Croll, who at all stages has appeared for this offender made application that I conditionally dismiss this matter pursuant to the provisions of s. 32 of the Mental Health (Criminal Procedure) Act, 1990. I declined to exercise my discretion pursuant to that provision on 5 February 2007. Essentially, I declined to so deal with the matter because of the seriousness of the offending, and the fact that if I took the course urged upon me by Ms. Croll, the court could only have supervised the offender for a period of six months. I have put a substantial effort into this matter, including going through 51 cases from the Court of Criminal Appeal on the issue of sentence. Because of the factual situation of those cases and/or the peculiar nature of this case they were of little assistance. Given the seriousness of the offending and the offender's situation, it is appropriate that I fully expose my reasoning in the sentencing process. 2. By way of Court Attendance Notice the offender is charged: "For that (he) on 29 January 2006 at Moree in the State of New South Wales, maliciously did destroy by means of fire certain property, (namely) the Care Taker's Residence, Moree Show Ground, the property of the New South Wales Department of Lands". 3. The offender was not arrested until 11 August 2006. The matter initially came before me on 14 August 2006 on which occasion it was adjourned until 9 October 2006 for plea. The lengthy adjournment at this initial stage of the proceedings was because of the offender's mental health. The matter came before me on 14 November 2006 and again on 27 November 2006. Ms. Croll indicated that she wished to make an application pursuant to s. 32 of the Mental Health (Criminal Procedure) Act 1990. I took the view then, and remain of the view that the material provided initially would not have satisfied the threshold test as set out in s. 32(1) of that legislation. The matter was adjourned in order that more comprehensive material could be obtained. I did, however, make it clear that the granting of the adjournment for that purpose should not be taken as any indication that I was minded to grant the application. The s. 32 application was argued on 9 January 2007 and the decision given on 5 February 2007. The matter was then adjourned to 20 March 2007 in order that a full pre-sentence report could be prepared. Facts 4. As is usual in this jurisdiction, the matter proceeded by way of tender of a Police Fact Sheet. No objection was raised, nor was any particular issue raised in respect of any of the contents of that document, by the solicitor for the offender. Accordingly, I have proceeded on the basis that the contents of that Fact Sheet are agreed facts for the purpose of sentence. 5. At about 3am on 29 January 2006 the offender, in company with another person went to the Moree Show Ground, and in particular the Care Taker's Cottage at the south-eastern corner of those grounds. That cottage was unoccupied at the time. 6. The offender entered the cottage through a window. He tore a hole in a mattress and stuffed a quantity of toilet paper into the hole he so created. He then leant the mattress against a wall, and using a cigarette lighter ignited the paper. At the time he ignited the paper, he had the intention of burning down the entire building. 7. After setting the fire, the offender and the co offender repaired to a nearby railway bridge some 300 metres away where they remained for about 45 minutes. During this interval the fire took hold, and the emergency services attended. The fire brigade were able to extinguish the blaze, however, the entire cottage was destroyed. The building was insured to a value of $80,000. 8. Acting on anonymous information from members of the public the police approached the offender on 11 August 2006. An electronically recorded interview was had with the offender, in the course of which he made substantial admissions. Those admissions included an intention to burn down the building and going to the scene with the paper and cigarette lighter in order to be able to start the fire. The offender accompanied police to the scene and a "walk-through" (recorded on audio and video) was conducted in the course of which the offender indicated a number of matters relative to the fire. Assessment of the criminality 9. Objectively, this is a particularly serious matter, and indeed is over the halfway mark on the scale of seriousness. It involved the premeditated and wanton destruction of a dwelling valued at $80,000. Clearly, there was some planning. However, given the mental health issues relative to this offender, I deal with the matter on the basis that any such planning would not have been sophisticated in any way. I would expect that this matter is about as serious an example of this type of case that is dealt with in the Local Court. 10. My researches have not revealed a decision of the Court of Criminal Appeal of this State that is of great assistance (after having read 51 different cases), given the unusual nature of the material that I have to consider. However, in the decision of the Victorian Court of Appeal in R-v- Mazur (2000) 113 A Crim R 67 at 74 Winneke P said at [27]: "…I agree with Brooking JA that courts imposing sentences for arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate". 11. Brooking JA in that decision considered the earlier (Victorian) case of Perrone (1989) 43 A Crim R 366. His Honour said in Mazur at [24] that the decision in Perrone was wrong. However, his Honour went on to say (Mazur at [24]) that: "To say this, of course, not to touch the proposition accepted in Perrone that in cases of arson a custodial sentence is not inevitable". Plea of guilty 12. There was an immediate plea of guilty after the application pursuant to s. 32 of the Mental Health (Criminal Procedure) Act 1990 was refused. Brief orders were never made, nor was the matter ever listed for hearing. In these circumstances I am prepared to allow the full 25 per cent discount for the utilitarian value of the plea of guilty. Maximum Penalty 13. The Maximum penalty for a charge of Malicious Damage by Fire dealt with on Indictment is 10 years imprisonment. The jurisdictional limit in the Local Court is 2 years imprisonment. However, that period of two years is a jurisdictional limit as opposed to the maximum penalty to be reserved for a "worst case" type matter. Grove J. (Spigelman CJ & Kirby J agreeing) in R –v- Doan [2000] NSWCCA 317 said at paragraph [35]: " The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'". Criminal History 14. The offender does not have a lengthy record. He was born in 1962 and accordingly, is now 45 years of age. In 1998 he received sentences of Community Service for charges of Assault and Break Enter and Steal. In 2000 he was placed on Good Behaviour Bonds following the revocation of those Community Service Orders. There is no entry that I can find on his record, relating to malicious damage or malicious damage by fire. Generally, his record assists the offender. Statistics 15. I have considered the Judicial Commission's statistics, for both the District Court and Local Court, for offences of Malicious Damage by Fire. For what they are worth, those statistics are annexed to these reasons. In the District Court statistics, out of a sample of 108 cases, 56% received full time custodial sentences. In the Local Court, out of a sample of 45 cases, 31% received full time custodial sentences. 16. However, on the issue of the use of statistics Grove J. (Ipp JA Shaw J. agreeing) in the decision of R –v- Ryan (2003) 141 A Crim R 403 said at p. 411: "The next issue relates to contention concerning established patterns of sentencing. Statistics collated by the Judicial Commission and sample judgments were invited to be surveyed. In approaching this issue it must be borne in mind that bald statistics are of limited use, however they may provide indications of general sentencing trends and standards, assist in assuring consistency and be useful in determining whether a sentence in manifestly excessive or manifestly inadequate: R –v- Bloomfield (1998) 44 NSWLR 734; 101 A Crim R 404". Pre Sentence Report 17. I am assisted by a Pre Sentence Report dated 14 march 2007 prepared by Crystal Duncan of the Local Probation and Parole Service Office. The Report begins by outlining the previous contact had between the Probation Service and the Offender. Regrettably, it seems to have not always been positive. The report details that a number of Community Service Orders were revoked because of the offender's failure to attend and complete the work. 18. The offender resides in the local area with his partner of 29 years. If that figure of 29 years is correct, he commenced that relationship when he was 16 years of age. The offender's upbringing was dysfunctional because of quarrels and alcohol abuse issues within the household. 19. Further, the Report indicates that the offender left school at 14 and is illiterate. He received a disability pension, receiving $420 per fortnight. He has never been employed. 20. The report also refers to the offender's mental health issues. Given the significance of the offender's mental health, I will address this issue under a separate heading. For the purposes of dealing with the report, however, I have no difficulty in accepting the contents of the report under the heading "Health/Mental Health Issues". The offender maintains that voices "told him to commit the offence". I accept that the offender is remorseful and that he understands the seriousness of his actions. 21. According to the Report, the offender has abused alcohol in the past, but more recently he has decreased his drinking to 3 – 4 beers daily. 22. The offender is suitable for supervision, particularly on the issues of compliance with medication and anger management. It is noted however, that because of the offender's low level of intellectual functioning, supervision may not be of positive benefit. 23. The report indicates that the offender is not suitable for Periodic Detention or Community Service. I comment regularly that I find it frustrating that in Moree I do not have the sentencing options, such as Periodic Detention and Home Detention, that are available as a matter of course to the Court in Sydney. Mental Health Issues 24. I will first of all go to what I understand are some of the relevant authorities. In the case of R –v- Malcolm [2006] NSWCCA 323, the Court of Criminal Appeal considered the "balance between general deterrence and rehabilitation where the applicant suffered from an intellectual disability". Rothman J. (Tobias JA and Howie J agreeing) said at [10] – [11]: "As have been pointed out a number of occasions, it is not unusual for persons suffering from mental disorders to come before the courts. The sentencing of such a person, a not uncommon experience for judicial officers, requires the exercise of a discretion involving balancing general deterrence, specific deterrence and the prospects of rehabilitation. The difference is that society cannot require of a person who is suffering a mental disorder that they be used as an example to the general public, because a person with a mental disorder may not understand fully the distinction between right and wrong or the gravity of their actions. But the goals of sentencing remain the same. They are the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform: Veen (No. 2) (1988) 164 CLR 476. As was pointed out in R –v- Engert (1995) 84 A Crim R 67, the principles of sentencing do not require automatic consequences. In particular, the fact of a mental disorder does not require automatically, a lesser sentence than might otherwise be the case" 25. In R –v- Engert (1995) 84 A Crim R 67, Gleeson CJ (Allen J agreeing with a few additional remarks, Sully J. agreeing) said at pp 70-71: "The circumstance that an offender suffers from a mental disorder may well be of considerable relevance in a number of respects to the sentencing task. One of those respects depending upon the facts and circumstances of the individual case, may relate to the matter referred to by this Court in the case of Scognamiglio (1991) 56 A Crim R 81. At 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval. That passage was in the following terms: 'In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other, but in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given little weight…General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others'. 26. On the aspect of the protection of the community, Sperling J. in giving remarks on sentence in R –v- DMA (2001) 126 A Crim R 264 said at 268-9 (paragraph 22): "The balancing exercise is nowhere more acute than in cases where mental disorder or mental disability has contributed to the crime. On the one hand, the discouragement of others by example, that is, general deterrence, is generally regarded as deserving less weight in such a case because it is considered inappropriate to use such a person in that way…On the other hand, whilst protection of the community cannot justify a sentence that is disproportionate to the gravity of the crime, that consideration may be of greater importance in the case of a mentally disturbed offender, and may offset the offender's mental condition which would otherwise be a potentially mitigating feature of the case". 27. I now turn to the material that is before me as to the offender's mental health issues. Much of the material relied upon was material before me on the application that I deal with this matter pursuant to s. 32 of the Mental Health (Criminal Procedure) Act 1990. However, that makes it no less significant or important. The material essentially consists of a report from Dr. Igor Petroff, a Consultant Psychiatrist, a report from Dr. Maxine Percival, a General Practitioner of Moree and a report from Ms. Cecilia Blackwell, a Counsellor with nursing and mental health qualifications. When the application under s. 32 was initially made the only material advanced was the report of Ms. Blackwell. Ms. Blackwell opined that the offender was a person with limited intellectual abilities and symptoms of a mental illness. She also concluded that any custodial sentence would have a significant impact on the offender and his long-term partner. She recommended that the offender continue with medication and that he receive counselling. 28. Dr. Petroff is of the opinion that the offender suffers from Chronic Paranoid Schizophrenia in addition to Developmental Delay. There is not the slightest reason to doubt either of these diagnoses. The offender was "terrified' of going to gaol. Dr. Petroff also recommends the maintenance of medication and regular activities through a sheltered workshop. Dr. Petroff records (top of page 2 of his report) that the offender denied he was drinking, but "stated that he was hearing voices at the time telling him to burn down the Moree Showground". 29. Dr. Percival confirms the diagnosis of developmental delay, essentially through history. The offender has regularly attended the surgery in relation to depression, anxiety, paranoia and hearing voices. He has been on Zyprexa 10mg once per day since 2001 and has been intermittently treated with antidepressants. 30. Clearly the offender suffers from a mental illness. Likewise, there can be doubt that he also is developmentally delayed. Accordingly, in the circumstances it seems to me there can be no reasonable argument advanced contrary to the proposition that this offender should not be used as a vehicle for general deterrence. Plea in Mitigation 31. The Court is indebted to Ms. Croll for her careful and comprehensive submissions on sentence in this matter. I apprehend my summary of those submissions will not do justice to the obvious amount of industry applied by Ms. Croll in her submissions. 32. The offender is now a 45-year-old man with significant mental health and developmental delay issues. The material from the medical practitioners and counsellor, to which I have already referred were relied upon in the plea in mitigation. The Court was reminded that the offender is illiterate. However, the offender acknowledges that he was responsible for the destruction of the cottage at the Showground. The offender is apparently aware that the offence to which he has pleaded guilty is a serious one, and that; there are potentially serious consequences. I accept that the offender is very remorseful. It was submitted, and I accept that the offender "feels terrible" about the events at the Showground. Further, it was submitted, and I accept, that the offender is determined that he will not re offend. 33. Ms. Croll submitted that I impose a custodial sentence, but that any sentence imposed should be suspended pursuant to s. 12 of the Crimes (Sentencing Procedure) Act 1999. It was argued that this would allow the offender to be supervised, particularly on the aspect of his medication to ensure that there would be no re offending. The offender has substantially reduced his consumption of alcohol. It was put to me that the offender has had the nature of a suspended sentence explained to him, and further, that he understands the consequences of any breach. 34. Further it was submitted that the offender is very concerned about what would happen with his partner, who is to a significant extent, reliant on him, if he were to be imprisoned. The relationship, it was argued, is a positive one, and one of mutual support. His partner is diabetic, and suffers from a heart condition. The offender helps around the house with the usual household chores. 35. During the course of my consideration and research into this matter I came upon the decision of the Victorian Court of Criminal Appeal in Mazur, to which I have previously referred. I made Ms. Croll aware of that decision on Monday 26 March 2007. I indicated that I would give Ms. Croll a further opportunity to address on the issues raised. 36. Ms. Croll further addressed on 28 March 2007. She forcefully argued that the issues relating to the offender's mental health, the development disability, his generally deprived background and issues relating to his partner amount to the exception circumstances that would enable a court not to impose a sentence of full time custody. I accept that the offender has had a deprived background. I will return to the issue of the offender's partner shortly. Ms. Croll also addressed on the issue of the statistics. She reminded me of the limited use to which those statistics can be put. Further, it was submitted that a good number of persons dealt with for this offence by both the District and Local Courts escaped a sentence of full time custody. While that is the case, it seems to me that very few of the sample cases, particularly those in the Local Court would involve matters involving the very substantial amount of damage that is involved in the matter presently under consideration. 37. I turn now to the issue of the offender's partner. They apparently met at the Morriset Mental Health Institution while they were both undergoing treatment. If the offender is incarcerated, his partner will effectively be on her own. It has apparently been made very clear to the offender and his partner that the offender's family will not assist. On this issue of the significance of hardship to third parties, the authorities were reviewed by Dunford J. in his judgment in R –v- Byrne (1998) 104 A Crim R. 456. His Honour said at p. 463: "The general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in mitigation of sentence in highly exceptional circumstances. The care of young children is not normally an exceptional circumstance. In Edwards (1996) 90 A Crim R 510 at 516 Gleeson CJ said: "The real difficulty about a case such as the present, and many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional; regrettably, causing hardship to third parties by the imprisonment of the offender is only too common… 38. It is argued that there are those exceptional circumstances in this case. Ultimately, however, I am of the opinion that in all the circumstances, including the offending, and the circumstances of the offender and his partner are not such that he is enabled to avoid a sentence of full time custody in this matter. General Remarks 39. I am obliged to consider sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. Ultimately, I am satisfied, given all of the circumstances, including the nature of the offending, and in particular, the amount of damage occasioned, that no penalty other than imprisonment is appropriate. In arriving at this conclusion, I have steadfastly borne in mind the matters, outlined above, relating the offender's mental health and developmental delay. I now consider the length of that sentence, and then whether that sentence should be suspended. I remind myself of the judgment of the Court of Criminal Appeal in Dodd (1991) 57 A Crim R 349, particularly at p. 354, which was referred to with approval by Howie J. in Zamagias [2002] NSWCCA 17 at [9], namely: "As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594." 40. Howie J. in Zamagias went on to say however, at [32]: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 41. It seems, therefore, that the decision whether or not to suspend a sentence of imprisonment is not solely dependent upon the subjective circumstances of the offender. The assessment of the criminality and the need for general and specific deterrence as well those subjective features needs to be considered. The issue of general deterrence in the matter presently under consideration does not feature for reasons I have already outlined under the heading of mental health issues. However, I cannot ignore what was said by the Court of Criminal Appeal in the case of Malcolm [2006] NSWCCA 323. Be that as it may, the offending in this matter was substantial, involving as I have already said, the deliberate, wanton and premeditated destruction of a dwelling valued at $80,000. Despite the very significant subjective circumstances, and in all of the relevant circumstances, particularly the offending, I am of the opinion that it is not appropriate to suspend any sentence of imprisonment. 42. In the course of these remarks I have identified what I consider to be the aggravating and mitigating features. I will not otherwise go through the matters set out within s. 21A of the Crimes (Sentencing Procedure) Act 1999 – see for example the decisions of Tadrosse [2005] NSWCCA 145 (especially at [17] per Howie J.), Elyard [2006] NSWCCA 43 and Higgins [2006] NSWCCA 326 per Grove J. at [13]. 43. However, I am of the opinion that there are factors that more than amount to Special Circumstances within the meaning of that expression in s. 44 of the Crimes (Sentencing Procedure) Act 1999. These include the fact that this will be the offender's first time in custody, the mental health issues and the need for substantial and ongoing supervision (particularly as to his medication) upon his eventual release Formal Orders In respect of the charge to which the offender has pleaded guilty, the offender is convicted. Consequent upon that conviction the offender is sentenced to a non-parole period of eight (8) months to commence from 28 March 2007 and which will expire on 27 November 2007. Thereafter I specify a Balance of Term of ten (10) months to date from 28 November 2007 and which will expire on 27 September 2008. Gordon Lerve Magistrate Moree Local Court 28 March 2008. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.