R v Chalmers [2015] NSWDC 70

District Court New South Wales

Medium Neutral Citation: R v Chalmers [2015] NSWDC 70 Hearing dates: 30 January 2015 Date of orders: 30 January 2015 Decision date: 30 January 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 2 years and a head sentence of 4 years. Matters on s166 certificate dismissed Catchwords: CRIMINAL LAW- Sentence - Plea of guilty entered after commencement of trial - Dishonestly destroy property by means of a fire with a view to making a gain - Lengthy criminal history - Significant history of mental illness Category: Sentence Parties: The Crown Wayne Colin Chalmers Representation: Counsel: Mr A McCarthy – Crown Mr D Roff - Offender

Solicitors: The Director of Public Prosecutions Benjamin & Leonardo Criminal Defence Lawyers File Number(s): 2012/163854

SENTENCE 1. HIS HONOUR: In May last year I commenced a trial before me and a jury involving an allegation that the prisoner in this matter, Wayne Colin Chalmers, had committed an offence of dishonestly destroying property by means of fire with a view to making a gain. As the evidence against him mounted I began to wonder why Mr Chalmers was not pleading guilty. Eventually, after only a few day's evidence, Mr Chalmers took the realistic decision to ask to be re arraigned and on this occasion he did enter a plea of guilty. It is now some time since that event. On occasions Mr Chalmers matter was listed for sentence but applications, appropriately made I emphasise, were made that the matter be adjourned, in particular so that he could be assessed by a forensic psychiatrist. That has now occurred. I am in a position to sentence Mr Chalmers and the value of the adjournments has been demonstrated by the substantial assistance that I gained from Dr Neilssen's report tendered today. 2. The offence for which Mr Chalmers stands to be sentenced was committed as long ago as 17 September 2009. On that occasion a four bedroom brick house in rural New South Wales was destroyed by fire. So complete was the damage that the premises were beyond repair and had to be demolished. Mr Chalmers did not own the premises. He rented them. He had moved in only a relatively short time before but soon afterwards began experiencing financial difficulties. At some stage Mr Chalmers formed the view that he could deal with his financial difficulties by setting fire to the house and claiming the proceeds of insurance which he held over the contents contained within the rented house. 3. He took out an insurance policy with Allianz insurance the day before the fire. He tried to get his contents insured for the sum of $237,000 but Allianz would only insure it for a maximum of $199,000. That is the policy that he took out only hours before the premises were destroyed. He already had another home contents policy with NRMA for a similar amount. 4. A number of circumstances pointed to Mr Chalmers' guilt. The multiple insurance policies, one of which was taken out only hours before the house was destroyed is one such circumstance. But another important circumstance was this: His neighbour watched in the early hours of 17 December 2009 as a person fitting the description of the accused left from and returned to the premises driving a red Ford utility on several occasions throughout the early hours. When the Ford utility with a trailer attached left the premises it was weighed down but when it came back it was empty. As if that were not enough, later police became aware that property which should have been destroyed in the fire had Mr Chalmers been an innocent victim of some circumstance was still in existence and this is consistent with a safe in the premises which was supposed to have jewellery in it being found to be empty. 5. The value of the property prior to the fire was estimated to be three quarters of a million dollars. That of course included the land value. The premises were insured and the owner was paid out more than $300,000 on account of her loss. 6. One of the other circumstances the Crown would have relied on, had it been necessary, at trial was that Mr Chalmers, the Crown was going to submit, had a tendency to commit offences of this kind. On his criminal history is a similar offence to the one he is now to be sentenced on, committed on 15 May 2009, that is only a very short time before he committed this offence. 7. Mr Chalmers has quite a lengthy criminal history of offending in New South Wales, the Australian Capital Territory and Queensland. As I have just mentioned he has an offence of a similar type to the one for which he is to be sentenced as well as many offences involving dishonesty, some of assault and driving offences as well. 8. Mr Chalmers is a man who has a significant history of mental illness. Indeed only very shortly before he committed this offence he was assessed by a psychiatrist as part of ongoing treatment. He was found to be experiencing hallucinations and to have persecutory beliefs, but he was responding well to a high dose of anti-psychotic medication. 9. I mentioned before the assistance I gained from Dr Nielssen's report. Dr Nielssen saw the offender and reviewed documentation including a report of the psychiatrist who saw Mr Chalmers shortly before committing this offence, and spoke to the offender's mother. He concluded this way: "It is clear that Mr Chalmers has a severe and disabling form of psychiatric disorder, from the history of a pattern of antisocial and self-defeating behaviour, and from the gross impairment in social judgment that is evident in his presentation and in his past behaviour, including this offence." 1. His condition cannot have been helped by his abuse of both alcohol and drugs, but of course his abuse of those substances has to be looked at in the light of his underlying mental illness. Dr Nielssen believed that there was a connection between the offender's mental condition and the offence because: "The offence itself and his behaviour on the day of the offence appear to be consistent with the outward manifestation of his condition, with impairment in social judgment, lack of inhibition and impulse control. He showed lack of judgment in apparently not recognising the scrutiny that taking out an insurance policy just before a suspicious fire might create." 1. The offender is the older of two boys. He had a younger brother who sadly died in 1998 from what was found to have been an accidental drug overdose. Mr Chalmers was deeply affected, it is no surprise to learn, from the death of his brother. He rarely saw his father as he was growing up, his parents having separated when he was quite young, but he has a very good relationship with his mother. She has supported him over what must have been a very difficult number of years. Mr Chalmers' misbehaviour was apparent from an early age. He was expelled from schools, truanted and began committing offences at a very young age. No doubt a great deal of Mr Chalmers' criminal offending results from his long term psychiatric illness. 2. The consequences of his psychiatric illness are numerous when it comes to determining the appropriate sentence to impose upon him. Firstly his moral culpability is reduced. He is not to be sentenced as though he was a fully functioning adult who was in a position to reason with a completely healthy mind about whether or not to commit this offence. As Dr Nielssen notes he will be vulnerable in prison because of his impairment in social judgment and his poor impulse control. Dr Nielssen further notes that he would expect that the treatment available for Mr Chalmers' various conditions in custody would be inferior to those available in the community. There is also a risk of setting back the ongoing treatment of the offender which has been able to improve his condition over recent times. For those reasons, amongst others, it is the case that a sentence more lenient than that which otherwise would be imposed would be appropriate. 3. There is of course a reduced need for general deterrence but the authorities remind us that that does not mean that other factors to be considered in determining an appropriate sentence are to be ignored, in particular the issue of personal deterrence. The offender has demonstrated a continuing attitude of disobedience to the law. There have been one or two periods where he has remained offence free for a decent period of time, but certainly in 2009 he was offending at a significant level. There is no suggestion from anything I have read in Dr Nielssen's report that personal deterrence should be ignored and I will not do so. The offender needs to know that if he continues to commit offences, particularly offences of this seriousness, he will continue to go to gaol. 4. I should indicate that the offender's plea of guilty did carry with it a utilitarian benefit, although as is obvious from the procedural history I have outlined, a very limited one indeed. I will however take it into account and there will be a modest reduction from the sentence that would otherwise have been imposed had Mr Chalmers been found guilty by a jury as would inevitably have been the case. 5. There is no expression of remorse contained in Dr Nielssen's report nor within any other piece of evidence before me. The only thing that Mr Roff could point to as demonstrating remorse was the offender's plea of guilty, but in my view that, as I have made clear I trust, that was simply recognition of the inevitable. I do not find that the offender is remorseful at all. 6. Although there is no evidence that the offender engaged in a great deal of planning leading up to him taking out the insurance policy with Allianz, once that was done he put a great deal of effort into committing this offence and seeing it through. This was certainly not a spur of the moment decision immediately regretted. There was a significant amount of harm caused by the offence. The loss was substantial. It may be that the owner was reimbursed by her own insurance company, but that is just a shifting of the loss not a mitigation of it. 7. I note that this offence can be dealt with summarily. But this was an offence of such seriousness that it would have been completely wrong for it to have been dealt with in the Local Court with a jurisdictional limit of only two years. 8. I note the suggestion that this offence was committed because of financial difficulty. Almost every case of an offence of this kind comes about because of financial difficulty. If this was a mitigating factor then the law would soon cease to have an appropriate deterrent effect as regards sentences for this type of offence. 9. It has to be said that the prospects of Mr Chalmers' rehabilitation are far from good. A great deal will depend on his attitude towards the way he has lived his life till now. If he wants to keep committing offences he has to understand that he will go back to gaol regularly, and for longer and longer periods. The only person who can break that cycle is the offender himself. He will of course be assisted by those who treat him whilst he is in custody and I am prepared to make a finding of special circumstances in his favour in order to assist him to make the right decisions about whether he will commit further offences once he is released from custody. 10. It is of course sad to send Mr Chalmers back to gaol after he has been in the community with the support of his mother and where his medical conditions have been, it would seem, properly treated. But it is necessary to do so, particularly given the gravity of Mr Chalmers' original offending. It is to be noted that the maximum penalty for offences of this type is 14 years imprisonment. That is a good indication of the seriousness with which parliament believes Judges should treat offences of this type. 11. The offender is sentenced to imprisonment. I set a non-parole period of two years and a head sentence of four years to commence today 30 January 2015. The non-parole period will expire on 29 January 2017 on which day the offender is eligible to be released to parole. 12. The backup charge on the 166 certificate is dismissed.