IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01851

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SHANE COUCH		

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JUDGE:	HER HONOUR JUDGE DAWES	
WHERE HELD:	Melbourne	
DATE OF HEARING:	24 July 2020, 25 September 2020, 16 December 2020	
DATE OF SENTENCE:	4 February 2021	
CASE MAY BE CITED AS:	DPP v Couch	
MEDIUM NEUTRAL CITATION:	[2021] VCC 70	

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Arson
Legislation Cited: s.80(4) Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: 
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms M. Brown	Ms K. Ottrey, Solicitor for Public Prosecutions	
			
For the Accused	Ms M. O'Brien	Pica Criminal Lawyers	

HER HONOUR:
1	Shane Couch, you have pleaded guilty to one charge of arson, which occurred on 18 June 2019.  The maximum penalty for this offence is 15 years' imprisonment.  
2	You were 18 years old at the time of committing this offence.  
3	The summary of prosecution opening has been tendered.  It is agreed that it is an accurate account of events. A general summary of the facts is as follows:
4	The property that was destroyed was a residential premise in Melton that was rented by two of the victims, neither of whom were at home at the time of the incident. At around 11.45am, the partner of one of the victims attended at the address.  She saw you there and spoke to you, as you were leaving the property through the side gate which leads into the back yard.  At around 1.20pm, you returned to the address, carrying a green jerry can filled with petrol.  No-one was there. You entered the house and poured petrol onto the bed in the main bedroom, as well as onto some furniture in the lounge area, before setting fire to the items and leaving.  You were seen at approximately 1.55pm by a witness who thought you were acting suspiciously.  The witness observed smoke coming from the general area of the fire and immediately called emergency services.
5	The Melton CFA soon arrived at the scene.  They observed smoke that was extremely thick.  The fire posed a risk to the neighbouring residents, who were told to remain inside and close all their windows and doors.
6	In total, fifteen firefighters in four brigade vehicles attended and were able to extinguish the fire.  A crime scene was established and the police immediately commenced their investigation.  
7	A green five litre jerrycan was located in the rear yard of the house next door.  CCTV footage from 14 June 2019 was obtained, showing that you purchased the jerrycan, then filled it with petrol. Further CCTV footage from 18 June 2019 was located.  It showed you walking towards the premises at 1.21pm, running away in a northerly direction approximately 11 minutes later and then riding a pushbike away from the area. 
8	The property was extensively damaged and an assessment report has recommended that it be demolished.  The estimated cost of rebuilding is $252,000 excluding labour.  The contents of the premises were destroyed or extensively damaged by smoke.
9	The owner of the property has not provided a victim impact statement.  I am told that you accept that your criminal conduct is serious and that the damage you have caused is significant.  You attended at the house equipped with petrol, intending to commit arson. Fortunately, at the time you started the fire, no one was inside.  You were aware of that fact.  Further, you had no expectation or intention that you would benefit financially or in any way from your offending.
10	The two occupants of the premises had been lifelong friends of yours.  In the past, you had frequently visited them at this address.  You had been there on the day prior to this incident, catching up with one of them. You were motivated by a perception of wrongdoing, although you did not disclose this to either of the victims. You mistakenly believed that one of them was responsible for stealing your motorbike, which had recently disappeared.
11	One of the victims who resided at the address has provided a victim impact statement.  He has lost everything and estimates the cost of replacing his property to be between $15,000-$20,000. Items of sentimental value were destroyed, including photographs of his children.  He describes feeling extremely angry and hurt that a friend could do this to him.  
12	The other victim who resided there has not provided a victim impact statement. You agree that the estimated cost to replace his property is approximately $5000-$6000.  He too, has lost personal items including a book that he was writing.  
13	I have no doubt that your conduct has caused the owner of the property and your friends a great deal of stress and unhappiness. In particular, the loss of irreplaceable, sentimental belongings is bound to have a profound impact on the victims.
14	On 19 June 2019, you attended the Melton Police Station at 7.20pm.  You spoke to a police officer, confessing that you were there to hand yourself in “for burning down a house yesterday”. You were arrested, and a record of interview soon commenced.  At Questions 17-18 you said:                                    			 “I take full admission of doing it and, yeah, that's it”.  
15	At Question 27 you said:														 “I wasn't thinking clear at all…  I was off my treatment order for a little bit”.
16	You requested to speak to a lawyer and the record of interview was then suspended.  A mental health assessment was arranged and you were deemed to be fit for interview. It did not recommence, however, as the police were unable to find an independent third person.
17	You were charged and remanded in custody.  Your counsel submitted that your cooperation and your plea of guilty confirm that you have taken responsibility for your actions. When you handed yourself in to the police, there is no indication that you knew whether you were a suspect in this matter.  You immediately disclosed your offending.  
18	You entered your plea of guilty at a very early stage, on 12 September 2019.  It carries a significant utilitarian benefit, sparing the victims from giving evidence in court and facilitating the efficient administration of justice. Your plea of guilty is also relevant, given the delays in the running of jury trials, in light of the COVID-19 pandemic.  
19	At the request of your solicitor, you were assessed by consultant psychiatrist, Dr Nicholas Owens, on 29 April 2020.  He has provided a report to the court dated 13 May 2020 and an addendum report dated 13 July 2020. He interviewed you again and provided a supplementary report, dated 
25 November 2020.  
20	In the course of the initial assessment, you told Dr Owens that you feel terrible about what you did and that you are very sorry and ashamed of your actions.
21	You explained that your offending was as a result of a misguided belief that one of your friends had stolen your motorcycle, which had disappeared the day before this incident.  You reported to Dr Owens:								 “I was off my medication…  I wasn't thinking straight…  I had anger issues”.
22	These sentiments are consistent with the confession you made to the police on the day after the fire.  The prosecution accepts that this evidence of remorse is genuine.  I am prepared to moderate your sentence to reflect that.
23	You have admitted your criminal history, which consists of three prior appearances for consolidated pleas in the Children's Court.  At the time of this incident, you were subject to a good behaviour bond, imposed on 18 April 2019 for 12 months, with a condition that you engage with Mr James Mewett of Jesuit Social Services. You were in receipt of an Individual Support Package to address your homelessness at the time, as well as receiving support with mental health issues and substance misuse.  
24	You were remanded in custody on 19 June 2019, before being released on bail after seven days. Your undertaking of bail was supervised by Youth Justice. You were required to comply with strict conditions, including a curfew, a residential condition and conditions to engage with both Orygen Youth Health and Jesuit Social Services.  
25	You were remanded back in custody on 28 March 2020 after you assaulted your partner, a 42-year-old woman, who has three children.  You pleaded guilty to that offence and were sentenced to a term of imprisonment of seven days. A limited intervention order is now in place, where your partner is the protected person and you are the respondent.  This relationship commenced after the offence of arson was committed and is ongoing.  Your partner supported you when you were on bail, taking you to appointments to access treatment when she could.
26	Regrettably, your level of compliance with bail was inconsistent and your bail was revoked on 3 April 2020.  You have been in custody since that time and have now spent 313 days on remand for these offences.  
27	You were first referred to Orygen Youth Health in December 2016 for the case management of your mental health. You were then diagnosed with schizophrenia.  Your progress at Orygen was characterised by limited compliance with medication and attendance at appointments.  
28	On 24 October 2018 you were admitted to the Orygen Inpatient Unit under the Mental Health Act 2014. The Mental Health Tribunal made a three-month community treatment order on 5 December 2018 and you commenced monthly depot injections.  
29	After the community treatment order expired in February 2019, you refused to engage in further treatment.
30	In light of your age, you are no longer able to access Orygen.  Forensicare confirm that a referral to the Mid West Area Mental Health Service has been made to ensure your continuing mental health care.  
31	At the time of your most recent remand you were residing in rental accommodation arranged through Jesuit Social Services. Your possessions have now been placed into storage and you no longer have access to that accommodation.  While in custody, you have engaged with Mr Chris Farrell, an integrated dual diagnosis practitioner within the Connexions program of Jesuit Social Services.  You are prepared to re-engage with the program when you are released.
32	You were born in Bacchus Marsh on 31 March 2001 and grew up in the Melton area.  Your childhood was marked by significant trauma. Child Protection Services became involved with you when you were four years old, due to your mother’s alcoholism.  You say that you have little memory of your childhood. The DHHS records disclose that when they became involved with you, it appeared that you had been physically abused by your father. You were six years old at the time. Your parents separated when you were a child, and your father was deported to New Zealand when you were aged six or seven years. You have a family history of mental illness.  Your education has been limited and was disrupted by unstable parenting arrangements. You were expelled from secondary school in Year 9. There was no report that you had an intellectual disability.
33	From the age of 15 years you were placed in residential placements with family in both Australia and New Zealand and in multiple residential units. You have completed one year of a roof-tiling apprenticeship.  You were able to work and live independently in Melton, prior to the commission of this offence.  
34	Your relationship with your mother is not currently a supportive one, although she did take you to the police station on 19 June 2019. You maintain contact with your father, who still resides in New Zealand.  You have limited support in the community.  
35	You have a history of drug and alcohol use. You first smoked cannabis and drank alcohol at the age of twelve.  At the age of fourteen, you started to smoke cigarettes.  From the age of fifteen, you smoked cannabis frequently and started to use ecstasy.  You first smoked methamphetamine when you were residing in DHHS care. You have used cocaine and dexamphetamine tablets in the past.  
36	On 18 June 2019, you had ceased work.  You were using a quarter of an ounce of cannabis daily.  You admit that you were smoking cannabis the day before the offending, but not on the day of this incident.  At the time of committing this offence, you were experiencing auditory hallucinations although the voices you were hearing did not tell you to commit the offence. At that stage, you were not compliant with your anti-psychotic medication regime.  You are now in custody and compliant in this regard.  
37	Dr Owens states that you have a substance-use disorder involving alcohol, cannabis and stimulants, although this is in remission in the current custodial environment. You have developed some insight into your past substance use and its relationship to the management of your primary mental illness.  In Dr Owens' view, you require treatment for your substance-use disorder as your use of drugs, particularly cannabis and stimulants has contributed to a worsening of your symptoms of psychosis. You described mild symptoms of depression and anxiety, which may be consistent with an anxiety disorder.  
38	Dr Owens confirms that your primary diagnosis is of schizophrenia.  This underlying illness requires treatment for the foreseeable future.  In his view, the offending in this case occurred when you were having trouble thinking clearly, as well as having auditory hallucinations which had the effect of clouding your mind. You disclosed that you had not been taking anti-psychotic medication for at least three months prior to the instant offence and that you were using cannabis heavily.  In Dr Owens' view, both factors are likely to have worsened your psychotic symptoms at the relevant time. Dr Owens states that there is a significant relationship between your mental state and your criminal conduct.  The symptoms of untreated psychosis impaired your ability to make calm, rational choices and to think clearly. In his view, your psychotic symptoms made it difficult for you to exercise judgment about your behaviour.  
39	Your counsel submits that your mental illness reduces the overall moral culpability of your offending conduct.  Further, that the principles of general and specific deterrence, as well as punishment should be moderated in light of your diagnosis and the symptoms you were undergoing at the relevant time. The medical evidence also indicates that you are more vulnerable to the effects of imprisonment than an individual without a psychotic illness.  Further, that the custodial environment has had a negative impact on your mental health.
40	The medical evidence was not challenged and the prosecution agrees that the limbs of Verdins are enlivened.  I accept the opinions expressed by Dr Owens and that the principles of deterrence and punishment, as well as your moral culpability should be moderated.  The level of hardship you have undergone while in custody has increased and the most recent medical report confirms that imprisonment has had an adverse impact on your mental health. I am satisfied that all these factors should moderate your sentence.  
41	You committed this offence at the age of 18 and you are now 19 years old.  In light of the seriousness of your conduct, the mitigating effect of age and your relative youth is moderated, although it is still relevant when considering your prospects. The prosecution does not dispute that rehabilitation should be given significant weight in the sentencing discretion in your case and I will reflect this in the sentence that I impose.  
42	In my view, your prospects of rehabilitation present a complex picture. As I have already stated, when you were released on bail you were subject to conditions that were imposed to provide support and appropriate treatment in the community.  By early 2020, you were unable to successfully comply with those conditions and you reoffended while on bail. Your willingness to engage in treatment seems to fluctuate over time.  I am told that you are currently prepared to engage as required.  
43	In Dr Owens' view, an effective rehabilitation plan requires the management of your substance use and your mental state with treatment and supervision. You have ongoing schizophrenic symptoms, with limited insight into the requirement for ongoing medication.  Dr Owens believes that you may need a Community Treatment Order to enforce compliance with anti-psychotic treatment.  
44	At the time that the earlier assessment was performed by Dr Owens, you did not have a clear plan about where you would live, the degree of personal support you would receive, or where you would receive mental health and substance use treatment upon your release. In Dr Owens' view, this would leave you vulnerable to relapse into substance use, which would worsen your mental state, irrespective of any ongoing anti-psychotic treatment.  Further, should you be released into the community without that support, you are a high risk of violent reoffending. In order to reduce that risk, I consider that these factors need to be addressed.  
45	In particular, Dr Owens states that you require:
(i)	Long-term treatment by an area mental health service, possibly utilising a community treatment order.
(ii)	Engagement with a drug and alcohol treatment service.
(iii)	 A referral to the NDIS so that a package of care can be designed including psychological treatment, funding for an outreach support worker to provide day-to-day personal support and to assist your engagement with other services, including sourcing supported accommodation options. A referral to an appropriate employment agency would also be beneficial.  
46	As I have said, at the time of this incident, you were not compliant with your medication regime.  Community protection is an important sentencing consideration in this case.  In my view, intensive supervision is required when you are released into the community, in order to ensure its’ protection and to encourage your rehabilitation.
47	I take into account the measures taken by Corrections to deal with the COVID-19 pandemic have added to your hardship as a prisoner, particularly in light of your age, your mental health issues and as this is the first time you have been incarcerated for a lengthy period. The prosecution concedes as much.  
48	In light of the restrictions imposed by Corrections, you were unable to receive any personal visits from the time you were remanded back into custody.  This has increased the burden of your imprisonment. You have had occasional phone contact with your sister and exchanged letters with your partner.  The provision of vocational and educational programs has also been limited.  
49	I accept that the current time has been more stressful for you than it would be had you been in the community. This is not only due to your personal position of confinement but also to feeling more vulnerable to the possibility of infection from the virus, in light of your incarceration.  
50	These hardships justify an overall sentencing benefit.
51	I am aware that the prisons have been placed into lockdown at times and that you have been held in quarantine on two occasions over the last few months. I do not provide any specific sentencing benefit for this.  As I understand it, when this occurs, you may receive sentence reductions as a result of the administrative decision of the prison authorities.
52	As a consequence of your complex psychiatric issues and the restrictions imposed as a result of the pandemic, your plea hearing has taken more than six months to be finalised.  
53	It commenced on 24 July 2020 and was adjourned in order to obtain several pre-sentence reports, prior to the imposition of sentence.
54	Your counsel submitted on the first day of hearing that a CCO would be the appropriate disposition. This was in light of your age, your limited criminal history and in the context of your personal circumstances.  Further, that it should not be imposed in combination with a gaol term.
55	The prosecution position was that while a combination sentence would adequately address all sentencing considerations, a term of imprisonment is required and that a CCO on its own would not be appropriate.
56	You are not a registered client of DHHS.  In light of your mental health issues, a request was made to the Forensic Disability Statewide Access Service (DHHS) on 24 July 2020, to determine whether you would be eligible for a Justice Plan condition, as part of a Community Correction Order. In light of the COVID restrictions, DHHS were unable to conduct the disability assessment until 14 December 2020.  
57	A request to determine your suitability for a youth justice centre order was also made.  A pre-sentence report, dated 23 September 2020, has been provided. The author described that in the course of the assessment, you were able to reflect on your criminal conduct and the effect it had on the victims, expressing remorse.  
58	In the course of the assessment, you presented as having limited insight into your mental health and its correlation with your daily functioning and cognition. You indicated that your experience with the mental health system was negative, as you disagreed with your diagnosis of schizophrenia.  
59	The youth justice assessor took into account a number of factors, including:
(i)	Your conduct while on remand, where you have behaved in a threatening or violent manner on several occasions. 
(ii)	Your previous compliance with bail, supervised by Youth Justice. 
(iii)	Your ongoing attitude and compliance towards your mental health treatment. 
(iv)	Your limited motivation to engage with rehabilitative services. 
(v)	The serious nature of the instant offence.
60	You were not found to be suitable for detention in a Youth Justice Facility.  
61	Your case returned to Court for further plea on 25 September 2020.  
62	It was conceded by your Counsel on that day that a standard CCO would be unlikely to provide you with adequate support upon your release, given the then COVID restrictions. Your rehabilitation would be better assisted by a more comprehensive treatment provider.  In those circumstances, it was agreed that your case be further adjourned to determine your eligibility for a Justice Plan.  
63	In light of the recommendation made by Youth Justice, the prosecution maintained that a combination disposition was the most appropriate sentence.
64	At that time, you had been transferred to the AIRE Forensic Mental Health Unit within the Ravenhall Corrections Centre (‘RCC’) as a result of several recent incidents, including an attempt to harm yourself.  You were placed in quarantine from 10 to 18 September 2020.  You were involved in further incidents of verbal abuse towards staff at that time.
65	In the most recent report provided by Dr Owens, he noted that you were still detained in the Forensic Mental Health Unit at RCC.  His opinion is that your diagnosis of schizophrenia is well-established.  
66	After reviewing your Justice Health records, Dr Owens confirmed that while in quarantine in September, you commenced taking Quetiapine. You were reviewed by consultant psychiatrist, Dr David Thomas, after exhibiting abusive behaviour.  It appeared that you may have been undergoing a relapse of psychosis and your dose of Quetiapine was increased.  
67	In early October 2020, you refused to take some of your medication. Your behaviour became violent and your conduct has been the subject of a further criminal investigation.  You were transferred to the Thomas Embling Hospital on 12 October 2020.  You were returned to prison on 6 November 2020.
68	Dr Thomas assessed you as having a chronic functional diagnosis and paranoid schizophrenia.  He has recommended long term anti-psychotic treatment and intensive follow up when you are released into the community.
69	Records from Thomas Embling reveal that you have a very poor understanding of your mental health problems.  When you were discharged from hospital back to prison, you were prescribed anti-psychotic medication, being a monthly depot injection and a daily dose of Aripiprazole.
70	Dr Owens confirmed that you require ongoing treatment for your schizophrenia and he strongly recommends that you be referred to the Community Integration Program from Forensicare, before your release from custody, so that relevant community services can be established.
71	In his most recent report, he has confirmed that imprisonment has had an adverse impact on your mental health for several reasons:
(i)	Your capacity to cease taking anti-psychotic medication when in custody resulted in a relapse in your psychiatric issues. Your risk of harm to others escalated as a consequence of this, necessitating the use of the Mental Health Act to transfer you to hospital for treatment. Dr Owens writes that your mental state was recently more stable than it was when he assessed you in April 2020.
(ii)	Your psychotic symptoms have worsened in the prison environment.  This has not been helped by the time you spent in quarantine after you were remanded and when you were moved between prisons.  
(iii)	It is difficult to provide the more comprehensive range of services required to effectively treat schizophrenia in a prison environment, especially in light of your age and vulnerabilities.
72	These findings were again, not in dispute.  I accept Dr Owens' opinion and as I mentioned earlier, will moderate your sentence accordingly.  
73	A statement from DHHS, dated 22 December 2020, confirms that you have an intellectual disability and are eligible for a Justice Plan.
74	Your matter was further adjourned in order to develop a comprehensive plan for your release into the community.  A Justice Plan, dated 1 February 2021, has now been provided.  It recommends that you engage with a Disability Justice coordinator to access appropriate mental health services as well as undergoing treatment for substance abuse. The National Disability Insurance Scheme is also available to assist your disability related needs.  
75	On 27 July 2020, an assessment to determine your suitability for a corrections order was undertaken.  An updated assessment took place on 3 February 2021. While you were assessed as a high risk of reoffending, you were found suitable for a Community Correction Order.  The author determined that you require treatment for mental health and drug issues, as well as undergoing assessment for programs to address reoffending.
76	A Forensicare assessment was also conducted confirming that you have a severe mental health problem that requires ongoing treatment.  It recommends that this should be given priority in regard to the sequencing of corrections order conditions.
77	The availability of structured and intensive treatment upon your release is a significant factor to be considered, when regarding the protection of the community and your rehabilitation.  I agree that the provision of a network of supports provided by a CCO with a Justice Plan condition will be the best way to ensure that steps towards more positive prospects can be achieved. The treatment suggested by Dr Owens in his first report, in order to target your risk factors, is encompassed by this disposition.  You have agreed to engage and participate in the services to be provided by both the Justice Plan and the corrections order.  
78	I take into account the maximum penalty for this offence and current sentencing practices. I am satisfied that a combination disposition is appropriate, in light of the seriousness of your offending.  
79	Balancing all these factors as best I can, I sentence you to a term of imprisonment in addition to a Community Correction Order.
80	You are convicted and sentenced to ten months' imprisonment.  
81	I enter in the records of the court that you have served 313 days by way of pre-sentence detention.  
82	Further, you are convicted and to be placed on a Community Correction Order for a period of three years.
83	The conditions of the order are as follows.  That you undergo supervision, drug assessment and treatment, mental health assessment and treatment and assessment for programs to address offending behaviour.  I also include a condition that you be subject to a Justice Plan.  The maximum period for that condition is two years.
84	You are required to report to the Melton Community Corrections Office before 4 o'clock on 8 February 2021 and I confirm that that contact is to be made via telephone given the current COVID environment.  
85	While a declaration under s.6AAA is difficult to determine in this case, statutory compliance requires that it be made.
86	The declaration I make is a term of imprisonment of 18 months and a Community Correction Order with a Justice Plan.  
87	Were there any further orders sought, Ms Brown?
88	MS BROWN:  No, Your Honour.
89	HER HONOUR:  Is there anything further, Ms O'Brien?
90	MS O'BRIEN:  No, Your Honour.
91	HER HONOUR:  I will stand down and give you a chance to speak with your client.  I will just confirm before I leave the Bench that s.80(4) of the Sentencing Act indicates that the maximum period for a Justice Plan condition is two years, although this CCO is an order that will be made for three years with the other conditions to go for the balance of that period.
92	MS O'BRIEN:  Yes, Your Honour.  If Your Honour pleases.
93	HER HONOUR:  Thank you.  Mr Couch, I hope all goes well when you are released from custody.  I will now leave the Bench.
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