STATE OF TASMANIA v EMMA JANE FISHER 6 AUGUST 2019
COMMENTS ON PASSING SENTENCE BRETT J
Ms Fisher has pleaded guilty to one count of arson.
The crime was committed on 8 May 2018. Ms Fisher set fire to the Housing Tasmania unit in which she lived. She had resided there as a tenant for approximately three years but her tenancy had been recently terminated. I have been informed today that it seems that she had given notice of termination because of a proposed move to a residential facility, but the tenancy had not been legally terminated as at the time that this crime was committed.
Ms Fisher has a complex psychological history. She was abandoned by her parents into institutional care at the age of two and claims to have been abused during her childhood. She has a low IQ, which, according to a psychologist Dr O’Donnell, manifests in a mild intellectual disability. There is no evidence that she suffers from major mental illness, but she has been diagnosed with borderline personality disorder. This disorder, in her case, is characterised by a long history of emotional instability, impulsivity and self-destructive behaviour. She also suffers from a number of serious physical health conditions. The severity of her psychological condition, combined with her poor physical health, means that she has difficulty living independently in the community and requires significant support and care. However, she has in the past posed a significant challenge to care providers because of behaviour which tends to sabotage care arrangements and creates risks to her welfare and the welfare of others, including those caring for her.
It is this background, and, in particular, her psychological presentation which provides the context for the commission of this crime. On the day before the crime was committed, Ms Fisher had gained possession of a fuel can and had told an employee of Drug and Alcohol services that she intended to set herself on fire. Police responded immediately by attending and searching the unit, but she had hidden the fuel can and it was not located by police during their search. They did, however, take her to the Launceston General Hospital for a mental health assessment. The assessment did not find any evidence of acute mental illness and she was released. She lit the fire the following day. She did so by pouring fuel from the fuel can over the floor and furniture of the unit and setting it alight with a cigarette lighter. Although she had expressed the intention to commit suicide, she quickly exited the burning unit and subsequently expressed surprise at the intensity of the flames. Ms Fisher told Dr O’Donnell that she had not wanted to die but had lit the fire as a means of securing further care, and as a reaction to the circumstances of the end of her tenancy.
The Fire Service attended the fire. Despite the efforts of firefighters, the unit was completely destroyed. The value of the loss has been estimated at $250,000.
Ms Fisher is 53 years of age. She has no prior convictions at all. As Dr O’Donnell describes in her report, the borderline personality disorder is not a mental illness. It is a descriptive condition which captures the various personality traits, which are inherent in the way Ms Fisher lives and conducts her life. When these traits are combined with her low IQ, they provide some explanation for her problematic behaviour. It seems clear to me that Ms Fisher has become entrenched in conduct that reflects these problematic personality traits, and that this entrenched behaviour severely impedes her capacity to function independently. She is recognised as not having adequate capacity to deal with emotional distress and other life stressors, and reacts in an impulsive and chaotic way to such issues. She has required intensive support, but I reiterate that such support has been mostly withdrawn because of her behaviour, although I do acknowledge what I have been told today about support that will be provided upon her release from prison. The personality disorder, by definition, cannot be cured and Dr O’Donnell describes Ms Fisher’s condition as chronic. Dr O’Donnell also considers that the Verdins principles are applicable in that her personality disorder “impairs her ability to exercise appropriate judgment, impairs her ability to make calm and rational choices, and contributes causally to fire-setting ideation and action”. Further, her conduct since her incarceration has included ongoing self-harm which has necessitated her being held in a part of the prison not designed for extended stays, and inappropriate for a female. I am told that upon her release into the community, it is anticipated that support will be made available for her to receive 24 hour supervision and care.
From an objective point of view, Ms Fisher has committed a very serious crime, which carried with it significant risk of harm to herself, to firefighters and a general risk arising from the possibility of the fire spreading to other units in the complex. Further, the crime resulted in the destruction of public housing, which is a scarce resource in great demand for the purpose of housing vulnerable and disadvantaged people.
These factors suggest that general deterrence is a significant sentencing consideration. The question which arises is the significance for sentencing purposes of Ms Fisher’s background and, in particular, her psychological presentation. The borderline personality disorder and its effects, and her intellectual capacity and general history are of course relevant to a consideration of her personal circumstances. They explain the limitations on her cognitive capacity, which contributed to the poor decision-making and impulsivity which led to her lighting the fire. I have no doubt that she did not think through or even care about the consequences, either to herself or to others. However, I do not think that the existence of the borderline personality disorder, leads to the conclusion that she has suffered from an impairment of mental functioning which has causally contributed to the commission of the crime, in the sense that it reduces her moral culpability and the significance of general deterrence. Although her reasoning capacity was simplistic, and her ability to fully appreciate the consequences of her actions impaired to some extent by her intellectual capacity, she has clearly done something which she knew was wrong, as a means of expressing her dissatisfaction with the decisions made by others, and in the hope of achieving some benefit for herself. As Dr O’Donnell points out, she successfully hid the fuel can from police and acted promptly to remove herself from danger when the fire started. Further, her actions were not impulsive. There was a relatively lengthy period of planning and premeditation. For these reasons, her condition does not reduce her moral culpability to any significant extent, and general deterrence has a role to play in the assessment of sentence.
However, she should receive credit for the utilitarian benefit of her early plea of guilty. Further, it is a relevant consideration that her condition and its consequences have resulted in her spending time in prison in conditions which are far from ideal and have undoubtedly made, and will make, any further time in prison more difficult than would normally be the case. A complex question in this case is the extent to which the sentence should address specific deterrence. On the one hand, her psychological functioning would suggest that there is a risk that she will act in an impulsive and dangerous way again in the future, and there is a need to address community protection. This risk is exacerbated by the lack of convincing evidence of remorse or insight. On the other hand, despite her psychological history, the lack of prior convictions must be taken into account. Further, it is apparent that there will be provision of intensive support for her when she returns to the community. I am satisfied, particularly having regard to Dr O’Donnell’s report, that Ms Fisher has the capacity to be deterred by appropriate sentencing options, including by the suspension of part of the sentence and the consequences of a breach of the terms of suspension. The lack of a criminal record demonstrates that she has the capacity to control her conduct sufficiently to avoid the commission of crime. I conclude that while the crime deserves the imposition of a sentence of imprisonment, it is appropriate to partially suspend the sentence, in order to reflect her lack of prior offending and her plea of guilty, and to provide an incentive for her not to reoffend in the future.
Ms Fisher you are convicted of the crime to which you have pleaded guilty and are sentenced to a term of 2 years’ imprisonment, which will be backdated to 13 October 2018, to take account of time spent in custody. The final 12 months of the sentence will be suspended for a period of 2 years on the condition that you are not to commit another offence punishable by imprisonment during that period. This means that if you commit any offence which has the potential penalty of a period of imprisonment – and you lawyer will tell you that that includes most offences on the statute books – within the next 2 years, it is very likely that you will be required to serve the balance of the period in prison. You are not eligible for parole in respect of the custodial part of the sentence, but I do observe that remissions may be applicable.
I make a compensation order in favour of Housing Tasmania, in a sum to be assessed and I adjourn that assessment sine die.