DDP v Smith

[2022] VCC 1177

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02296
CR-20-01423

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE LEE SMITH

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Wodonga
DATE OF HEARING:	21 July 2022
DATE OF SENTENCE:	21 July 2022, 27 July 2022
CASE MAY BE CITED AS:	DDP v Smith
MEDIUM NEUTRAL CITATION:	[2022] VCC 1177

REASONS FOR SENTENCE
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Subject: Burglary – Arson – Persistent Breach of a Family Violence Intervention Order.

Catchwords:              Guilty verdict after trial – set fire to estranged partner’s house – delay in prosecution – COVID benefit of plea

Legislation Cited:  Sentencing Act1991 (Vic).

Cases Cited:DPP (Vic) v Derby (2007) 171 A Crim R 302; R v Cotter [2011] VSCA 240; Luciano v R [2015] VSCA 173;

Sentence:                   4 years and 10 months imprisonment, minimum non-parole period of 3 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Nibbs	Office of the Director of Public Prosecutions
For the Accused	Mr M. Page	David Barrese & Associates

HIS HONOUR:

Jesse Lee Smith,

1On 7 July 2022, after a trial, a jury convicted you of:

·        One charge of burglary (Charge 1 on Indictment L10148103.4A); and

·        One charge of arson (Charge 2 on Indictment L10148103.4A).

Circumstances of offending

2You were in a relationship with Rachel Donoghue[1] and lived with her, at her home at Wodonga, for around two years. You separated in October 2019, after you had damaged her property and threatened to kill her.

[1] A pseudonym.

3In November 2019, you resumed contact with her and sometimes stayed overnight at her home.

4On New Year’s Eve in 2019, you exchanged Facebook messages with her. You asked her whether she was going to “Paddy’s”, an Albury hotel.[2] The two of you talked about meeting up later on.

[2] Trial Exhibit A.

5Later that that evening, Ms Donoghue went to Paddy’s with two girlfriends. She waved when she saw you in the queue of people waiting to get inside. Inside the venue, at different times, the two of you kissed and danced. Later, while you were having a smoke, you got angry and abused her. She walked away. Later again, you approached her, showed her your phone’s broken screen, accused her of causing the damage and threatened her. She called security. You left. She stayed on with her friends.

6Around 3:30 AM, neighbours saw Ms Donoghue’s house ablaze and called emergency services.

7Subsequently, an arson investigator inspected the house which was essentially destroyed by fire. In his opinion, the fire was started in the main bedroom by ignition of bedding and the mattress. There was no sign of a source of accidental ignition. In his opinion, the fire was probably lit by a match or cigarette lighter.

8CCTV footage showed you leaving Paddy’s around 2.45 AM and walking south.[3]

[3] Trial Exhibit H.

9At 3:01 AM a local taxi driver picked up a young man at South Albury and drove him to Wodonga, dropping him off less than 200 m from Ms Donoghue’s home.

10The prosecution case was that young man was you. And you walked to Ms Donoghue’s home, broke in and lit the fire.

11On 3 January 2020, when Ms Donoghue accused you of lighting the fire, you denied it.[4]

[4] Trial Exhibit B.

12You maintained your denial before the jury.

13The taxi driver remembered his passenger and identified you from a photo board.

14According to Ms Donoghue, you had made previous threats to burn down her house.

15Early on New Year’s morning, you sent her abusive and threatening messages; and some friendly ones. She did not respond. At 3:20 AM, minutes before you lit the fire, you wrote “your (sic) nothing but a liar”.[5]

[5] Trial Exhibit A.

16In the months previous, you had demonstrated a pattern of behaviour to damage Ms Donoghue’s property when you were angry.

17In July 2019, you punched hole in a wall and cracked a wardrobe when you threw a television remote at it.

18On 13 October 2019, after an argument with Ms Donoghue, when she left with her daughter, you sent her abusive messages, threatening to smash her things in the house. You damaged photos and prints in her bedroom and broke her computer screen.

19In my view, your conviction was inevitable.

Additional Indictment

20After the trial, you pleaded guilty to two charges of persistent contravention of a family violence intervention order within a 28 day period (Charges 1 and 2 on Indictment L10148103.4C).

21On 14 October 2019, after you had damaged Ms Donoghue’s things and threatened her, you were served with a family violence intervention order which prohibited you from contacting or communicating with Ms Donoghue.

22According to Ms Donoghue, in November 2019, the two of you started messaging again. Initially you used the name “John Doe” but she changed it to another fictitious name.

23Some of your messages were abusive and threatening.

24Contacting her through Facebook messenger on:

(a)   17 November 2019;

(b)   25 November 2019;

(c)   26 November 2019;

(d)   between 26 November 2019 and 14 December 2019; and

(e)   15 December 2019;

constitutes the persistent contravention charged in Charge 1 (between 17 November 2019 and 15 December 2019).

25Contacting her through Facebook messenger on:

(a)   17 December 2019;

(b)   18 December 2019;

(c)   between 18 December 2019 and 7 January 2020; and

(d)   8 January 2020;

constitutes the persistent contravention charged in Charge 2 (between 16 December 2019 and 8 January 2020).

Victim Impact Statement

26Ms Donoghue read her victim impact statement to the court.[6]

[6] Plea Exhibit A.

27During your relationship with her she supported you financially and tried to make you a better person. You responded by burning down her house.

28Other than the clothing she and her daughter were wearing, she lost everything. While it appears she had home and contents insurance, she has spent thousands of dollars replacing clothing, toys and crockery. Some items, keepsakes from her daughter’s birth and infancy, and from her father, who died shortly before this fire, cannot be replaced.

29Additionally, the psychological trauma of your crimes has been profound. She is sad, fearful and feels isolated. She has needed ongoing counselling to help her cope with her distress. She lives with the fear you will carry out the threats you have made to kill her.

Arrest and Remand

30On 17 January 2020, police arrested you and charged you with arson and other offences. You were remanded in custody.

Criminal Record

31You have admitted a criminal record which includes a number of convictions for criminal damage.

32Your early Children’s Court appearances, in 2011 at Albury and Corowa, for burglary, theft and destroy property, resulted in a bond and probation orders.

33On 19 August 2013, at Batemans Bay, you were sentenced to youth detention for assault, burglary and destroying property.

34On 8 July 2015, at Eden, you were sentenced to a further period of youth detention for criminal damage, burglary and other offences.

35On 13 July 2016, at Bega Local Court you were sentenced to 7 months imprisonment with a non-parole release period of 3 months, for assault and criminal damage.

36On 14 October 2019, at Wodonga Magistrates Court, you were convicted and fined $1250 on charges of making threat to kill, intentionally damaging property and using a carriage service to harass, arising out of the episode at Ms Donoghue’s home on 13 October 2019.

Personal Circumstances

37You were born in June 1997. You are an aboriginal man through your maternal bloodline.

38You were 22 years old when you offended. You are now 25.

39Your counsel, Mr Page, told me you are the oldest of 8 children.

40You were born at Pambula. Your father was a bricklayer. Your family followed him, with his employment, around Australia. You lived at Waigin in Western Australia, in your early primary school years. Then your family moved to Townsville, Queensland, where you completed Grades 5 and 6. You lived at Corowa, NSW, for a time and then Eden, NSW.

41I was told your father was a violent alcoholic and you bore the brunt of his temper. When you were 16, and big enough, you started to push back.

42I was told your father was jailed for 7 months after an assault on your younger brother, Isaac.

43At the end of Year 10, you left school and home, and lived in Eden with mates and a girlfriend, for a couple of years.

44When you were 20-years old, you reunited with your family, who had moved to Albury in New South Wales. By this time your parents had separated.

45In Albury, you have worked as a glazier, a truck washer and a weatherboard fabricator.

46In mid-2017, you met Ms Donoghue.

47A friend wrote a reference for you.[7]

[7] Plea Exhibit 2.

48She has known you for around 7 years. She knows you as a good person who had a difficult upbringing. When she met you, you were working and renting your own home. You didn’t drink or use drugs.

49She wrote you feel guilty over the death of your younger brother, Isaac, who passed away on a motorbike on 21 March 2022. Sadly, you were not able to attend his funeral. According to her, in prison, you seem to be losing hope but, on your release, you aim to get a full-time job and move on with your life.

50Since you have been imprisoned she has spoken to you about the offences. She wrote, “he just seems confused about the whole process as he stresses he didn’t commit the crime, he has told me he feels sorry for [Rachel] losing her home”.

51Your mother wrote a letter on your behalf.[8] She confirmed your father was an abusive alcoholic and the trauma was especially hard on you as the oldest child. According to her, you have strong family and community support.

[8] Plea Exhibit 3

52She lives at Tumut, NSW, with her new partner and your two youngest siblings, and will have you at her home to live when you are released.

53You were working when you offended and she is confident you will quickly get work again.

54In prison you have completed an aboriginal men’s cultural healing program, drug and alcohol courses and behavioural programs.[9]

[9] Plea Exhibit 4.

55Recently, you have engaged in a program which it assists indigenous prisoners with employment on release.

56There have been no work opportunities for you in prison. There have been no visits and you have endured times in isolation for quarantining.

Defence Submissions

57In oral and written submissions[10], Mr Page relied on the following factors in mitigation of penalty:

(a)   firstly, your guilty plea in relation to the family violence offences;

(b)   secondly, the COVID-19 related hardship of prison; and

(c)   thirdly, the delay in prosecution.

[10] Plea Exhibit 1.

58He told me you have no history of illicit drug use but accepted your behaviour on New Year’s Eve showed your anger increased with your consumption of alcohol.

59While he accepted I must be guarded about your prospects of rehabilitation, he submitted your good work record and family support are positive signs for your reformation.

60He submitted I should impose upon you sentence of imprisonment with the opportunity for parole release in the near future.

Prosecution Submissions

61Mr Nibbs, who appeared for the Director of Public Prosecutions, submitted your crime of arson was objectively serious considering:

(a)   it was an act of domestic violence when there was a family violence intervention order in place for Ms Donoghue’s protection;

(b)   there were earlier incidents when you damaged her property at her home; and

(c)   your conduct was the carrying out of your previous threat to burn her house down.

62He submitted, because of the seriousness of your offending and your history of relevant past offending, a significant sentence of imprisonment should be imposed.

63He accepted COVID-19 related restrictions has made prison harder for all prisoners.

Consideration

64Arson, as the maximum penalty of 15 years imprisonment demonstrates, is a serious crime.

65You intentionally damaged Ms Donoghue’s property. The damage caused was substantial. Her home was destroyed. She has also suffered psychologically from the trauma. You lit the fire in reaction to your anger against her. Her continuing fear of you is understandable.

66An offender who directs violence towards a former partner, by arson, should expect stern punishment.[11]

[11] DPP (Vic) v Derby (2007) 171 A Crim R 302, R v Cotter [2011] VSCA 240, Luciano v R [2015] VSCA 173.

67I will moderate your sentence to take account of:

(a)   your guilty plea in relation to the family violence offences;

(b)   the additional hardship of prison for all prisoners during the public-health pandemic; and

(c)   the delay in prosecution, not attributable to you, which has caused you anxious uncertainty about your future.

68I do not lose sight of your prospects of rehabilitation.

69While you have a history of property and violence offending and, by maintaining you did not light the fire, you have not shown any remorse for your wrong-doing, you are still a relatively young man with a good work record and family support.

70I will moderate your individual sentences and your minimum non-parole period to give you the opportunity to advance your rehabilitation in the community, under parole supervision, in the not-too-distant future.

71As you are to be sentence for several crimes, I have had regard to the totality principle to ensure your sentence is a proper measure of your overall criminality.

72Your entry into Ms Donoghue’s home forms part of the arson offence. To avoid double punishment, I will order you serve your burglary sentence concurrently with the arson sentence.

73In relation to the family violence intervention order offences, I take into account some of your messages were abusive and threatening, others were not. Ms Donoghue’s acceptance of the communications is no defence but it is a factor to consider in assessing the objective gravity and your moral culpability, which in the circumstances, I assess to be relatively low. In the circumstances I will order you serve the prison terms I impose for the family violence offense, concurrently with all other sentences.

74Mr Smith, by the sentence I impose I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

75Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   On the charge of arson, you are convicted and sentenced to 4 years and 10 months imprisonment. This is your base sentence.

(b)   On the charge of burglary, you are convicted and sentenced to 12 months imprisonment.

(c)   On each of the charges of persistent breach of a family violence intervention order, you are convicted and sentenced to 3 months imprisonment.

76I order each of the sentences I have imposed on the burglary and persistent breach of a family violence intervention order charges be served concurrently with the sentence have imposed on the arson charge and on each other.

77Your total effective sentence is 4 years and 10 months imprisonment.

78I order you be eligible for parole release after you have served 3 years and 4 months of your sentence.

79Pursuant to section 18(4) of the Sentencing Act, I declare you have already served 922 days by way of presentence detention.

80While there is some artificiality in the process, in relation to the family violence intervention order offences I declare, but for your guilty plea, I would have sentenced you to 4 months imprisonment on each charge and ordered one month on each charge be served cumulatively on your base sentence.

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