Director of Public Prosecutions v Ahern
[2017] VCC 1556
•20 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-16-02233
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK AHERN |
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| JUDGE: | HIS HONOUR JUDGE WISCHUSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 October 2017 |
| DATE OF SENTENCE: | 20 October 2017 |
| CASE MAY BE CITED AS: | DPP v Ahern |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1556 |
REASONS FOR SENTENCE
---Subject: CRIMNAL LAW
Catchwords: Arson; handling stolen good; possessing a prohibited weapon
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Sentence:Convicted and sentenced to a total effective sentence 6 years’ imprisonment with a non-parole period of 4 years. Section 6AAA declaration 8 years 6 months’ imprisonment with a non-parole period of 6 years 6 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McWilliams | Office of Public Prosecutions |
| For the Accused | Mr D. Edwardson QC | Grigor Lawyers |
HIS HONOUR:
1Mark Ahern, you have pleaded guilty to one charge of arson that endangered life, one charge of handling stolen goods and to a summary charge of possessing a prohibitive weapon, summary Charge 5. The maximum penalty for arson is 15 years' imprisonment, the maximum penalty for handling stolen goods is 15 years' imprisonment and the maximum penalty for the summary Charge is two years' imprisonment.
2The circumstances in which this offending took place are set out in detail in the summary of prosecution opening, Exhibit 1, the accuracy of which you accepted through your counsel. The circumstances are further illustrated by reference to the photographs which were Exhibit 2.
3In the early hours of Tuesday the 16 February 2016, you and an accomplice all but destroyed by fire the Kittens Gentlemen Club, a nightclub, located at 632 Glenhuntly Road in Caulfield South. In the weeks before, the nightclub had been the subject of a drive by shooting of the front window and a fire attack, but these were carried out by persons who remain unknown.
4The building in which the nightclub operated was owned by Guy Messina.
5Your movements before and after the fire was set were recorded on CCTV footage from the many cameras located on the shops and buildings in the vicinity of the nightclub. Some 20 minutes after all the staff had locked up the nightclub and left for the night, you and an accomplice parked a stolen BMW about 140 metres to the east of the nightclub. The use of the stolen BMW gives rise to Charge 2, handling stolen goods.
6You were then observed to walk around the block on a path that took you past the front of the nightclub and back to the BMW. From there, the BMW was driven to the rear of the nightclub and it was left with the engine running in the lane. One of you smeared silicone gel on a CCTV camera and you then used the adjoining property, 634 Glenhuntly Road, to access the roof of the nightclub. Once on the roof, you removed a large vent and threw it into the yard of 634, before climbing into the nightclub through the hole so created.
7The fire was set in a combined kitchen and store room area that contained a large amount of flammable material, which was ignited after petrol had been spread around. A large fire ensued and the building was all but destroyed. Charge 1, arson.
8The two of you left the way you had entered. At some stage during your entry or exit from the building, you suffered a large laceration to your head which was bleeding. As a result, as you climbed the fence of 634 to return to the BMW in the lane, you left blood on the fence and on a wheelie bin. DNA analysis later established that the blood was yours.
9The fire was such that residents in the adjoining residential properties had to be evacuated for their safety and 11 firefighting appliances and 43 firefighters were dispatched to fight the fire and protect the adjoining buildings. They were later supplemented by a further four units and another 14 firefighters.
10The nightclub building was extensively damaged as the photos in Exhibit 2 show and extensive repair work was required to it, as well as to the neighbouring buildings. The loss suffered by the operators of the nightclub was $868,000, and by the owner of the building, the loss was $500,000.
11The BMW was abandoned in Hallam and from that location, you were soon collected by another vehicle which took you to the address of a nearby associate. From there, you contacted your then partner who collected you at 5.20 am.
12Later that morning, you attended the clinic of a plastic surgeon, and after giving a false name, date of birth and address, you managed to obtain treatment to the laceration you had sustained to your head in the course of committing the arson. You informed those treating you that the laceration was a result of a motorbike accident.
13On 17 February 2016, the police executed a search warrant at your home in Berwick and there, you were arrested. A number of items were found including a pair of gloves that matched those found in the abandoned BMW and four red plastic jerry cans. Also located was a set of black knuckledusters and it is the possession of these that gives rise to the summary Charge 5, possession of a prohibited weapon.
14After your arrest, you made a no comment record of interview. You have been in custody since and, including today, you have been in custody in relation to these charges for 611 days.
15Your plea was entered at a very early stage, before a committal hearing took place.
16You have admitted your criminal record which shows that you have been before the courts on four sentencing occasions, the earliest of them in May of 2012. Of your prior offences, the most serious were dealt with in September 2012 when you received an aggregate sentence of 12 months' imprisonment, of which you served six months, on charges that included reckless conduct endangering serious injury and possession of an unlicensed weapon. The other court appearances have resulted in fines for offending that has included, relevantly, intentionally damaging property.
17You are now 33 years of age.
18Mr Ahern, I state to you that I have taken into account all the matters raised by your counsel in the course of the plea, during which he spoke to detailed written submissions that were tendered. I have taken those matters into account in mitigation of the sentence that is to be imposed upon you today and they include the following.
19Your plea of guilty. Entered at a very early stage, I take your plea to be evidence of your remorse and acknowledgment of your wrongdoing. By your plea, you have facilitated the course of justice and saved the community and the many witnesses the time, stress and cost of a trial. You are entitled to have these matters taken into account in mitigation of penalty and I have done so.
20On the subject of remorse, I have taken into account the statement you read from the dock in the course of the plea hearing. In it, you sought to explain your offending by reference to other things that were going on in your life, and to apologise to the owners of the nightclub, and to acknowledge the grief your past behaviour had caused the law-abiding members of your family, and to mark out your realisation that you have reached a major turning point in your life. The extent of the remorse so expressed is, in my view, somewhat tempered by the fact that you made no attempt whatever to explain to those you damaged and frightened, the criminal purpose for which you all but destroyed the business and the building.
21I have taken into account your relatively limited history of offending and that there are no subsequent or pending matters.
22I have taken into account your background and personal circumstances. They are set out in some detail in the reports tendered, most recently in the report from Dr Anthony Cidoni, consultant psychiatrist, Exhibit 4.
23You grew up in a rural environment where you were a happy and adventurous child. You worked on the family farm from a very early age.
24At school, you were a somewhat difficult student and you were bullied at the Catholic primary and secondary schools you attended, particularly due to your weight. In secondary school, you encountered some difficulties with the school administration over your behaviour before completing Year 10 and then studying hospitality at TAFE where you did very well. Whilst completing your education, you worked in agricultural pursuits with your father.
25Despite your history of substance abuse and this offending, you still have the support of your long suffering parents, who in recent times have had their own health problems. On the plea, they provided a detailed letter of support to the court, Exhibit 5, and I was informed also that you still have the support of your sister.
26As far as employment is concerned, you worked for about five years in hospitality after leaving TAFE. Then for five years as a tow truck driver, for three years as an owner driver and then for 18 months as a courier. In August of 2015, you suffered a workplace injury to your shoulder and you were off work for about six months. In February 2016, you were injured in a motorcycle accident and you have not worked since.
27Socially, you were a member of the Comanchero's Bikie Club and had been the treasurer of its Melbourne chapter, though this association interfered with your domestic and family circumstances.
28You have been engaged in four significant relationships in your adult life. The most recent of them ended quite recently because of your continued incarceration.
29You have a lengthy history of substance abuse, particularly amphetamines. This began with small amounts on weekends, but by the time of your incarceration for these offences, you were using heavily, up to one and a half grams a day. Your substance abuse history also includes significant cocaine use, the weekend use of considerable amounts of ecstasy and more recently, GHB. Alcohol and cannabis have not been much of a problem.
30Although not diagnosed or treated when you were a child, five years ago, a psychiatrist, Dr Perera,[1] made a diagnosis of ADHD for which you took medication for a short period and gave up because you did not like its effects. Dr Cidoni found it difficult to comment on your past mental health status because of the degree of substance abuse, which you told him was something you had approached with “bravado”. You had experienced some symptoms of paranoia whilst using amphetamines.
[1] Medical reports from the Berwick Lodge Medical Centre and Dr Perera prepared in 2011 and 2012 document the apparently brief treatment you underwent for ADHD.
31It was Dr Cidoni's opinion that you have a history consistent with ADHD which should be treated and which bears upon your past history of substance abuse. He was uncertain whether you had a mood disorder in the past, but he thought it more clear that you presently suffer from depressive symptoms as a consequence of the ending of your most recent relationship. He noted you had in the past experienced amphetamine induced psychotic symptoms and that substance use and bikie club involvement had been a way of dealing with your low sense of self-esteem and the need for a sense of belonging.
32In the course of the plea, it was submitted on your behalf that now you have been free of amphetamines for the nearly two years you have been in custody, that you have reached a crossroads in your life where the choice you face is whether to fall back into settled criminal habits, or to seize the opportunity when released from custody to break the cycle and return to the community as a non-offending, drug free and useful and productive member.
33It was submitted that your age, limited prior convictions, plea of guilty and the period of contemplation you have had and will have available to you in prison should lead me to conclude that your prospects of rehabilitation are reasonable. To this end, I was urged to fix a longer than usual non-parole period to prevent the sentence being crushing in effect, and to foster your rehabilitation under supervision. I must say that given the length of your history of substance abuse, the nature of your past offending and your failure to change your habits following a period of incarceration, and your mature age have led me to conclude that your prospects of rehabilitation are no better than cloudy.
34Now, against the matters to be taken into account in mitigation of penalty must be balanced the fact that this was a serious example of the crime of arson. The circumstance in which it occurred make it plain that it was carefully planned and executed by you, and that it was intended to result in the destruction of the building and the business that operated within it.
35The fire was such that the lives of the residents in the buildings on either side were endangered, and no doubt, the residents who had to be evacuated were put in fear.
36The criminal purpose of setting the fire has never been explained.
37Having regards to your mature age and past history and the nature of this offending, both general and specific deterrence must be given weight in the sentencing consideration, as must the need to manifest the community's denunciation of your conduct and to otherwise impose just punishment.
38Mr Ahern, I state to you that I have taken into account all relevant sentencing principles and all the matters raised on the plea in arriving at the sentence I am about to impose.
39On Charge 1, arson, you are convicted and sentenced to a term of imprisonment of five years and six months.
40On Charge 2, handling stolen goods, you are convicted and sentenced to a term of imprisonment of 12 months.
41On the summary Charge 5, possessing a prohibited weapon, you are convicted and sentenced to a term of imprisonment of one month.
42I direct that six months of the sentence imposed upon Charge 2 be served cumulatively upon the sentence imposed upon Charge 1, and that all other sentences be served concurrently.
43That makes a total effective sentence of six years.
44The non-parole period is a minimum term that justice requires you to serve, having regard to all relevant circumstances that exists and for that reason, it is not fixed automatically. All relevant factors and sentencing principles to be taken into account, and I have to consider when you should be eligible for mitigation of confinement and in turn, rehabilitation under conditional supervision.
45In all the circumstances, I direct that you serve a minimum term of four years before becoming eligible for parole.
46As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody including today is 611 days, which is to be reckoned as time already served under this sentence, and I direct that such be noted in the records of the court.
47Pursuant to s.6AAA of the Sentencing Act, I state that had you been found guilty of these offences after a trial, I would have sentenced you to a term of imprisonment of eight years and six months with a non-parole period of six years and six months.
48Now, there is an application made by the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act. I intend to make an order that pursuant to 464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of saliva samples in accordance with Subdivision (30A), Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
49The reasons for making the order will be published on the order which I will sign. I must inform you as a matter of law, that a member of the police force may use reasonable force to enable the procedure to be conducted.
50I propose to make the forfeiture order. Are there any other matters?
51COUNSEL: No, Your Honour.
52HIS HONOUR: Will you please remove the prisoner? Ten o'clock.
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