Director of Public Prosecutions v Archer

[2016] VCC 1522

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00948

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS ARCHER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 October 2016
CASE MAY BE CITED AS:	DPP v Archer
MEDIUM NEUTRAL CITATION:	[2016] VCC 1522

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Manova
For the Accused	Mr I. Crisp

HIS HONOUR:

1Nicholas Archer, you have pleaded guilty to 12 counts of arson, three counts of reckless endangerment, one count of criminal damage, four counts of sabotage and one uplifted summary matter of dealing with the proceeds of crime.

2Those crimes carry maximum penalties of 15 years, five years, ten years, 25 years and two years respectively.

3You are now 28 years of age.  You pleaded guilty at the earliest reasonable opportunity and have purported, at least, to express a degree of remorse.  You must also get the utilitarian benefit of what would have been an extremely complicated set of trials. 

4You also get the benefit, as far as that plea of guilty is concerned, in that the Crown case against you as it stands, has been based mainly upon admissions that you made when speaking to police.  I am unable, obviously, to determine what other evidence may have become available had police had to investigate fully, but you clearly must get a significant benefit for that.

5Also, insofar as these matters are concerned, you took police and did re-enactments and you have been co-operative in a number of ways.  The co-operation, in your situation, is of importance particularly in regard to Charges, 2, 3, 6, 19 and 20 and I have taken those matters into account.

6You have no prior convictions.  However, the first of these matters, of course, occurred in 2009 so the offending extended over a period of something like six years. 

7It is also important, in your circumstance, to be aware that it would appear that your arrest was what stopped the offending.  There was no wilful desisting from it that I can ascertain.  At the time of your arrest you would seem to be lighting a fire about once a month.

8You fall on Charges 5, 9, 10, 14, 15, 16, 17, 18, 19 and 20 to be sentenced as a serious arsonist. 

9I am aware that the provisions provide that, in that situation, community protection becomes the principal sentencing purpose, and in your situation that would be the case in any event.

10I am aware that the sentences are to be cumulative unless otherwise ordered.  This is a situation where totality demands that there has to be a significant element of concurrency although I will be giving cumulation for almost every charge.

11The Crown do not seek a disproportionate sentence, and with the amount of maximum terms available here, no such sentence would be required, in any event. 

12I direct that these matters be entered on the court register.

13The seriousness of the offending was described in your counsel's submissions as extreme and I certainly would not resile from that word.  I can safely say I believe that, in many years as a criminal lawyer and as a judge, I do not think I have seen a rampage from an adult approaching what you did, over that period of time.

14All of the offending, effectively, apart from Charge 2, involves a breach of trust of one form or another.  You were employed by the Railways and you breached their trust.  You were a volunteer at Steamrail and you breached their trust.  You also breached their trust by burning the fire museum.  You are a member of the CFA and betrayed their trust. 

15Having been in the Railways, having been interested in the Railways, and having been in the CFA, it is clear that you would have been well aware of what the consequences would be of the actions that you undertook. 

16A summary of the offending is contained, obviously, within the Crown brief and I will refer to that.  This is not a situation when I think that simply tendering it and allowing it to be read in that way is adequate. 

17The extreme aspect of your offending, as I have described, does not seem to have dawned on at least one of the professional people who have examined you, and I think in these circumstances, I should go through it in some detail and make it clear just what it is that you are being sentenced for. 

18Firstly, insofar as the arsons are concerned, I refer to the decision of Mr Justice Coghlan in the matter of Sokaluk.  That was obviously a matter of different forms of arson in that people were killed, but His Honour said - and I think this is pertinent to virtually all arson cases:

"The event was terrifying for all involved in the fires, whether directly, or otherwise.  The crime of arson always exposes the emergency services personnel to risk but this fire did so quite dramatically".

19He then describes how appliances there were burnt. He talks about the self-sacrifice and courage of those involved in fighting fires and he points out that in those circumstances, even though you are being sentenced for property damage, there is a much greater context in which all this occurs.  As he pointed out to Mr Sokaluk:

"You are not to be sentenced separately for those sorts of matters but it provides a background for what I am about to describe". 

20In May 2008 you commenced employment with Metro Trains as an equipment examiner's assistant and you were working as part of the Metro Disaster Recovery Team based in North Melbourne.  You were often required to travel to different areas along the suburban rail system. 

21In 2009 you were a volunteer at the Newport Steamrail Club and you attended there regularly. 

22During the period of this offending you were driving a white Toyota LandCruiser twin cab utility with the registration CFA 4X4.  That vehicle had been modified to make it look like a CFA forward command vehicle with a yellow revolving light on the roof, several aerials and a canopy in the rear of the tray.  It had a CFA volunteer sticker which was not standard CFA.

23The Newport Fire Museum restores and maintains vintage fire trucks and firefighting appliances.  Some of the equipment dates back to the 1800s, much of it, unique and irreplaceable. 

24In 2009 you started showing an interest in the museum.  You had already been a member of the Steamrail club nearby and occasionally came to the fire museum after Steamrail club meetings.  Some time prior to the fire you expressed an interest in becoming a member and driving the vehicles at the museum.  You were told that you were too young and would not be covered by insurance. 

25On 24 November 2009 you attended at that museum and removed a window to a room which was being used to store various oils and solvents.  You ignited a fire inside that room which quickly spread damaging the roof and destroying equipment inside.  The damage to the building included complete destruction of the roof, the storage room and equipment, including the generator and lifting crane.

26At 8.17 pm you telephoned security services and reported the fire.  Twelve firefighting appliances and 31 firefighters were required to attend in order to put that fire out.  That cost in the order of $36,500.  I am not going to go through each and every cost of these matters I just discussed with counsel.  The overall cost to the community of what you had done amounts to millions of dollars.

27When interviewed by police about that matter you said you had been doing some volunteer work at the steam railway, came across the museum and decided to light the fire.  You made no enquiry so as to find out if anyone was present.  You said that you lit the fire from outside the building and you further go on to say that you had some issues with Steamrail, and a man called Rex, but gave no further detail about your reason for lighting the fire.

28It seems to me, having now gone through all the materials, that when asked by the police why you would have lit fires or carried out these actions, your response usually was that you were not thinking straight.  Not often in this scenario have you actually given a reason for what you have done.  I will refer to that again later.  In any event, a very significant amount of damage was caused, on any basis.

29On 22 October 2013 you and two co-offenders, on the railway line between Seaholme and Altona, recklessly engaged in conduct that placed passengers on a train in danger of serious injury.  You and the co-offenders knew each other.  You were all employed at Metro Trains.  One of the co-offenders was driving a train on that line.  On that day numerous phone calls were logged between you and the other two accused.  In the course of those calls an agreement was reached that you and another would place debris on the railway tracks between Seaholme and Westona.  The two of you were intending that the debris would interfere with the train that your co-accused was driving.

30At 11.27 am on that day, that train which had been driven at 60 kilometres per hour approximately, collided with the debris that the two of you had put on the tracks.  That train was carrying passengers.  Your co-accused applied the emergency brake and brought the train to a halt.  He then diverted the train off the bridge and exited the driver's compartment.  That is Charge 2. 

31As I said you were employed by the Railways.  You must have known what the potential consequences of all this could or would be.

32Charge 3, is having done that, the driver got out of the train and you and the co-accused then threw rocks, as I understand it, at the front of the train in order to damage it.  That gives rise to the charge of criminal damage, which in this overall scenario, is the least of your worries.

33On 4 March 2015 at Newport you destroyed by fire two heritage listed warehouses and four 100 year old train carriages belonging to Steamrail Victoria.  Steamrail Victoria is a volunteer based organisation whose members restore and operate antique trains, locomotives and other rail stock.  The club was located at 2 Champion Road, Newport.  The south west corner of the factory was used to house four swing-door train carriages, built in the 1890s, which were being restored. 

34You had been a member of this organisation since you were a teenager when apparently your grandfather had introduced you as a volunteer.  You were well acquainted, as the Crown opening says, of the site, the building and its contents.  You would have been well aware, having been a volunteer there for years, of the history of those carriages and the extraordinary amount of effort and love, if I can use the expression, that other members and other volunteers had put into restoring those carriages. 

35At 1 o'clock in the morning on 4 March you used the sliding doors to gain entry.  You were aware that they did not lock properly.  You entered the building and walked through the shed down towards the carriage.  Using the electrical circuit you lit a fire in the carriage.  The fire caused the roof to collapse over the four carriages which were being restored and destroyed them.  The south-west corner of the factory sustained the most damage, but another warehouse belonging to the club, was also destroyed.  The 1890s carriages were almost completely destroyed by the fire and the collapsing roof. 

36Shortly after starting that fire you made a call to the secretary of Steamrail Victoria to notify her that there was a fire at the premises.  You then called one of your co-offenders and asked him if he could see the smoke from his home. 

37Forty firefighting appliances and 91 firefighters attended as well as members of Victoria Police, Ambulance Victoria and General Electricity.  The overall cost of that was something in the order of $270,000.  As I have indicated to counsel before I started these sentencing remarks I have got no idea what the value of the trains or the building was. 

38When asked about that you could not explain why you lit the fire and said, "I was not thinking straight and I just can’t understand why I would do that.  I really liked working there". 

39The victim impact statements that have been tendered in relation to that matter, as counsel for the Crown accurately described, are heartbreaking. 

40The first from Mr Kevin Clark includes the following.  "The arson attack at Newport railway workshops during March 2015 has had a significant emotional impact on me and many others.  The four swing door carriages destroyed in the fire date back to the 1880s and was steam-hauled before being converted to electric tracks in the 1920s.  They ran on Melbourne's electrified rail network until 1974 when the last four carriage set was withdrawn and set aside for preservation.  In 1980 I commenced voluntary work with Steamrail Victoria's Elecrail division.  I then devoted over 34 years of my life to the restoration of the swing door electric carriages that were destroyed in the blaze.  The old carriages had always fascinated me with their beautiful woodwork, outward swinging doors, full width compartments, ornate fittings and their ancient electrical equipment.  In my mind (and nobody has ever proved me wrong) they were the best examples of preserved electric carriages, not just within Australia, but the world.  On average I volunteered between 40 and 45 weekends a year, sometimes on both Saturdays and Sundays.  In retirement my involvement increased to three or four days of voluntary work per week.  When the first swing door carriage was beautifully restored in 1987 I was so proud of my achievements.  I knew that without my driving force and dedication it would never have been restored.  I co-ordinated the others.  I kept the project together".

41He then goes on to describe the consequence of it and also insofar as the vehicles are concerned.  He asked the very sad question, "Why couldn't at least one of the restored carriages have been spared?" 

42Subsequently he goes on to say, "A few hours later I was granted access to the site to assist the fire investigators.  What I saw has scared my memory forever.  Those beautiful carriages I devoted so many tens of thousands of hours effort towards had been destroyed.  Little could be saved from the burnout wreckage.  In the days, weeks and months after the fire I experienced a range of emotions.  I experienced sadness, anger, anxiety and depression.  My blood pressure increased.  I sought assistance from a counsellor.  I cried. I turned to family and friends for support.  People were kind to me but nothing they could say or do would bring back those beautiful carriages.  My whole world had been ripped apart.  Such precious assets were lost.  All my dedication and hard work had been a waste of time.  I really wanted the restored swing door set of carriages to be my lasting legacy to the State.  My contribution, that special something I would leave behind for future generations to experience and enjoy.  Alas, this was not to be.  My life will never be the same".  He cannot face starting again, a man in his 70s.

43The other victim impact statement from - I am assuming, I might be quite wrong about this - it is either a brother or a relative - is very much in the same vein.  That Mr Clark has spent 34 years of his life on these carriages and the emotional impact is virtually identical. 

44A further fire was lit by you at those premises in August.  In regard to that there is a victim impact statement from Mr Grigg who goes into detail describing, as enthusiasts would, the beauty to him of what you destroyed and its worth to the community.  He again, as with the other two, is in his early 70s and is physically and emotionally unable to contemplate starting all this again.

45That was the background to those carriages.  You had been a member or volunteer to that organisation for something like seven or eight years, from what I can see.  You must have been aware of those aspects of it, and yet you not only having seen the consequences of the first fire, and as I understand it from your record of interview, been fully aware of the public response and anger at it, you did it again.

46The next charge is on 16 June 2015 at Clonbinane, destroyed the Country Fire Authority communications room.  At that time you were a volunteer firefighter with the CFA and were living approximately 100 metres from the fire station. 

47At approximately 12 am on 16 June 2015 you attended the premises and entered the communications room at the rear of the station.  There you started a fire amongst the electronics equipment.  Once the fire was burning you drove a fire tanker out of the building and radioed VicFire to report the fire.  You then laid out a hose from the tanker ready to extinguish the fire. 

48Again, additional firefighting appliances and members arrived to help put the fire out.  That fire caused extensive damage to the communications room and adjoining kitchen.  The CFA have reported the cost of the fire exceeding half a million dollars.

49You also, insofar as that was concerned, lit fires - which I will be referring to later - but I think it is appropriate at this stage to deal with this aspect of you having been in the CFA.

50The victim impact statements from Mr Vienet and Mr Hibbert talk about the consequences of what you did.  You have caused a great deal of lack of trust.  These sorts of matters caused a lack of trust in the CFA on an overall basis.  Mr Vienet was a Black Saturday survivor, who was in the CFA in that area, and for 26 years he had been a CFA firefighter.  You were betraying people like him. 

51One of the other victim impact statements - and I apologise for not having it tagged - describes how after the fire you had been described as a hero.  That you had, basically, tried to save it.  In fact, it was all your fault.  You had also attended and acted as if you were a hero insofar as other fires that you lit later on were involved.

52Mr Hibbert, I think it is, expresses his shame and embarrassment that he put out a newsletter which described you, an arsonist of probably one of the worst order, as a hero.  It is clear from those victim impact statements that the brigade still feels a significant amount of humiliation from what you, as one of their supposedly trusted helpers, did. 

53On 12 July 2015 at Spotswood you placed a motorised scooter on the railway tracks in front of an approaching train that placed passengers on the train in danger of serious injury.  Some time prior to that one of your co-offenders had spoken to you about having observed an abandoned scooter.  He suggested to you, apparently, that you could place the scooter on the tracks, or he could, so the train would be impeded and that he would be driving it thereby causing an incident. 

54Again, there were numerous phone calls between, certainly the two of you, and perhaps the three of you.  At approximately 6.15 pm you were in the area and your current phone call charges demonstrate that you were talking to your co-offender. 

55That night you were rostered to commence work at 7 pm to perform Metro disaster recovery team duties.  At approximately 7.04 pm you attended the location where the scooter had been, picked it up and placed it on the railway tracks, approximately ten metres north of the boom gates.  You then left the scene and headed to work. 

56At approximately six minutes past seven the train driven by your co-accused was slowing down as it approached the station.  It struck the scooter causing it to break apart underneath the train.  The train came to a halt at the intersection and remained there until the Metro recovery team attended to assess and repair the damage. 

57You arrived for work approximately 20 minutes late and were immediately deployed to assist with the train that had been damaged by the scooter that you had left on the tracks.  That caused delays of about two hours for commuters and necessitated replacement services.  Your co-accused then apparently - and I realise his trial has not taken place yet - claimed that it caused him post-traumatic stress and endeavoured to make a WorkCover claim in relation to it.  He has apparently taken time off work because of the alleged mental disorder arising from that incident, and again, this is the situation, you worked with the Railways; you knew what the potential could be. 

58On 22 July 2015 you damaged a public facility by committing a property offence intending to cause major disruption to the use of services by the public.  This is the charge of sabotage and I will not say it each time.  I cannot find another judge who has sentenced for sabotage, so it is a little bit difficult to work out what the current sentencing practices are, because there do not seem to be any. 

59Anyway, on 22 July just before 7.45 pm you drove your car to Newport and you parked it alongside the signal hut.  You used a key to gain access to the hut, which you clearly had; you had many keys when the police raided your house.  You then used bolt cutters to sever power and communication cables. 

60At approximately 7.45 pm, the nightshift signals duty supervisor, received a signal fault which caused disruption to the interstate line between Melbourne and Adelaide and it cut off the Werribee service. 

61Investigations revealed that a number of flat ribbon and communication cables, as well as the power supply had been severed, but the door had not been forced.  Mr Munro told the police that, in his opinion, the person responsible, "Knew what they were doing.  It seemed minimal effort for maximum effect".  It is quite clear, from all the materials, that you had been interested in trains and the electronics of it and all those aspects for a number of years.  I have no doubt that the knowledge was yours.

62In any event, shortly after that, or some time after that on the same day, at Sunshine, you effectively did the same thing.  You were wearing gloves to avoid detection.  You used a key to gain access to the signal box at the McIntyre 4 hut at Cromer Avenue, Sunshine.  Once inside you used bolt cutters to cut wires inside the signal box. 

63The signal technician told the police, that when he turned up at the hut the lights were not working, all the circuit breakers were turned off by cutting the main supply of power, switches to the back-up battery turned off and wires cut.  The fibre optic box opened and the wires had been ripped out causing significant damage and cutting all communication.  The electrical relay had been ripped out and thrown on the tracks.  There were numerous other wires and cables ripped out and cut randomly.  Mr Trosky told police that in his opinion the person who committed the offence had electrical knowledge and had turned off the circuit breakers before cutting live wires.  He also believed the person was knowledgeable enough to attack the fibre optics and to turn off the back-up power supply in order to completely isolate the hut from power. 

64In the re-enactment video you told police that you thought cutting the wires would make the train stop.  Again, you said that you weren't in the right frame of mind and were having some problems at work, some mates had died and you weren't seeing your girlfriend. 

65Later on that night you attended an unmanned railway hut near the intersection of Somerville Road and Market Street in Tottenham.  You gained entry, ignited two separate fires inside the hut causing moderate burning to the rear half of the signal hut just missing the signal room where essential equipment is located.  Four firefighting appliances attended to put that out.  Those matters all occurred within a few hours of each other and accordingly there will be significant concurrency in relation to those.

66On 8 August 2015 you went to a shed belonging to Steamrail Victoria.  You did the same thing.  Intending to cause a fire inside, you climbed the fence at the rear of the shed.  Once inside you lit two fires, one in a railway carriage and one in the old wooden building.  Once the fire was lit you stood and watched the fire for some time.  You watched the fire trucks arrive and left the area.  I do not have to go through the victim impact statement in relation to that.  As I said you had done it before, you knew what the consequences were and the distress that it caused and you did it again. 

67At 1.30 on that morning the security guard employed by Risk Protection saw smoke coming from the railway yard.  On attendance at the area he could see it was the Seaman's yard building had been destroyed by fire.  That building had been used to house vintage steam trains and carriages, all of which had been destroyed, and I refer to the victim impact statement of Mr Grigg that I have already referred to.

68When interview by police you said that you were having a bad night or not thinking straight.  You said that you were aware of security guards but did not think they would be affected by the fire because they were on the other side.  You made no enquiries as to whether anyone was present or not.

69On 11 November at Hurstbridge you damaged a public facility by committing a property offence, again, a sabotage charge.  The Hurstbridge railway station has a facility for stabling trains overnight when not in use.  Trains are stabled on one of six lines and are cleaned overnight ready for use the next morning.  The lines are fitted with a derailer.  For obvious reasons I'm not going to go into how this was caused on this occasion.  The press are aware of that and have undertaken not to, obviously, for public safety reasons, indicate how this occurred.  It required knowledge on your part and required a certain degree of determination.

70In any event, the train was started by you and left.  It would have gone for a minute unless it had hit the derailer and anything could have happened.  In any event, you knew the train would de-rail and it did. 

71For somebody who is working for the railways and aware of the potential consequences, and the sheer weight and size of a train running free, is an extraordinary offence to commit.  The cost of repairing it was in excess of two and a half million dollars. 

72Another charge that relates to that, obviously at the same time, the charge of intentionally and recklessly endangering conduct, that is the derailing of the train that placed two men in danger of serious injury.  Your actions caused the train to be derailed by the derailer thereby causing the first three carriages to travel along the track.  The train then continued along the track colliding with an overhead stanchion, a sliding entry gate, a yard fence and then colliding with another train on track.

73At this time Mr Alfriedy, a security guard, was patrolling the area.  He saw the train coming along the track towards where he was standing and had to jump out of the way to avoid being hit.  A Mr Bedawon was cleaning the trains that night.  He had placed yellow flags on trains on tracks Nos. 5 and 6 to signal that they were being cleaned.  I note that the train you started was in fact on track No.6.  He was mopping the train on track No.5 when he saw the train on track 6 moving at a fast rate of speed.  He saw the train travel along the tracks through the gate and on to the main line with sparks going everywhere.  That moving train endangered the lives of both men, and has to be regarded as a very serious offence, in my view.

74When interviewed by the police about that you said you had been thinking about derailing a train at Hurstbridge when you had left Clayton earlier in the night.  You were aware that there were security guards patrolling the area, and cleaners, and you had seen the cleaner on the train next to the one that you derailed. 

75When asked if you knew that your actions might place people in danger you said, "I just wasn't thinking straight on the night".  You believed that it would be derailed once it had started.  You knew it would go for a minute unless it hit the derailer first.  Once the train had been detailed you knew that a crew would be called to come in and fix it.  You knew a crew would be allocated from North Melbourne and you would be one of the people allocated to repair the damage.  That is the situation in regard to one of the other charges already mentioned as well.

76After the incident referred to in Charge 7 a cyclone security fence was installed around the Newport signal control room.  On 21 November you again attended at the Newport room, cut the padlock using bolt gutters and gained access to the control room.  You used a key to gain access to the room itself and set about cutting numerous wires and the ribbon cable which controls all signals to and from the control room.  This caused all controls and indications from Newport South to shut down disrupting the running of the train network. 

77Mr Matthews was the nightshift duty signal supervisor.  He said that only the cables which controlled the critical field equipment had been cut thereby affecting the points which controlled the direction of trains and the level crossing activation.  He said the critical wires make up only 5 per cent of the wires in the control room but they are the most critical.  Looking at the way the wires had been cut he believed the offender had intimate knowledge of the signal circuits and that he intended maximum damage with minimal effort.  He also noticed there was another less damaging way which could have been achieved but that had not been carried out.  There were disruptions, at least, to the Werribee and Altona lines over a period of some 24 hours. 

78The next series of charges relate to lighting fires.  On 19 December 2015 at Taradale you lit a series of seven separate fires in an area expanding ten kilometres.  You stopped your car by the side of the road and using a lighter lit fires in the scrub and grass as follows. 

79On the Calder Highway a fire which covered an area of about 1200 square metres and a second fire which covered about 200 metres.  On the Metcalf-Taradale Road a fire which covered about 15 square metres and a second fire which covered about a half a hectare.  On the Marsh and Metcalf Road a fire which covered about 400 square metres and a second fire which extended for 150 metres along the roadside.  Further along Metcalf-Taradale Road a fire spreading ten to 15 metres along the road and into a paddock. 

80A Mr Stevens, a firefighter at Malmsbury told the police that the fires had been lit in areas with little foot or vehicular traffic and out of sight of the Calder Freeway.  He had held the view - whether it be right or wrong - the fires were likely lit to avoid early detection, thus enabling them to take hold.  Had the fires not been detected on time there was a potential significant property damage and risk to the welfare of people in the area.  Several nearby residents had to be evacuated for their safety.  A Mr Noonan lost over half of his two hectare paddock of stockfeed to the fire.  He had about 50 head of cattle in the paddock and of course they were also placed in danger. 

81It was a concerted lighting of fires, whilst it was not, as I understand it, a total fire ban day, but it was in December and you of all people should have been fully aware of the potential consequences, not only to property and human life, but also to your fellow - if I can use that word - firefighters. 

82On 17 December, about a week or so later, you drove your 4-wheel drive LandCruiser to a remote area of the Mt Disappointment National Park.  You ignited a camping chair, cans and rags in a gully causing a half hectare of bushland to burn down.  That fire required the attendance of six fire appliances, a number of investigators, from Victoria Police and the Department of Sustainability and Environment. 

83On 17 January 2016 at Clonbinane you again lit a fire.  You attended at the intersection of Broadford and Wandong Road in your Toyota utility and lit a fire in the grass along the side of the road.  You then returned home and waited for the call to come through so you could go and fight the fire.  There were fire restrictions in place on that day and a number of people in the area drafting sheep.  Again, the cost was significant.

84On 21 January 2016 some time after midnight you pulled your car up on the grass verge on the side of the Epping-Kilmore Road and lit a fire in the grass.  A lady happened to be driving past and saw your utility and described the fire as being about five steps away from the driver's side of your car.  She immediately rang Triple 0 and fire trucks were able to attend immediately.

85On 3 February 2016 at Kilmore you lit three areas of grassland set approximately five kilometres apart on the Sunday Creek Road.  You drove to Kilmore in your Toyota LandCruiser.  That time you had sparklers with you.  You lit those and threw them out the windows of your car lighting a series of fires along Sunday Creek Road.  Once you had lit the fires you attended Coles at Kilmore and purchased some items.  You then received a call from the CFA to attend the fire and assist. 

86When interview by police you admitted lighting the fire and then waiting for the call to go and fight it.  You also had told police that you were aware of the possibility the fire might spread over the road.  When asked why you lit the fire you again gave a response, "Just wasn't thinking right".

87On 9 February 2016 you destroyed a fire signal hut belonging to the Australian Rail Track Association.  At approximately 2.42 pm you made a cash purchase of liquid gel accelerant at Bunnings.  At 11 pm that night you and a co-accused attended the signal hut at Tottenham.  Using the accelerant the two of you ignited some carpet being stored beneath the edge of the southern wall causing damage to the building. 

88At that time a Mr Hawley was working as a security guard and performing internal and external patrols.  He observed, what came to be known as you, and a co-offender walking away saying that one of them removed a blue latex glove and placed it in his pocket.  That's the second time you endeavoured to burn that hut.  The first time being in Charge 9.

89Charge 20, on 13 February 2016 you attended a Bunnings store in Hawthorn and purchased a firelighter liquid gel.  You then attended the home of a co-accused in your LandCruiser.  The two of you then drove to a factory adjacent to a railway line between Geelong Road and Francis Street in Yarraville.  You disguised your face by pulling a cloth over it.  The two of you got in through a bent gate and set fire to a pile of used car tyres.  I have obviously seen the photographs of that pile of car tyres and it is a big pile of car tyres. 

90In any event, when interviewed by police, you said that you did not think about whether, when you set fire to the tyres, it might get out of control. 

91At approximately 11.50 pm police were investigating the offences and they were travelling in an unmarked police car on Stanger Street in Yarraville.  At that time the fire, which is Charge 20, that is the tyres, had started at the rear of the factory adjacent to the railway line between Geelong Road and Francis Street.  Sergeant Womble noticed your vehicle.  He intercepted it, which was being driven by you.  In the passenger seat police found of your co-offenders.  When police asked you about the fire you said, "We started it, there's no point denying it.  I used some firelighter liquidy gel which I purchased from Bunnings in Hawthorn today.  It was my idea.  A silly idea".

92It was at that point that the series of fires obviously ceased and you went into custody where you have remained.

93After your arrest police executed a search warrant at your home in your presence.  During the execution of that warrant they found many keys including CFA keys.  That gives rise to the summary charge of dealing with the proceeds of crime. 

94Police also found flammables, sparklers and fire extinguishers.  During the execution of that warrant you made a number of admissions to police about offences that you had committed and you said to them, "I don’t know why I keep lighting fires.  Why I do things". 

95You admitted to the train at Hurstbridge and you admitted to cutting the wires at Newport and Albion. 

96At the conclusion of the warrant you then directed police, or they directed you, to various locations where a number of the video re-enactments took place. 

97It is for all those matters, Mr Archer, that you stand to be sentenced. 

98The offending, as I said, is extremely serious and almost beyond comprehension.  It calls for the application of general and specific deterrence, denunciation and appropriate punishment. 

99On the materials before me, and having read the psychological and psychiatric reports, there appears to be - and I will be dealing with those again in a couple of minutes - there appears to be a sense of, with a lot of this, self-justification. 

100You claimed to two of the professionals that the train moving was a suicide attempt.  I do not accept that. 

101Whether you were doing this so that you could attend with the Metro damage people, or attend to fight fires yourself, or whatever, is all highly debateable.  I find it interesting that on each one of them you cannot give a reason other than that you, effectively, were not thinking straight. 

102You, as I have said, knew what the actions would be to these matters.  You knew the public fear of fires, particularly since Black Saturday, and in your situation there is no application of the principles in Verdins. 

103There is no material before me which ameliorates your moral culpability in terms of what you did.  Over an extended period of time you have purchased materials preparatory to it, and what you were engaging in for whatever reason, was considered.

104I take into account on your behalf that you will spend your entire sentence in protection.  I take into account on your behalf that the motor vehicle that you were driving has been forfeited and I then turn to the matters personal to you as outlined in the reports of Mr Sullivan and Mr Healey. 

105It is of importance, I suppose in one sense, that neither drugs nor alcohol would appear to be involved in any of this, and that can be of assistance in terms of rehabilitation, ultimately. 

106It is clear also that, despite all this, you do have strong family support and that is highly laudable on the part of your family and should be of your ultimate assistance when, finally, if you are released, upon parole. 

107I accept for these sentencing purposes that you have had an unrelated depression which is probably, on the view of Dr Sullivan, existent prior to the committing of these offences and I take that into account. 

108Your counsel tendered on your behalf, firstly, his succinct submissions on sentencing.  Also reports from Dr Danny Sullivan, a psychiatrist well known to me.  Mr Bernard Healey, two reports, a psychologist and a Mr Constandides, who I understand it, was your GP.  He refers to the potential of autism many years ago.  That would appear not to be the case and I take it no further than that.

109Insofar as the material contained in those reports is concerned I do accept that you have found it harder than a normal prisoner to be in gaol and you will find it harder to be in gaol and I take that into account.

110It appears that you are getting psychological assistance in gaol and that would appear to be for the first time.  That, again, is laudable. 

111However, I then look at, and I have obviously read these reports a number of times, and I am not going to refer to them in great detail other than in a simplistic sort of a way.  Doctor Sullivan, who saw you, you told him you were an equipment examiner's assistant and you were normally paired with a tradesman.  You described your earlier work history with him and described how you had gone to live in Clonbinane.  You told him that you collected railway memorabilia as well as firefighting memorabilia and photographs.  You told him that you have a hoarding problem with matters such as that. 

112You described relationships that you had had including one with a girl who apparently had not wished to proceed with it and it is difficult to see how that fits into all of this.  You were in Chilwell unit when he saw you, a unit for prisoners with special needs, generally a medical illness or mental health problems.  I suspect that that is largely because of the fact that you will be in protection, I have no doubt, and are a very potentially vulnerable prisoner insofar as that is concerned.  You are on an anti-depressant, and as I said, you indicated it was the first time you had engaged with mental health staff insofar as your concerns.  You have had concerns with prison. 

113You then noted, when talking to him, that you had been the subject of a sexual assault by a man called Rex, and I accept from the Crown that that is true and that man has been sentenced, during your volunteering.  He touched you on the groin, made lewd comments and touched you on the bottom which you found very uncomfortable.  You also noted another incident that occurred when you were a child in a public toilet. 

114It has been put to me that there might be some connection between that assault and all this offending.  It is hard to see how there is any real or causal connection, for me to see between those matters.  It may well be that a number of these fires are lit in the general area where that offence took place, so it is clear that you had been a volunteer there and been operating in that area, in any event. 

115Doctor Sullivan said that you struggled to characterise your thoughts or moods prior to setting fires and doing damage but described that you were often feeling low in mood; not coping or under stress.  You told him that you also hoped to be perceived as capable by other members of the Country Fire Authority.  You wondered if people were suspicious of you because you enjoyed taking photographs of fire trucks.  You denied particular incitement in setting fires or watching them but started to enjoy being on a fire truck or using the hose.  You denied any earlier history of lighting fires for fun although said you may have once lit a fire under your mother's bed which is of no significance here.

116You, in my view, untruthfully told him that the derailment in Hurstbridge was an attempt to run yourself over with a train.  That is the first time, it would seem, that that appears except maybe to Mr Healey. 

117The report does not really go into the seriousness, in my view, of the offending.  He, as is his job, he asked you to discuss with him how all this came about.  You detailed a range of negative life events and it became clear to him that you have poor self-esteem.  He also had a report from Mr Healey at that stage and it is quite clear from this material - or a bit late now - that you had an extremely disadvantaged childhood.  That each of your parents had serious drug problems.  That there was DHS involvement.  That you were, from time to time - and I am not going to detail all this - placed in foster care and it was a very disruptive childhood, and I have got no doubt, one which has caused you ongoing difficulties and concerns. 

118Mr Healey tested you, with a full scale IQ of 90 with some marked verbal performance discrepancy.  It is clearly not a situation where you have an intellectual disability as was the case with Mr Sokaluk and takes me no further than that.  You have been noted as having average intellect but would appear to operate on a lower level, according to both Mr Healey and Dr Sullivan. 

119However, when viewing that, they do not seem to go into the ways in which you carried these crimes out.  There is clearly a degree of knowledge and understanding of how these systems worked.  You were also able to avoid detection committing very serious offences for a significant period of time.  It was noted that when you were in secondary school you showed an aptitude for mechanics, electronics and trains. 

120Even Dr Sullivan says that, cognitively, you appear to be functioning in the border line range of intellect.  You have no gross defects in attention or concentration though your memory was sometimes poor.  As I have said I am not going to go through each crime in detail but these were not the crimes of a simpleton.

121What he did determine - and I accept this - is that you satisfy the criteria for an Anxious (Avoidant) Personality Disorder and linked to that is a sensitivity to others that others would find you wanting and you had little success in making and sustaining friendships outside the family.  He says also it is likely that you also meet criteria for social phobia with marked anxiety in social situations associated, again, with the fear of negative evaluation from others.  He said that in your case it is difficult to determine whether your vulnerabilities are sufficient to account for your problems or whether there is an additional anxiety disorder restricted to social situations.

122He said also, as I have indicated, you meet a diagnosis of a current depressive disorder, mild to moderate severity.  None of those matters affect or go to your moral culpability in this matter, and other than the more difficult in gaol, they are of little consequence in this sentencing proposition. 

123He does say, however, that you have auditory hallucinations, which are unusual, but do not appear reflect a psychotic illness.  He said they appear associated with personal vulnerabilities and anxiety and appear to have attenuated or dissipated with low sub-therapeutic doses of sedating anti-psychotic medication.  He said there is no over indication of an anti-psychotic illness.  He said you are not in the range of intellectual disability.

124He said that he sought evidence of pyromania.  He said that you would, "Meet a provisional diagnosis of this disorder.  Although he does not describe emotional responses to the fires he has set their persistent, frequency and association with membership in the CFA render it likely that there is some apparent interest in fires".  That, of course, does not relate to derailing trains and risking the lives of people by putting debris on the tracks.

125Again, he said this - and I think this is again of significance.  "Mr Archer's fire setting and sabotage appear associated with negative mood proximal to episodes of offending.  The symbolism of some targets of his damage is consistent with the notion that at some level his fire setting and property damage represents the protests of a man who cannot otherwise assert his grievances effectively due to long-standing personality deficits.  Fire setting, in turn, becomes a maladaptive manifestation of negative mood states in a man who struggles to voice his emotions or manage his social and mood problems". 

126Those matters may well be true and I always respect Dr Sullivan's opinions, but whilst one may come across teenagers, for example, who will go on a rampage of smashing phone boxes or something like that, this offending that you have committed goes way beyond that sort of disadvantaged reaction.

127He goes on to say that your mood and personality disorders are likely to have been causally associated with the offending.  At the time of the offences you seemed able to think clearly, but not so obviously, to make calm and rational choices.  There is no indication of this inhibition.  I consider this lowered mood, poor self-esteem and limited assertiveness were in part associated with the alleged offending.  I do not find that to be directly causal in the way required by Verdins.  These crimes were carried out consciously and deliberately being aware of the massive breach of trust involved in the majority of them and being aware of the potential consequences, and indeed in a couple of them, previous consequences. 

128He then points out that in a prison environment you are markedly vulnerable and I accept that.  He says that incarceration will weigh far more heavily on you due to your personality and mood disorders and I accept that. 

129Nowhere in that report, that I can ascertain, is there anything that gives me confidence in rehabilitation.  There is nothing there to suggest that you are a low risk of re-offending or whatever.  The offending was brought to a halt by your arrest. 

130Mr Healey has provided two reports which go through the background and he describes the IQ test and the like.  He describes you giving him indications of being bullied and all those matters and I clearly take them all into account. 

131Insofar as one aspect of his report is concerned, that is, "Paranoid trend, persecutory ideas, the view that he has had a harsh deal from life, that no-one understands him; that someone has it in for him.  The view that he is being plotted against, punished without cause, talked about; that he is a condemned person.  Has had more than his share of things to worry about.  That someone seems to have control over his mind".

132As I have indicated, there seems to be permeating throughout these reports some vague sense of justification or entitlement.  It is not referred to expressly and it is a difficult thing to agree with.  If ever there was a distinctive synthesis exercise in sentencing I think this is it. 

133It is difficult to gain much comfort from the reports of Mr Healey.  Again, they seem to be just accepting the sort of gross offending.  It is understandable, he said, referring to you, "He was asked why he would damage a place he cared so much about.  So he was clearly upset about discrimination expressed from certain others.  In relation to the signal hut fires he was uncertain whether the other co-accused was present".  It seems, going through that, that you were prompted by frustration.  And his quotes were, "Clearly his actions were prompted by frustration not to leave this life by way of suicide without some form of protest".  That is Mr Healey's view of what he said of what I think about your very late decision to tell people that it was suicide attempt when you derailed the train, and then as I understand it, attended in the recovery crew.  In any event, they are the matters that have been put on your behalf. 

134The prospects of your rehabilitation, I am somewhat of a loss to know what they are going to be.  There is nothing of great comfort in those reports and I think that there are aspects of community protection in this situation, where the offending is of such a gross and such a patently dangerous way, has to be, as the Act dictates, paramount. 

135The risk of you re-offending again, I have got no idea; there is no assessment of that risk before me.  The best I can do in this situation, which clearly calls for a very serious sentence indeed for extremely serious offending, is to give you an opportunity for parole at a significantly earlier time than would otherwise be the case.  I am not in a position at this time, on the materials before me, and I doubt very much whether either the psychiatrist or the psychologist are, to make a determination as to what the risks of you, if you became depressed or alienated or suffered grievances against somebody, would not resort to very similar offending.  There has to be a risk involved in that and I am just unable to quantify.  I will leave that for others at a significantly later time. 

136The most concerning aspect of all this insofar as you are concerned is that you are 28 and you do have - well, up until this - have no prior convictions.  You have given co-operation and you are charged, essentially, on matters that you volunteered to police, albeit having been arrested.  That has to be balanced against the - I will use the word again - extremely serious nature of this offending, the time over which it occurred, the fact that you were fully aware of the consequences of it and yet, nevertheless, determined to keep going. 

137I have to, in this situation with one who is still of relatively tender years, if I can use that expression, be conscious of concepts of totality and to endeavour not to impose a crushing sentence.  It is a difficult task, indeed, for someone who has done what you have done. 

138You, on this description and on what you have done, have to be regarded as potentially a very dangerous member of this community, and as I said, I will leave it for others to determine when you ultimately be returned to it, but in the meantime, there must be a sentence which gives rise to strong general deterrence for others who may be like-minded, specific deterrence in your own situation and a display of the denunciation that any right-minded thinking person in the community would feel for the crime that you have committed against the public, against people, and in one sense, against the State, I suppose. 

139You have now been in custody for 242 days and I reckon that to be served under the sentence which I am now about to impose.

140I am aware that the sentences are to be cumulative unless otherwise ordered, that is, the ones in relation to serious arson offending, and I intend to give concurrency of significant amounts.  To apply that section with total cumulation would lead to an utterly crushing sentence and I have got to avoid that, but bearing in mind, the other matters that I have outlined. 

141I am expressing it in terms of cumulation because it is easier and anyone reading this can do the arithmetic and work out what was concurrent.  I express it in those terms.  Accordingly, your sentence follows.

142Charge 1 of arson, two years and six months.

143Charge 2 of reckless endangerment, one year.

144Charge 3 of criminal damage, three months.

145Charge 4 of arson, which is the Steamrail antique trains, four years and three months.

146Charge 5, the CFA building, three years.

147Charge 6, the endangerment with the scooter, one year.

148Charge 7 of sabotage, one year.

149Charge 8 of sabotage, one year.

150Charge 9 of arson, two years.

151Charge 10, that is the Steamrail warehouse yet again, four years and three months.

152Charge 11, the derailment, three years.

153Charge 12, endangerment of the two people, that is two years.

154Charge 13 of sabotage, one year.

155Charge 14 is the first of the fires, this is the one where you lit a number of them, two years.

156Charge 15, a fire, one year.  These are bush fires.

157Charge 16, bush fire, one year.

158Charge 17, bush fire, one year.

159Charge 18, bush fire, one year.

160Arson, the signal box, being the same as the one in Charge 9, one year and six months.

161Charge 20, that is the tyres, one year and six months.

162On the possession of proceeds of crime, three months.

163I have taken the view that I have tried to moderate, not only the cumulation, but tried to moderate the individual sentences because of the potential aspects of it being a crushing sentence, and in those circumstances, that is about the best I can do. 

164However, the bulk of these offences are distinct from each other, and there must be separate and appropriate punishment for each. 

165Accordingly, I direct that 12 months of the sentence imposed upon Charge 1, five months of the sentence imposed on Charge 2, 12 months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 6, two months of the sentence imposed on Charge 7, two months of the sentence imposed on Charge 8 and six months of the sentence imposed on Charge 9, 12 months of the sentence imposed on Charge 10, 12 months of the sentence imposed on Charge 11, six months of the sentence imposed on Charge 12, six months of the sentence imposed on Charge 14, 12 months of the sentence imposed on Charge 14, three months of the sentence imposed on Charge 15, three months of the sentence imposed on Charge 16, three months of the sentence imposed on Charge 17, three months of the sentence imposed on Charge 18, six months of the sentence imposed on Charge 19 and six months of the sentence imposed upon Charge 20, be served cumulatively upon each other and upon the sentence imposed upon Charge 4. 

166That gives a total effective sentence of 14 years. 

167I direct that you serve a minimum term of nine years before becoming eligible for parole and I have made that an earlier opportunity than would otherwise be the case for the reasons that I have outlined. 

168As I indicated to counsel the other day, s.6AAA in this matter is very artificial.  All sorts of things would have occurred.  Had these matters run as trials they probably would have run separately; there would have been all sorts of aspects, but I simply say this, so you understand the benefit of you having pleaded and co-operated in respect of these matters, but for your pleas of guilty, I would have sentenced you to be imprisoned for a period of 22 years with a minimum term of 16.

169Are there any other orders I have to make?

170MS MANOVA:  No other orders, Your Honour.

171HIS HONOUR:  All right, you can remove the prisoner. 

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