Director of Public Prosecutions v Binotto
[2024] VCC 1868
•15 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00825
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN BINOTTO |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2024 | |
DATE OF SENTENCE: | 15 November 2024 | |
CASE MAY BE CITED AS: | DPP v Binotto | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1853 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Recklessly cause bushfire — Make threat to kill — Make threat to damage property — Plea of guilty — Significant prior criminal history — Intellectual Disability — Verdins principles — Bugmy principles — Fair prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Smith [2023] VCC 53; DPP v Ochien [2023] VCC 619; Stranger v The Queen [2021] VSCA 25; DPP v McGrath [2019] VCC 209; DPP v Kingston [2018] VCC 1310; R v Verdins (2007) 6 VR 269; Marrah v The Queen [2014] VSCA 119; R v McKee (2003) 138 A Crim R 88.
Sentence: 9 months gaol followed by an 18-month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr C. Tom | Camerons Lawyers |
HIS HONOUR:
1John Binotto, you have pleaded guilty to one charge of recklessly causing bushfire, one charge of making a threat to kill and one charge of making a threat to damage property.
2The maximum penalties for these offences are as follows:
(a) Recklessly cause bushfire, 15 years' imprisonment;
(b) Make threat to kill, 10 years' imprisonment;
(c) Make threat to damage property, five years' imprisonment
Summary of offending
3On the evening of 22 July 2023, Tammy Lee-Burgess, her husband Christopher Charles and her brothers Ashley Burgess-Miller and Stephen Atkinson were driving towards Thompson’s Beach, Cobram. When they turned into the road to Thompson’s Beach, Ms Burgess observed flames one metre high which died down quickly.
4
As they drove closer to the beach, Ms Burgess again observed flames about half a metre from the ground. She saw you walking towards their car quickly, the flames behind you. She recognised you as her neighbour. She watched you walk away from the two fires. The flames appeared to be dying and sparking.
Mr Burgess-Miller also observed amber light in the bushland. The fires they observed were lit by you. This offending forms part of Charge 1, recklessly cause bushfire.
5Ms Burgess called Triple 0. She continued to watch the flames climb and she became worried about the bushland. Another bushfire was observed ten metres from the original fire, towards the Barooga Bridge along the riverbank. As they drove closer to the canoe hut, Mr Charles saw another fire ten metres behind the hut. These facts relate to Charge 1, which is a rolled-up count.
6
You ran at Ms Burgess’ car and yelled, 'I’m gonna kill ya. I’m gonna burn your house down. Dogs can’t do nothing, they can’t touch me'. This offending is the subject of Charge 2, make threat to kill and Charge 3, make threat to damage property. You were holding an object in your hand approximately 50 to
60 centimetres long and waving it at the car. In your other hand you were holding a fishing rod.
7Mr Eten Oates drove down to Thompson's Beach and passed the red Commodore that Mr Charles was driving. He parked and left his vehicle to use the toilets near the canoe club. As he left the toilet block, he noticed a fire in the bushland and saw you coming from the direction of the flames, screaming at the occupants of the red Holden Commodore.
8Mr Oates watched the red Holden Commodore drive away. He saw you walk into the bushland, climb over a guard rail and put twigs and leaves on top of the fire to keep it going.
9Between 9 and 10pm, Jordan Bugler, his partner Emma Bugler and their children were driving over the Barooga Bridge. Mr Bugler saw flames on the walking track near Thompson's Beach. He observed you standing in front of some flaming branches. He rolled his car window down and asked what you were doing. You responded by saying ‘fishing’. Mr Bugler asked if you were trying to stay warm. You said ‘yes’ and walked off.
10Police attended your home at 10.38 pm on 22 July. A police interview was conducted on 23 July with the assistance of an independent third person. You denied lighting any fires or making threats to Ms Burgess. You said you had been fishing and that local residents had been harassing you and smashing ornaments outside your home.
11Peter Dedman from the Country Fire Association District 22 in Shepparton prepared a fire investigation and management system report. He determined that nine fires had been deliberately lit in a 48 x 20 metre square area of bushland. There were no fire restrictions at the time and no total fire ban. There were no structural losses. The fires were one square metre or less in size each, located in an area 160 metres x 20 metres, adjacent to the western bank of the Murray River.
Circumstances of offender
12
Your circumstances were summarised in the psychological report of Ms Marlese Bovenkerk dated 19 July 2024 and the disability overview report authored by
Ms Ana Pascoe dated 24 October 2024. I was also provided with an older psychological report from Carla Lechner dated 2018 for the purpose of establishing the long-term and ongoing mental health difficulties you have faced.
13You are the second youngest of four children and grew up in Cobram. You experienced and witnessed significant family violence as a child, perpetrated by your father who struggled with chronic alcoholism. You reported to Ms Bovenkerk that your father beat your mother 'all the time'. You recalled instances where your mother was beaten with a kitchen chair and beer bottles. You told Carla Lechner that your father was an extremely violent man, 'he’d make (me) watch him bash mum.... she’d be out cold in her own blood...(I’d) get bashed if (I) tried to stop him...once he made us throw the new-born puppies into the fireplace'. You describe walking on eggshells, bracing for the next flogging from your dad.
14Your sister, when she spoke to Ms Bovenkerk, confirmed this aspect of your history. She recounted that you witnessed your mum being bashed by your dad 'a lot'. She recalled that your dad would wake you up and force you to watch his assaults upon your mum and that you were forced to watch your mum’s face getting rammed into concrete.
15You report your mother leaving the relationship when you were 10 years old and raising you and your siblings as a single parent.
16Two of your siblings have passed away and you have retained a close relationship with your remaining sister Sharon who plans to have you live with her upon your release. You remained close to your mother and provided her with significant care whilst her health deteriorated. She passed away earlier this year, and you were unable to attend the funeral due to your remand in custody.
17You attended school in Cobram and struggled academically and with your concentration. You have never learned to read or write properly. You left school in Year 10 and began working casually, fruit picking and doing piecemeal factory work. You began to use cannabis at around age 13 or 14 and methylamphetamine in your late 20s. You started drinking alcohol at age 13 or 14 and have a history of alcohol abuse. At your peak you have reported drinking a cask of wine a day. Prior to your remand, you primarily cared for your mother and older brother.
18You have a number of diagnosed mental health conditions, including bipolar disorder, persistent depressive disorder and stimulant use disorder, and began experiencing auditory hallucinations around 2016 or 2017. You were previously prescribed risperidone while you were in the community. Since entering custody, you been prescribed olanzepine, an atypical antipsychotic. You remain engaged in psychiatric treatment, seeing psychiatric nurses and a psychiatrist on a monthly basis. You also report having to take medication for an enlarged artery in your heart.
Defence Submissions
19Mr Tom on your behalf conceded that your offending is serious and must have been frightening for the victims. However, he submitted that all sentencing principles could be adequately addressed by the imposition of a community correction order in combination with a term of imprisonment constituting time served.
20Mr Tom provided me with a table of comparable cases including DPP v Smith,[1] DPP v Ochien,[2] Stranger v The Queen,[3] DPP v McGrath,[4] and DPP v Kingston.[5] None of these cases are on all fours, but they illustrate current sentencing practices and I have taken them into account in arriving at my sentence.
[1] DPP v Smith [2023] VCC 53
[2] DPP v Ochien [2023] VCC 619
[3] Stranger v The Queen [2021] VSCA 25
[4] DPP v McGrath [2019] VCC 209
[5] DPP v Kingston [2018] VCC 1310.
21The case of Smith concerned one charge of threatening to destroy property, one charge of making a threat to kill, one charge of damaging property, one charge of obtaining financial advantage by deception and one charge of intentionally causing bushfire. The offender received a sentence of 15 months' imprisonment combined with a three-year community correction order. That fire involved an approximate area of 23,770 square metres which is significantly vaster than yours.
22Ochien related to two charges of recklessly causing bushfire and two charges of committing an indictable offence on bail. The offender received a sentence of nine months' imprisonment in combination with a community correction order of two years and six months. Again, his fire was much larger than yours, affecting an area of 4,700 square metres.
23Stranger was charged with intentionally causing bushfire. He received a sentence of three years' imprisonment with a non-parole period of two years. He lit dry vegetation twice, the second near a road and paddock where people were working. Those fires affected an area of 4,700 square metres. On appeal, the court found that the sentence imposed was not manifestly excessive. Again, this case can be readily distinguished from yours.
24McGrath was charged with intentionally causing bushfire. He received six months' imprisonment in combination with a community correction order of two years. His offending occurred in the context of a family violence dispute. The fire burned between 30,000 to 40,000 square metres.
25Lastly, Kingston was charged with intentionally causing bushfire. He was placed on a community correction order of 18 months. He was intoxicated and lit two fires affecting a total area of 530 square metres.
Prosecution Submissions
26Mr Moore on behalf of the Prosecution submitted that a head sentence with a non-parole period is required. He relied on your lengthy criminal history, which includes violent offending, damaging property and drug use. You were on a community correction order at the time of this offending.
Prior Criminal History
27You have an extensive criminal history dating back to 1995. You have been convicted of violent offences, including making threats to kill, assaulting with a weapon and aggravated assault, as well as drug related offences and offences related to damaging property and contravening personal safety intervention orders. You also have an interstate criminal record with appearances in the Deniliquin Children’s Court and the Finley Local Court. At the time of your offending, you were subject to a community correction order which commenced on 3 February 2023. That related to threats to inflict serious injury, contravening orders, making a threat to kill, threatening serious injury and behaving in a riotous manner in public. You were the subject of a combined prison and community correction order imposed in the Shepparton Magistrates’ Court. You breached that order by committing this offending.
28
Some of your charges relate, apparently, to problems with your neighbours. Your sister confirmed as much in a teleconference with Ms Bovenkerk, saying that your neighbours would often torment you and throw objects at you and your home.
Ms Binotto alleged that on one occasion you were attacked with a machete by your neighbours.
Gravity of Offending & Moral Culpability
29Mr Tom conceded that your offending is inherently serious and carried the risk of dramatic consequences. He submitted, however, that your offending lacks a number of aggravating features, such as:
(a) You are charged with being reckless and not with having intentionally caused bushfire;
(b) There is no evidence of planning or sophistication to the offending;
(c) The fires were lit during the cooler parts of the day and year; and
(d) The fires were approximately one square metre or less in size.
30I accept that your offending is modest in scale and scope. I accept that the risk of spread was low given that the foliage was green and you lit these fires in winter. I accept that your offending was unsophisticated, and you were identified immediately. Your offending is a low-range example of its type notwithstanding that you lit a number of fires. You did not use an accelerant; the fires did not take and were quickly extinguished.
Prospects of Rehabilitation
31Mr Tom submitted that you have reasonable prospects of rehabilitation. He submitted that whilst your cognitive functioning and history of substance abuse presents a challenge, you have protective factors including stable accommodation and the support of your sister.
32Mr Tom relied on your willingness to engage in treatment. Ms Bovenkerk’s report notes that 'Mr Binotto expressed a positive attitude towards psychological intervention and stated that he is open and willing to engage in treatment, recognising that he needs support with managing his mental health and auditory hallucinations'. Mr Tom emphasised that you have never previously been engaged in a sustained period of treatment and medication compliance. You are now taking Olanzepine daily whilst also engaging in a methadone treatment. You have taken up working in the kitchen and you are enrolled in some TAFE courses. I have also been provided with certificates of completion for your participation in the ATLAS program at Marngoneet Correctional Centre.
33Mr Moore submitted that you have less than reasonable prospects of rehabilitation, relying on Ms Bovenkerk’s report where she observes that you are a ‘high risk of general reoffending’. You have breached five of the last eleven community correction orders that you have been placed on.
34A Community Corrections' Suitability Report and accompanying Justice Plan Report were sought. Although Community Corrections assessed you as being suitable for a community correction order, this suitability is contingent on a Justice Plan also being implemented. You were assessed as a high risk of general re-offending, and therefore supervision was recommended as a condition of any community correction order I impose. This opinion chimes with Ms Bovenkerk’s.[6] You informed the author that you would struggle to attend meetings given your lack of a driver’s licence and your inability to access public transport.
[6] Bovenkerk Report [120].
35The Justice Plan recommended a number of conditions, including coordination with the Department of Justice, and referrals to the Forensic Disability Clinical Services team for offence specific treatment and substance abuse treatment, as well as to the Glaser Clinic to provide you with specialist psychiatric treatment. It was the opinion of the author that these conditions would reduce the likelihood of your reoffending.
36You have some protective factors and you have successfully completed a number of community correction orders. You were placed on a community correction order only five months before this offending, which is not a positive sign, but what is proposed for you is intensive support and treatment. Your prospects of rehabilitation are fair.
Guilty Plea & Worboyes[7]
[7] Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
37Mr Tom submitted that your plea of guilty has real and significant utilitarian benefit and can be properly regarded as an early plea. I accept that by your plea, you have accepted responsibility for the offending, and this has obviated the need for a criminal trial. You are entitled to an additional discount having regard to the context of the COVID-19 pandemic.
Verdins
38Mr Tom relied on limbs 5 and 6 of Verdins and took the court to passages from the reports of Ms Lechner and Ms Bovenkerk in support of this submission. Relevantly, Ms Lechner assessed your intelligence as in the 'extremely low/borderline range',[8] and observed that you struggled with logical sequential thinking and that you presented with 'genuine cognitive deficits' which require supports.[9] Ms Bovenkerk also believes that prison would be abnormally burdensome for you due to your 'neurodevelopmental profile and auditory hallucinations'.[10] She noted you would be more susceptible to threat, intimidation or exploitation in a prison environment.[11] She also believes that the prison environment risks exacerbating your symptoms and mood fluctuations.[12] The prosecution conceded that limbs 5 and 6 of Verdins are enlivened, and I have adjusted your sentence accordingly.
[8] Lechner Report, 4.
[9] Lechner Report, 5.
[10] Bovenkerk Report [122].
[11] Ibid.
[12] Ibid.
39When asked about whether you were suffering from a mental impairment at the time of your offending such that limb 1 would be enlivened, Mr Tom submitted that the evidence available to the court was insufficient to enliven this limb, but highlighted that you were using drugs and behaving in an erratic manner at the time.
Bugmy[13]
[13] Bugmy v The Queen [2013] HCA 37 (‘Bugmy’).
40Mr Tom submitted that your childhood was one of significant social disadvantage and trauma. He referred the court to the case of Marrah v The Queen in which the Court of Appeal noted that:
'Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending'.[14]
[14] [2014] VSCA 119, [16].
41From the history you provided to Ms Lechner and Ms Bovenkerk, confirmed by your sister, you were raised in a home saturated in alcoholism, dysfunction and the threat of violence. There were frequent episodes of appalling domestic degradation of your mother by your father. You struggled in school, unsurprisingly, and lacked the supports to assist you with basic literacy and numeracy. You cope poorly, you have impaired consequential thinking, you make self-sabotaging decisions, and you are distrustful of others. That is an almost inevitable consequence of the instability to which you were exposed as a vulnerable child. Those features of your upbringing engage the principles in Bugmy. Your moral culpability is reduced in light of this historical disadvantage.
42You were also exposed to drugs from a young age, and this acts to reduce your moral culpability as well. As the court in McKee stated:
The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman C.J acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse'.[15]
[15] R v McKee (2003) 138 A Crim R 88, 92 [13].
43You were initially exposed to cannabis at the age of 13. You smoked grams each day before advancing to methamphetamine.[16] You were exposed to alcohol abuse at home and you in turn abused alcohol in your early teens. There is a compelling link between your exposure to your parent's alcoholism and your own abuse of alcohol as a child. You were alcohol-affected when you lit these fires. Your moral culpability is further reduced.
[16] Bovenkerk Report, [45]-[48].
Sentencing Principles
44Pursuant to s 5 of the Sentencing Act 1991, the purposes for which you are to be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
45Mr Tom conceded that denunciation and deterrence are paramount considerations given the offending you engaged in. The community needs to be protected from this kind of offending which has the potential to endanger or take lives, destroy vast tracts of property and requires the deployment of precious resources to contain. Others in the community need to be discouraged from setting fire to the bush. They need to know that they will be imprisoned if they do, even where it is done on a modest scale and in winter.
46What I am proposing to do at this stage on Charge 1, is record a conviction and place you on a community correction order for a period of 18 months commencing from the completion of your prison term.
47So listen now, Mr Binotto. Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so that you know what it means.
48The following core conditions apply to all community correction orders:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
(c) You must report to the Community Corrections Centre at Shepparton within two clear days following your release from custody.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
49Now, there are a number of other conditions attached to this order, and they apply to you:
(a) You have to perform 100 hours of unpaid community work over a period of 18 months as directed by the Regional Manager. Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(b) You must be under the supervision of a Community Corrections Officer for a period of 18 months.
(c) You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee.
(d) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
(e) You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
(f) You must comply with the conditions of your Justice Plan as directed by the Department of Justice.
(g) I direct that I be advised by your Corrections Officer of any non-compliance of these conditions and I will then determine if the matter should be brought back before me.
50I can only impose a community correction order if you agree to such an order being imposed. So I need to tell you just a little bit more about it.
51If you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.
52You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment.
53So you have got to be extra careful for the next 18 months. You cannot commit any further offences that might incur a term of imprisonment, otherwise you will be back before the court and you will be re-sentenced on these three charges that are now before me.
54I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, in other words a Community Corrections worker, a substantial fine can be imposed.
55Now, Mr Binotto, are you aware of all of that?
56OFFENDER: Yes. Yes, Your Honour.
57HIS HONOUR: You understand that?
58OFFENDER: Yes, Your Honour.
59HIS HONOUR: Do you consent to being placed on a community correction order?
60OFFENDER: Yes, Your Honour.
61HIS HONOUR: Very well.
Sentence
62Mr Binotto please stand.
63On Charge 1, recklessly cause bushfire, you are convicted and sentenced to nine months' gaol to be followed upon your release to a community correction order of 18 months.
64On Charge 2, make threat to kill, you are convicted and sentenced to one month's gaol.
65On Charge 3, make threat to damage property, you are convicted and sentenced to one month's gaol.
66The sentence for Charge 1 is the base sentence. The sentences in relation to Charges 2 and 3 are to be served concurrently with the sentence imposed for Charge 1.
67You have served nine months' presentence detention and I declare this period as time served against the sentence I have imposed.
68You can sit down now, Mr Binotto.
69Pursuant to s 6AAA, I declare that but for your plea of guilty, I would have imposed a sentence of three years' imprisonment with a non-parole period of 20 months.
70An order has been sought by the prosecution for the disposal of a cigarette butt and lighter. That application not being opposed, I order that those items be disposed of.
71Mr Moore, are there any other ancillary orders?
72MR MOORE: No, Your Honour.
73HIS HONOUR: Very well. I thank the parties for their assistance.
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