Director of Public Prosecutions v Brown

[2016] VCC 378

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-15-00617

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN BROWN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	5 April 2016
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2016] VCC 378

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	Mr K. Doyle
For the Offender	Mr A. Hands

HIS HONOUR: 

1Ryan Brown, you have pleaded guilty to one charge of intentionally lighting a bushfire.  That crime carries a maximum penalty of 15 years' imprisonment. 

2You are now 24 years of age.  You get the benefit of pleading guilty in that I accept that there is, at least now, appropriate remorse.  You must also of course get the utilitarian benefit of that plea.

3You do have prior matters in the court system but they are of no significance in this particular sentencing option.  Of some significance is that you have subsequently been given a community corrections order for dissimilar offending and have been able to complete that.

4The circumstances are that you are still a youthful offender, if not a young offender.  Insofar as your original behaviour in terms of denying is concerned, I can understand in your situation denial is not an unnatural way to go and that the fear of having to admit to what you have done has probably dictated how this matter has proceeded to a certain extent.  I accept that were attempts to resolve in the Magistrates' Court, which for whatever reason did not bear fruit.

5The circumstances of the offending are that on 2 March 2014, in the early hours of the morning, you purchased two cigarette lighters at Rawson.  At approximately 10.35 am a witness saw smoke rising from a road near Erica. 

6The Captain of the Erica CFA arrived at the road with another tanker and a fire was burning.  The fire was about five metres square in size.  It was extinguished.  The Captain of the CFA also noticed a red cigarette lighter lying on the road near the fire and that lighter was seen by another person, that being Ms McWilliams.  The cigarette lighter was seized and there was DNA on it which was 100 billion times more likely to be that of you than any other member of the Caucasian population.

7At the time of the fire, the temperature at the site was between 15 and
20 degrees, humidity between 66 and 60 per cent and the wind speed around about four kilometres an hour on the forest floor.  They are not ideal conditions for a fire to spread, but on the material before me does indicate that it would have taken some effort to light it.  In any event, there is no need for me to go through all the expert material, you have pleaded guilty to doing it.  It is fortunate indeed that the damage, if it can be accurately called that, was so limited.

8When police ultimately arrested you, you basically lied, said you had not done it.  It became clear from the owner of the Rawson store that you had bought the cigarette lighters.  It was in that conversation with you during a break in the record of interview where apparently, I have been told, that DNA would be taken, you essentially confessed to lighting the fire but claimed it was an accident.

9It was not, as I said, a total fire ban.  Temperatures were low, there was no property damage as such and, in fact, no actual risk occurred to other people.  However offending such as this has to be regarded as serious, there has to be an element of general deterrence and there has to be an aspect of denunciation.  Obviously an appropriate punishment must also be put in place. 

10I am prepared to accept in your situation that this behaviour was out of character and sentence on that basis.  You will be fully aware that were you to offend again in such a way an active custodial sentence would be almost, I would have thought, unavoidable.

11Your family circumstances are that you have good family support.  You are working in Moe as a boiler maker about five to six days a week.  You are in a relationship.  Your father is in the CFA and I accept that your behaviour has caused mortification to your family and that people in the area of Erica would know well about what has occurred. 

12I accept also that as a consequence of all this you had the matter hanging over your head for some two years and that there has been a reactive depression and the use of stimulants in an attempt to self-medicate.  It is also the situation that now that you have been charged with these matters and now that you will have the conviction which I intend to impose, that whenever there is a day of total fire ban or fires are lit, you will be brought to police attention.  That is a punishment which will go on for, I would have thought, a very long period of time.

13When you were a child you were diagnosed, as I understand it, with ADHD and were placed on Ritalin.  What that has got to do with it, I do not know, but it may well have.  In any event, that is the situation which you fall to be sentenced.  As I made it very clear during the course of the plea, had this been a day of total fire ban, or had you fought this trial out and lost, I almost certainly would have incarcerated you.  That is not the case. 

14I have had you assessed for a community corrections order on the basic principles outlined in Boulton.  I accept that that is an appropriate and sufficient punishment for you.  There is sufficient community protection involved in such a disposition and that general deterrence adequately provided for in my doing that.  It must be a community corrections order which shows the seriousness of what you did.  It will be with conviction which is a punishment in itself.  There will be a component of 200 work hours.  It will be over a period of three years.  There will also be put in place supervision as well as the offenders programs to endeavour to ensure that this does not occur again.

15Counsel are both aware of the programs that have been suggested by Corrections and are well aware of the reasons for that. 

16The prospects of your rehabilitation are up to you.  I think that there is very small risk, if any, of you re-offending in this way, as I am sure that you understand that the consequences of so doing would be dramatic indeed.

17In all those circumstances, if you agree, that is a community corrections order that you will enter into and that will hopefully be the end of the matter.

18HIS HONOUR:  There are no ancillary matters, I am assuming?  A 464 would have been automatic.  I am just wondering whether there was a forfeiture order or a disposal order.  Probably a disposal order, is there not?

19MR DOYLE:  For the lighters, I suppose.

20HIS HONOUR:  For the lighters.

21MR HANDS:  We consent to that, Your Honour.

22MR DOYLE:  Can that be forwarded to Your Honour?

23HIS HONOUR:  That can be done in Chambers later, I have go no trouble with that, as long as no-one tries to track me down within a year's time, that is when it is difficult.

24MR DOYLE:  Yes.

25HIS HONOUR:  All right.  You have heard what has happened.  All right, now you have got to understand if you did this again, all right, you would be going through that door and it would be for a pretty long time.  All right?  You must understand community attitude towards this sort of thing and there will be no second chances, I can promise you that. All right?  If you breach this CCO by offending, showing disrespect in that respect, you would also be a chance of going through that door, all right. 

26All right, thanks for that.  Thanks, Mr Hands.  Yes, you can be discharged.

27(Community corrections order signed and acknowledged.)

28(At this stage the court proceeded with another matter.)

29Thanks for that.  Thanks, Mr Hands.

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