Director of Public Prosecutions v Bux

[2020] VCC 1601

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00541

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN BUX

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2020
DATE OF SENTENCE:	5 October 2020
CASE MAY BE CITED AS:	DPP v Bux
MEDIUM NEUTRAL CITATION:	[2020] VCC 1601

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Jones	Office of Public Prosecutions
For the Accused	Mr D. Swan	Victoria Legal Aid

HIS HONOUR: 

1Adrian Lee Bux, you are to be sentenced for two charges of intentionally causing a bushfire.  The maximum sentence for that offence is 15 years' imprisonment.  You are also to be sentenced for the summary offence of committing an indictable offence on bail.  The maximum sentence is three months' imprisonment. 

2You pleaded guilty before me on 25 June.  When interviewed by police on
2 January 2020 you made full admissions to both occasions of the offence.  You acknowledged the danger of what you did.  The committal went by hand-up brief on 7 February, after which you entered a plea of guilty.  The matter was then listed for plea hearing in the County Court. 

3You receive the benefit of your early plea of guilty and that cooperation in the proceeding.  Your plea has facilitated the interests of justice, accepted responsibility and expressed remorse.

4At your plea hearing, on 25 June and 2 August, Ms Jones for the Crown tendered a written summary of prosecution opening and a Google map of the areas where you lit the fires.  Mr Swan, for you, tendered the forensic psychological report of Warren Simmons, dated 18 April 2020, the neuropsychological report of Susan Carey, dated 18 June 2020, the letter in support by Kelli Burdini, alcohol and other drug nurse with Rumbalara Aboriginal Co-operative in Shepparton, and the letter of your sister, Melissa Lovell.  Both counsel also provided written outlines of submissions and then further submissions on sentence.  I was provided with a table and summary of comparative sentencing cases.

5On 25 June I adjourned the matter and under s.80 of the Sentencing Act requested a statement of intellectual disability and relevant reports under the Victorian Disability Act.  I have received that statement and also a Disability Overview Report and Justice Plan by Paula Sheargold of Forensic Disability Services under the Department of Health and Human Services.  They are dated 27 August 2020.

6The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own description may therefore be shorter. 

7You are a 45-year-old man who is intellectually disabled, having been a client of Disability Services since 1998.  You lit two fires almost two years apart, both in bushland area on the Goulburn River near Shepparton.  The two fires were on the outskirts of the town and thereby not far from residential areas.

8On the night of 10 to 11 March 2018, you were camping on the river near your brother and his partner.  The two campsites were a short distance, about
100 metres apart.  You were smoking cannabis.  I find that you were affected by that and alcohol.  Shortly before 2 am, there was an argument.  You left and soon after lit a fire in bushland nearby, using petrol as an accelerant.  Your brother reported it and it was brought under control shortly after.  This required a water bombing helicopter.  About 20 to 30 metres x 15 metres of bushland was burned.  It was clear that you were the offender.

9The Crown summary states that you could not be located over the following months but remained 'flagged' for interview.  You certainly came under notice in November 2019 in that on the 3rd of that month you were released on bail by Shepparton police to appear at court for charges including possession and use of amphetamine.  You were not interviewed about the March 2018 fire.

10On 2 January 2020, you were again camping on the river at a different spot but similarly  distanced from the township.  Again, there was an argument with your brother, who decided to move camp.  At about 7.30 pm, a short distance away, about 50 metres, you started a fire in long grass.  You stated to police that you used a cigarette lighter.  It was quickly put out.  About 15 metres x 10 metres of bush or grassland was burned.  You were intoxicated and at 8.30 pm you were arrested by police in Shepparton.

11The 2 January 2020 fire was on a fire-restricted day.  There was a temperature recording of 36 degrees.  The summary offence is essentially the lighting of the fire on 2 January 2020, you having been bailed on 3 November 2019.

12You are 45 years old, an Aboriginal man of the Yorta Yorta people.  You have lived in the Barmah and mainly Shepparton areas.  Neuropsychologist Susan Carey diagnoses possible alcohol fetal syndrome, an established intellectual disability and likely acquired brain injury caused by long-term substance abuse.  Consistent with such a brain injury is that your intellectual ability has deteriorated since first being assessed as eligible for Disability Services in 1998.  Ms Carey assessed you as a full score IQ of 59.  It was measured at 70 in 1998.  You also suffer substance abuse disorder.  Although there is no formal diagnosis of a depressive-like condition, you have self-harmed.

13You are one of seven children.  One sister has died.  Another sister, Melissa Lovell, is particularly supportive of you.  Her letter is tendered and states that you may live with her when released from prison.  You have a volatile relationship with the brother against whom you acted when lighting these two fires.  Your upbringing was hard and, to a point, neglected.  There was what is described as severe discipline, although you speak positively of your father.  Your parents separated, it seems when you were in early teenage.  Your mother was a heavy drinker.  Both are now deceased.  Schooling was not successful. You left in Year 7 and do not read or write. 

14Both psychologist Warren Simmons and neuropsychologist Susan Carey report some doubt about your accuracy as a historian.  However, records at Rumbalara Aboriginal Co-operative suggest that you may have sniffed petrol as early as at six years of age.  Into adulthood you have mainly abused alcohol and cannabis.  There has been little treatment for this, although counselling at Rumbalara had some benefit in about 2017.

15As an adult you have mainly lived camping in bushland near Shepparton, as you were when you offended on both occasions.  You have received a disability pension for many years. 

16Your criminal record states between April 1994 and October 2016 a large number of prior court appearances.  There are offences of dishonesty, violence, and against property.  There are many driving offences and there are also so-called street offences.  Several appearances are for criminal damage or like offending.  You have been placed on community based orders, unsuccessfully.  There are a number of sentences of imprisonment.  There is no prior conviction for arson.  It is a criminal record sadly consistent with your disability, drug and alcohol abuse, and a badly disadvantaged young life.

17Arson is self-evidently a serious offence.  The objective circumstances here feature a number of adverse factors.  The fires were close to the Shepparton township and to other people.  The second fire was lit on a fire dangerous day.  You committed both offences in anger, to scare, you said, your brother.  There is the fact of a second repeat fire, one of marked similarity to the first.  Your intoxication cannot be seen as a directly mitigating factor.

18The circumstances of offending and your criminal history make relevant sentencing considerations of moral culpability, deterrence, condemnation of such offending and punishment of it. You are to be sentenced as a serious offender under Part 2A of the Sentencing Act.  Accordingly, community protection becomes the principal sentencing purpose.   However, I do not find that a longer than proportionate sentence is necessary to meet that.

19These sentencing considerations and purposes require imprisonment. The usual sentence would be that of a head and minimum term. The Crown submits that to be the right sentence here. It is put on your behalf that I should impose imprisonment; but that the overall sentence should combine that and release on a community corrections order. That should include the support of and compliance with a Justice Plan under s.80 of the Sentencing Act.  There are a number of factors which support that.  They including the following:

'(1) Your plea of guilty and cooperation.  Your level of insight is compromised by your cognitive deficits.  However, I find that you are, within those limitations,  remorseful.

(2) Your personal history of circumstances.  Principles stated in such cases as Bugmy apply.  For example, whilst your substance dependence and intoxication when offending offers no mitigation of the seriousness of it, it is relevant that you came to that substance abuse when young, in deprived circumstances and burdened by intellectual disability.  You had much the less capacity and support than others to manage that.  Your life has suffered since.

(3) Related to personal circumstances, I find that the Verdins principles are to some extent relevant.  The expert evidence of neuropsychologist Susan Carey supports that your intellectual and brain injury impairments played a role independent of intoxication.  She states:

"Altogether, even when abstinent from substance abuse, Mr Bux is cognitively vulnerable to having difficulties controlling his impulses, thinking through the various options available to him, weighing the pros and cons of each option and controlling his behavioural/emotional responses.  As such, I am of the opinion that Mr Bux's cognitive disability likely contributed to some degree to his poor decision-making that resulted in the offending behavior”’.

Your moral culpability is to some extent reduced, deterrence less predominant, and imprisonment likely more difficult  than for many others. As to that, I have also taken into account additional hardship for those imprisoned by the COVID-19 pandemic.   That relates to risk, anxiety, loss of movements, access to programs and family support.  I also note, conceded by the Crown, particular hardship for Aboriginal prisoners.

'(4) Prospects for rehabilitation cannot be said to be good.  In my opinion, it is more likely in a sentencing regime aimed at it; but specifically tailored, for example under a Justice Plan, to your impairments.

(5) Delay is also relevant, although not in the ways usually raised.  I find that there is no satisfactory explanation that you were not interviewed and charged for the first fire more quickly and well prior to the second fire.  This was raised and discussed with counsel, particularly on 2 October.  I do not accept that sufficient and proper inquiry would not have located you, likely early on.  An alert within the police system called “Whereabouts”  failed to meet its purpose later in November 2019 - because of error, whether electronic or human is not absolutely clear to me.  I do not see it as speculative but rather as likely that had you been so located, that is within a reasonably and practicably short time, you would have been interviewed, charged, and brought before the court prior to the time of the second fire.  The difficulty is how to place this failure and delay within proper or relevant sentencing considerations.  It certainly does not absolve you from responsibility for the second fire.  It does not lessen the community risk that now must be addressed.  However, the situation raised here underline the need for investigation and the criminal justice system to proceed as quickly as reasonably practicable if the objectives of it, for example specific deterrence, rehabilitation, and community protection, are not to be compromised.  The delay here is something that, whilst not paramount, should be seen as relevant to what sentence I impose'.

20(6)   Finally, on the question of community protection,  it is important, both in the light of your cognitive impairment and repetition of the offence.  Ultimately, I see the community to be likely better protected by a sentence that can focus on rehabilitation and assistance, as I have said, tailored to your particular needs,  as well as punishment. 

21I also see this as a case in which legitimate sympathy for your situation and a more merciful sentence is justified. 

22I have had reference to the comparative sentencing cases provided.  However, I also bear in mind the need to sentence individually to your case.  I have decided that a combined sentence is the proper one.  There should be a community corrections order upon release, after a further period of imprisonment.  That order, combined with the imprisonment, should impose both punishment and the attempt to assist and rehabilitate you.

23I have received the report of community corrections officer Paul Sguerzi which finds your suitable for such an order.  The tendered report of Kelly Burdini of Rumbalara Aboriginal Co-operative also states that support, including drug and alcohol counselling, can be given to you by that agency.

24As to cumulation of your prison sentences, I have attempted to apply the principle of totality but also bear in mind the provisions in Part 2A of the Sentencing Act about cumulation of serious offender sentences.  There should  not be full cumulation between the two charges. 

25I formally sentence you as follows.

26On Charge 1, arson, you are sentenced to eight month's imprisonment.  On Charge 2, arson, you are sentenced to 10 month's imprisonment.  I direct that four months of the sentence on Charge 1 be served cumulatively on the sentence for Charge 2.  That is a total sentence of 14 months' imprisonment.  I declare under s.18 of the Sentencing Act 278 days of pre-sentence detention already served.  I hope I stated that correctly.  It is eight months on Charge 1, 10 months on Charge 2, four months of the eight-month sentence to be served cumulatively on the 10-month sentence.

27As to the summary offence, bearing in mind that you should not be doubly punished, and also the circumstances related to your release on bail in November of 2019, that is, despite the need to arrest you for the first fire, I convict and discharge you under s.73 of the Sentencing Act.

28Combined with the sentence of imprisonment I also impose a community corrections order of two years duration to commence upon your release from prison.  The usual terms apply.

29The additional conditions are that there be treatment and rehabilitation for drug use, treatment and rehabilitation for alcohol use, treatment and rehabilitation for mental health, that there be supervision, that there be treatment and rehabilitation by program to reduce re-offending specifically related to the offences that you have committed.  Also that there be a compliance with the justice plan filed in the court and that there be judicial monitoring and I will give a date for that in a moment or two.

30Well, I indicate under s.6AAA that had you not pleaded guilty I would have imposed a sentence of three and a half years with a minimum term of two years.

31Now, what are the other matters that I need to deal with, Ms Jones?

32MS JONES:  Your Honour, there's also an application for a disposal order.  Which if I recall correctly Your Honour indicated at the first listing of the plea would be made.  It's with respect to some items that were seized by police in relation to the 2018 fire, a cigarette lighter and a red jerry can.  It's not opposed.

33HIS HONOUR:  Yes, I will sign the disposal order.  Anything else?

34MS JONES:  No, Your Honour.

35HIS HONOUR:  All right.  Now I will just have that order printed out.  Just to assist my associate, additional conditions are treatment and rehabilitation in relation to drug abuse, treatment and rehabilitation in relation to alcohol abuse,  treatment and rehabilitation in relation to mental health, treatment and rehabilitation in relation to programs specifically related to these offences to reduce the offending, supervision, compliance with the justice plan filed with the court and judicial monitoring.  That date should be two months after release.

36Am I right, release is a little under five months from now; is that right?  People agree with that?

37MS JONES:  Yes, Your Honour.

38HIS HONOUR:  Yes.  Well, I will make it - I will thereby make the judicial monitoring seven months from today.  What date is that?

39ASSOCIATE:  May next year.

40HIS HONOUR:  May next year, are we sure about that?

41ASSOCIATE:  No, I just guessed.

42HIS HONOUR:  No.

43ASSOCIATE:  I shouldn't guess.

44HIS HONOUR:  It's October.  November, December.

45ASSOCIATE:  May.

46HIS HONOUR:  Can you work it out?

47ASSOCIATE:  May.

48MR SWAN:  I'm in agreement, Your Honour, I think May next year would be seven months from today.

49HIS HONOUR:  May.  May next year.

50ASSOCIATE:  Yep.

51HIS HONOUR:  Seven months, all right.  What's the expected release date, is that in March or is ‑ ‑ ‑

52MR SWAN:  Can I just confirm, Your Honour, is it 14 months of imprisonment between Charges 1 and 2, is that correct?

53HIS HONOUR:  Yes.

54MR SWAN:  So expected release date would be March, taking into account the pre-sentence detention.

55HIS HONOUR:  Yes.  That sentence is within the provisions provided in the Sentencing Act at s.44.  It probably meets the requirements of s.44, if s.44(1)(a) did not exist, I take it.  You deduct the pre-sentence detention to come up with something under 12 months.  Have I got that right, Ms Jones?

56MR SWAN:  Yes, Your Honour.

57HIS HONOUR:  Yes, I've got it right, all right.

58Yes, eight months on Charge 1, 10 months on Charge 2, four months of
Charge 1 cumulative on Charge 2, 14 months.  Two-seventy-eight days of
pre-sentence detention.

59And I don't think I need to repeat it there, convict and discharge under the summary offence.

60MS JONES:  As Your Honour pleases.

61HIS HONOUR:  Sorry, what was that, Ms Jones?

62MS JONES:  I just said as Your Honour pleases.

63HIS HONOUR:  Yes.

64MR SWAN:  Please the court.

65HIS HONOUR:  All right, just let me look at this.  What happens we send this - I'm looking at the community corrections order.  We send this to the relevant prison or does it ‑ ‑ ‑

66MR SWAN:  Yes.

67HIS HONOUR:  Or should it go to your instructors?

68MR SWAN:  I think in previous matters, Your Honour, it's been sent to the prison and has been able to sign - be signed at the prison.

69HIS HONOUR:  Are your instructors the Victorian Aboriginal Legal Service?

70MR SWAN:  No, VLA in the Shepparton office, Your Honour.

71HIS HONOUR:  I see.  Doesn't the Aboriginal Legal Service have a representative in Shepparton anymore?

72MR SWAN:  I believe they do, I can't say that with certainty but I believe there is an office still active up there.

73HIS HONOUR:  All right, thank you.

74So should it go to the VLA office in Shepparton this order or should it go directly to the prison?

75MR SWAN:  Given it will need to be signed by Mr Bux perhaps if it goes directly to the prison and he's currently at Ravenhall Correctional Facility.

76HIS HONOUR:  All right, thank you.

77So, Mr Bux, when you leave prison in about five months' time you have to obey a community corrections order.  If you don't obey it you will come back before me and I will have to re-sentence you, that is sentence you all over again.  You understand that?

78OFFENDER:  Yes.

79HIS HONOUR:  All right.  You know what that means, don't you?

80OFFENDER:  Yes, I do.

81HIS HONOUR:  We start again and I don't see how I could avoid sending you to prison for a longer period.  Don't see how I could avoid that.

82All right, so these are the conditions for the community corrections order.  You must attend at the Shepparton Community Corrections Office within two days of release from prison.

83You must not commit another offence for which you could be imprisoned during the order.  You must comply with this or obey this, that you do not go to any appointment, program or anything like that under the order affected by alcohol or drugs or in possession of illegal drugs.  That would include cannabis.

84You must report to and receive visits from Community Corrections.

85You must let Community Corrections know within two days of a change of address or job.

86You must not leave Victoria without first getting permission from Community Corrections.  You must obey all of their lawful instructions to you.

87Now, do you understand those things?

88OFFENDER:  Yes, I do.

89HIS HONOUR:  Now there are special conditions.  You must be under the supervision of a particular - of a Community Corrections officer, to be named.

90You must undergo assessment and treatment for drug abuse.  You must undergo assessment and treatment for alcohol abuse.  You must undergo mental health assessment and treatment as you are directed.

91You must take part in programs that address or deal with factors related to your offending.  Now that would be related to lighting fires, I would think.

92You must attend before me on 5 May 2021 for judicial monitoring.  I want to see how you are going, all right?

93OFFENDER:  Yep.

94HIS HONOUR:  Now, you must also obey, that is take part in the justice plan that has been filed with the court.  So you need to make contact with Disability Services about all of that.  These people will contact you in prison before your release date.

95Now, do you understand all of those things?

96OFFENDER:  Yes, I do.

97HIS HONOUR:  All right.  And you understand what will happen if you do not obey this?

98OFFENDER:  Um, facing you again.

99HIS HONOUR:  You do, you do, that's exactly right.  Do not forget that, will you?

100OFFENDER:  No, I won't.

101HIS HONOUR:  All right.  Now I'm going to sign the order and we're going to send it out to Ravenhall and then you need to sign it as well.  Look, I think I'll send it also - a signed order - to VLA in Shepparton so that they can monitor the process, Mr Swan.

102Now is there anything else I need to do?  I need to sign the disposal order, I'm going to do that now.  Yes, all right.

103All right, now thank you for your assistance over the period of this proceeding, both of you.  It's been considerable.  It's had its unusual aspects.

104All right, I'll now stand the court down and that means you'll all be turned off, thank you.

105MR SWAN:  Please the court.

106MS JONES:  As Your Honour pleases.

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