Director of Public Prosecutions v Caldwell

[2022] VCC 1220

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00356

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL CALDWELL

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2022
DATE OF SENTENCE:	1 August 2022
CASE MAY BE CITED AS:	DPP v Caldwell
MEDIUM NEUTRAL CITATION:	[2022] VCC 1220

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Arson – Financial motive – Scrap metal - Tendency and coincidence - Whether offender more or less morally culpable outside of fire season – Pro-criminal attitudes and history – Close-knit family business

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence: Convicted and sentenced to a term of imprisonment of 5 months; Community Corrections Order of 12 months duration to commence at the conclusion of imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. McCulloch	Ms O. Ventura
For the Accused	Mr M. Murphy	Ms C. Staub

HER HONOUR:

1In this matter, Mr Michael Caldwell was found guilty by a jury of two counts of intentionally causing a fire. Particularly, that he was reckless as to the spread of the fire to vegetation on property belonging to another.  The two offences related to events on 2 August 2018 and 5 August 2018.  The maximum penalty for each offence is 15 years' imprisonment.  Related summary matters have since been withdrawn.

Background

2By way of background, the offending was part of a series of five charges laid by the prosecution.  The jury found Mr Caldwell not guilty of three charges but the background evidence to all of the charges was relevant in that coincidence reasoning was available. I accept, however, that it is only if I find facts proven beyond reasonable doubt that I can take them into account as aggravating features of the offending.  Facts in mitigation are to be proven on balance, that is, more likely than not.

3At the time of offending, Mr Caldwell had a business which included selling scrap to metal merchants. Both fires were lit with the intention of burning flammable material away from discarded goods in order to salvage metal which could then be sold as scrap.  It is not in dispute that the offending occurred on private property which was available for public use.  Thus, the area was open to the public and fires in the area were an understandable public concern.

4For the first fire, approximately 10 to 12 mattresses which had been delivered to your yard, Mr Caldwell, were taken to an area near Cochranes Road, the property of an HVP plantation company.  On the facts before the court and consideration of the evidence presented relevant to Charge 5, three days later, those items were delivered to your property.

5I find and will detail the reasons shortly as to how and why I reach this conclusion on a coincidence basis; that is, the conclusion that you ignited the mattresses with accelerant and left it to burn.  You did not remain in the area to ensure the fire was safe.  You returned three days later to the area on Cochranes Road to salvage the metal springs and the like from the debris.

6On the same day, you caused three smaller fires in the same way, that is, by dumping rubbish, pouring accelerant on the rubbish, and lighting the fires.  On that day, that is 5 August, you spoke to a CFS person and advised that you did not light the fire and that you did not intend to put it out.

Objective seriousness

7In assessing the objective seriousness of the offending, it is a significant aggravating feature of the offending that you lit the fires for financial gain. That is, you lit the fires with the intention of selling the scrap through your business. 

8Your counsel submitted that you were not motivated by malice, nor misguided pleasure in the form of pyromania. That is a lack of an aggravating circumstance and the lack of you being a pyromaniac might be taken into account when considering your risk of reoffending in this particular way in the future.  It is otherwise hardly relevant.

9The requirement of the CFA to extinguish the fire required the use of scarce and valuable public resources.  That is an aggravating circumstance.  Further, the repetition of your actions three days after the first fire was put out shows your complete disregard for the potential risk to the public through the potential spread of the fire.

10Coincidence reasoning allows the court to find that on both occasions, accelerant was used and, on neither occasion, did you take any action to ensure the fire was not in danger of burning nearby vegetation.  The similarities in the nature of the fires, the location and the use to which the fire was put, your undoubted use of accelerant and the fact that much more material was burnt leads to the inescapable conclusion that accelerant was part of your modus operandi on the first occasion.  No other inference is consistent with all of the evidence.

11The fire on 2 August 2018 was of a significant size and so close to vegetation previously burnt, it is only a matter of luck that it did not spread further.  The fires on 5 August 2018 were significantly smaller but there were three of them, and, in any event, extinguished by CFS officers not long after they were lit.  It was the action of the CFS that ensured that the fire did not spread on that occasion.

12The fires were lit in the cooler months of the year.  It was submitted on your behalf that in such circumstances, it would have been unlikely to have spread to adjacent vegetation.  However, by their verdicts, the jury did not accept that the risk was so low as to be negligible, and neither do I.

13The prosecution appeared to concede that the spread of the fire was low, having regard to the time of the year and the location of the fires.  I now have information from the prosecution what the actual weather was on that date.  There is no evidence that it was raining.  The temperatures were between 2 to 18 degrees. 

14There was evidence that a previous fire, for which you were not responsible, had spread to three trees nearby. Their trunks and branches were significantly blackened. This is evidence of the general risk of fire spreading in bushland, notwithstanding mild environmental conditions.

15It is noted that the fires were adjacent to a pine plantation.  The photos tendered at the trial show significant leaf litter and the like on the ground.  Common sense suggests that even on a cool day, a fire could have spread to a vulnerable area.  The information provided by the Bureau of Meteorology do not show that fire spread was impossible, nor unlikely, notwithstanding witness, Mr Neaves' concession that August was generally a wet time of year. 

16It is conceded by the prosecution that the objective seriousness is at the lower end of the scale.  I agree, but not at the lowest level of objective seriousness.  The fires were deliberate.  You used accelerant, thus increasing the risk of spread.  You let them burn out without any care as to whether they did or not and they were lit for financial gain.

17There was significant planning.  That planning included collecting items, taking those items to the site, unloading them, pouring petrol on them, and lighting them.  Your concern for the property in the environment and the public safety were completely lacking.

Criminal history

18You have admitted your criminal record.  It contains a number of entries from the 1970s onwards.  Specifically, in 1990, you were convicted of reckless conduct endangering injury and other offences in 2002, 2005, 2008 and 2015 relate to damage and/or assault matters. 

19The most serious offence to date was in relation to a conspiracy to commit an indictable offence of which you were convicted in 2007, relating to a theft matter. In 2014, you were also convicted of other offences relating to dishonesty.

20You have a number of offences relating to traffic matters.  The most recent being a 2015 dangerous or negligent driving charge while apparently being pursued by police.

Sentencing considerations

21The conclusion from your record must be that you have little regard for society's rules and norms and perhaps less regard than you ought for the safety of the public in general.  Your history of involvement in public disorder and risk based violent offending suggests to the court that specific deterrence is an important sentencing consideration for you.

22You appear to be unconcerned about your offending or the consequences of it.  Your criminal record is, of course, not an aggravating circumstance but must deprive you of any consideration of leniency.  In addition, your prior criminal history presents a greater need for the court to consider the protection of the community in passing sentence.

23It is acknowledged that each sentence must address the particular offending and the circumstances of the offending but, in your case, where the offending was so focussed on your own financial gain, with no regard for the safety of the public in general, specific deterrence does appear to be a very relevant and important consideration.

24Of course, it is always the case that where public arson occurs, there may be a risk to the public.  In those circumstances, general deterrence remains an important sentencing consideration as well.

25In the past, you have offended in ways which show a pattern of offending.  When you were involved previously in the theft of copper wire for the purpose of resale for scrap, you used a similar modus operandi, that is committing an offence with the opportunity of making personal financial gain for yourself.

26OFFENDER:  No, no.

27HER HONOUR:  Yes, sir?

28OFFENDER:  No.

29HER HONOUR:  All right.  I note that in 2007, you were convicted of stealing a significant quantity of ferns and logs from an area.  Again, for the purpose of resale.  The current offending continues to demonstrate your lack of regard for the property of others and public property in general.

Moral culpability

30Your counsel submitted that your moral culpability is reduced for a number of reasons.

31Firstly, you had not left the scene of the fire when the CFS turned up in relation to Count 5.  I find this to be of little assistance to you.  You had only just lit the fire.

32Secondly, it was submitted that there were no longer flames visible when the 2 August fire was reported and when police eventually attended.  This is true.  It is of small assistance but there was no evidence before the court that there were no flames when you left the fire burning and, in any event, fires do not need to be in full flame in order to spread.

33Thirdly, it was submitted that the fire on 5 August 2018 was not very large as it took only one CFA member to extinguish it.  I do not propose what to speculate on what may have occurred had the fire not been promptly extinguished. The jury nevertheless found you guilty of being reckless as to the fire extending.

34It was further submitted that the fires were lit in the depths of winter at a wet time of the year and at a location with a lower fire danger.  That is true.  It was also submitted that there was no intention on your part that the fire should spread.  Although true that intention was never proven, the charge concerned recklessness.

35There is no evidence that the surroundings were wet and I have referred to the Bureau of Meteorology facts that were put before the court and, indeed, as a result of it being a cooler time of year, I have made a finding that the offending rests at the lower range of objective seriousness.

36That being said, I cannot not find that the risk of fire spreading was at the lowest end of the scale.  I find it was lower than it might have been had it been lit on a Summer's day.  You were, however, reckless to the risk.  There is no evidence before the court that you gave any thought whatsoever to whatever the risk was, whether it be high, medium or low.  Again, the jury found your actions to be reckless.

Personal circumstances

37I turn now, sir, to your subjective circumstances.  You are 78 years of age, and it is submitted that this may be a barrier to imprisonment due to potential health risk factors.  It is a matter to be considered. 

38I note that in the videos tendered, you appeared to be relatively physically able (granted, these videos are now 4 years old). I note that you were still driving and apparently still do. 

39I am also told that you were educated to primary school level but are unable to read.  I acknowledge the inherent difficulties this may cause, but it seems that this has not hampered your ability to work and be self-sufficient.

40In the past, you worked on the family farm from a young age. You also operated your scrap metal business. You have further worked as a truck driver. 

41I note that, sadly, you have had much personal tragedy in the last four years due to the death of various members of your family, including the death of your wife four years ago.

42You have a large number of children, grandchildren, and great grandchildren. You have a large and close-knit family surrounding you.  I note that you reside with your family, and that you have close family connections.  The scrap metal business is also managed by your sons and extended family. 

43You do not have alcohol or substance abuse issues.

44I have received a neuropsychologist's report from Ms Scott.  Her conclusions are that you have a poor planning ability and struggle to fully appreciate the consequences of your actions.  These observations are relevant to the current offence. 

45There is no evidence, and the Crown did not allege, that you lit the fire with any intention that it should spread and cause damage.  The gravamen of the offending is that you did not give any thought to the offending or you simply did not care.

46The psychologist, Ms Scott, is suspicious that you have a neuro-developmental disorder but was ultimately unable to make such a conclusion.  You do not want this to be investigated.  I note that despite prompting, you did not wish to participate in further assessment programs.

47That is your right, but it does limit the information that the court is able to have about you.  I acknowledge that such matters can be confronting and difficult.  These are matters which relate to your own privacy and, in my view, should not be forced.  To do so may well be counterproductive.  I accept that.

48I do observe, however, that when you wish to do so, you can engage productively with Corrective Services and that you have done so in the past.  After a short term of imprisonment, you will be given the opportunity to so do again.

49Ms Scott and your counsel point to the obvious risk of contracting an illness during this current pandemic whilst you are in custody and therefore in close quarters with others.  This is accepted. 

50Of course, risks exist both inside and outside a custodial institution but I accept that the risks are greater inside a custodial institution.  It is a matter that must be considered and will be taken into account when assessing the term to be imposed.

51I note that pursuant to the serious offender's provisions of the Sentencing Act, if you were sentenced to a term of imprisonment for Count 4 you fall to be sentenced as a serious arson offender in relation to Count 5.  That being the case, the court must regard the protection of the community as the principal purpose for which the sentence on Charge 5 is to be imposed.  I have referred to this as a sentencing consideration.

52The fact that the fires were only three days apart underlines your lack of regard for the property of others.  Sensibly, however, the prosecution do not seek that I impose a sentence longer than one which is proportionate to the gravity of the offence in light of its objective seriousness.  I agree.

53Imprisonment is and must be a last resort in any sentencing consideration. It must only be imposed when the objective seriousness, circumstances of the offending and those of the offender militate against a non-custodial alternative.

54I have also considered the comparative cases table.  None of those cases reflect your position nor your offending.  Each offender either pleaded guilty or had significant mitigating factors affecting the assessment of their moral culpability.  They undoubtedly received sentences which acknowledged remorse and substantial rehabilitation prospects. These matters do feature in your case.

Remorse

55Notwithstanding the finding of the jury, you still do not seem to accept responsibility.  This is one of those cases where there is no alternative but a custodial sentence.  The need for specific deterrence and the protection of the community are strong considerations in your case.  However, considering the lower level of objective seriousness of these offences, a short sentence combined with supervision is the appropriate disposition.

56Hopefully, a community corrections order following a term of imprisonment will assist you and reduce any risk of reoffending in the future.  Supervision is proposed, as are programs to reduce your risk of further offending. Your self-focussed and antisocial actions are not in the best interests of yourself or the community at large.

Sentence

57In relation to Count 4, which is the charge relating to 2 August, I sentence you to a term of imprisonment of five months to commence today.  I note there appears to be agreement that there has been no pre-sentence detention.

58In relation to Count 5, for the reasons that I have given, I sentence you to a community corrections order for a period of 12 months which will commence at the conclusion of your term of imprisonment.

59I have a further application for the forfeiture of the motor vehicle that was used in the commission of these offences.  There are many reasons to make that order.  The vehicle was in some ways central to the commission of the offence, as was the trailer that was used. 

60It is conceded by the prosecution, however, that the forfeiture order would amount to additional punishment.  It was also conceded, very fairly I might add, that you live in a relatively remote area and a motor vehicle is no doubt required to get you from Point A to Point B when you return home.

61In the circumstances, you have been without the vehicle for four years and I do not propose to make the forfeiture order that is sought. This decision is intended to assist you with your rehabilitation and to facilitate your ability to comply with the community corrections order upon your release.

62The jerry can is also the subject of a forfeiture and disposal order and I believe there is no opposition to that order being made. I will so make it.

63The mandatory terms are, when the order commences:

that you comply with all the directions of Community Corrections;

that during the 12-month period from the commencement of the order, you must not commit other offences for which you could be imprisoned during the time the order is enforced;

you must comply with the obligations;

you must receive visits from Community Corrections;

you must report to Community Corrections within two clear days of your release from custody;

you must let a Community Corrections officer know within two clear working days of changing your address or employment;

you must not leave Victoria without first getting permission from the secretary's delegate;

and you must accept supervision for the period of one year;

you must participate in programs and/or courses that address factors relating to the offending as directed by Corrections.

64HER HONOUR:  Thank you very much.  We will adjourn now.