Director of Public Prosecutions v Dale-Williams

[2019] VCC 567

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01609

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIERAN DALE-WILLIAMS

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2019
DATE OF SENTENCE:	26 April 2019
CASE MAY BE CITED AS:	DPP v Dale-Williams
MEDIUM NEUTRAL CITATION:	[2019] VCC 567

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:              Sentence – Intentionally damaging/destroying property – arson – attempted theft

Legislation Cited:     Sentencing Act 1991, Crimes Act 1958, s74, s197(1), s197(6), s321M

Cases Cited:Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43

Sentence:2 year Community Correction Order with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Solicitor for the OPP
For the Accused	Mr M. Kozlowski

HIS HONOUR: 

1Kieran Dale-Williams, you have pleaded guilty to one count of intentionally damaging property, contrary to s.197(1) and s.197(6) of the Crimes Act 1958; and one count of arson, contrary to s197(6) of the Crimes Act 1958.

2The circumstances of your offending were set out in the summary of prosecution opening, which was tendered at your plea hearing.  In summary, the circumstances of your offending are as follows: 

3Firstly, on 11 February 2018, you, together with associates who have not been identified to date, were walking in Wodonga.  You observed in the driveway of premises at Kerilleau Drive Wodonga, a parked Holden Commodore sedan belonging to the complainant.  The complainant was not known to you.  One of your associates jumped on the roof of the vehicle.  You removed one of the vehicle's hubcaps and handed it to an associate. 

4On 9 March 2018, you participated in a record of interview with police, in which you admitted intentionally damaging that vehicle. 

5This conduct constitutes the charge of intentionally damaging property, being Charge 1.

6Secondly, in the early hours of 6 March 2018, you and other co-offenders were walking in Wodonga, looking for a car to steal. 

7At approximately 3.30 am, you observed an 85 foot boom lift at a park in Wodonga. It was a large diesel-operated machine.

8You and your other co-offenders covered your hands with t-shirts so as not to leave fingerprints.  You shone your mobile phone torches to view the boom lift. 

9Your co-offenders attempted to start the boom lift by pushing a number of buttons on the control panel, but were unsuccessful.

10You and an associate, Mr Herbert, moved to the petrol tank of the machine.  He severed the fuel line, causing diesel to flow onto the ground.  You then assisted him to light the fuel and set the boom lift alight.  That conduct constitutes the offence of arson, which is Charge 3.

11You and your co-offenders all then ran from the area.  You did not call the fire brigade or call for any help to extinguish the fire.  Shortly afterwards you returned to the park to watch the fire burn. 

12The boom lift was destroyed by the fire and is not repairable.  A total loss to its owner is $190,000, comprising the replacement cost of $186,000 and the loss of equipment, including harnesses and sign writing on the boom lift that were also destroyed in the fire. 

13You initially denied to police lighting the fire, but later in the police interview made a limited admission.  You made a later statement to police on 14 March 2018 where you made further admissions.

14The maximum penalty for intentionally damaging property is 10 years' imprisonment.  The maximum penalty for the offence of arson is 15 years' imprisonment. 

15The principles pursuant to which I may sentence a person for committing a crime in this State is set out in s.5 of the Sentencing Act.  The only purposes for which sentences may be imposed are:

(a) To punish the offender to an extent and in a manner which is just in all of         the circumstances; 

(b) To deter the offender or other persons from committing offence of the same        or similar character;

(c) To establish conditions within which it is considered by the court that the        rehabilitation of the offender may be facilitated;

(d) To manifest the denunciation by the court of the type of conduct in which       the offender engaged;

(e) To protect the community from the offender.

Or a combination of two or more of those purposes. 

16I am required to take into account when sentencing you, a number of matters:  The maximum penalty that Parliament has decreed for the crime in question; current sentencing practices; the nature and gravity of the offence; your culpability and degree of responsibility for the offence; the impact of the offence on any victim of it; your personal circumstances and the personal circumstances of any victim; any loss or damage resulting directly from the offence; whether you pleaded guilty to the offence and if so, the stage of the proceedings at which you did so; your previous character; and the presence of any aggravating or mitigating factors concerning you or other relevant circumstances.

17Mr Dale-Williams, you have a prior conviction entered in the Wodonga Magistrates' Court on 13 February 2018 for committing criminal damage (with intent to damage or destroy).  Without conviction, that matter was adjourned until 13 February 2019, on the condition that you saw a general practitioner as soon as possible for assessment and treatment, if thought necessary and obeyed all lawful instructions of the general practitioner.  I have got no evidence before me as to your attendances on a such general practitioner, but in the absence of any evidence to the contrary, I will assume that you have complied with those conditions. 

18In November 2016, you were found guilty of unlawful assault.  That was also the subject of an adjournment without conviction. 

19By way of background, you are currently aged 20.  At the time of your offending, you were aged 19. 

20You are the youngest of two children of your parents.  They separated when you were very young.  You have reported having a good relationship with both of them. 

21You grew up in the Wodonga area, attending local primary schools.  You attended one half of Year 7 at a local secondary school and thereafter, left school.  You had one-on-one tutoring due to severe behavioural problems in a classroom setting.  You continued at secondary school to Year 10.  You have advised that you had learning problems at school and can barely read.  You have never engaged in any paid employment since leaving school.

22A report from Ms Carla Lechner, a clinical psychologist, dated 16 November 2018, was tendered on your behalf.

23She noted that you are the recipient of a disability support pension.  Somewhat surprisingly you told her that you are not aware of the nature of your disability.

24It seems that you have lived with your mother, but saw your father every second weekend, until you had a falling out with him some two years ago.  I was told you have had no contact with him since.

25I note that you informed Ms Lechner that one of your mother's partners behaved violently in the home setting. 

26Ms Lechner considered that:

·    You had a fairly limited prior history of offending

·    You had a past history of learning, social, behavioural and emotional problems. 

·    You had previously been diagnosed with attention deficit hyperactivity disorder and obsessional defiance disorder in your formative years, with features of anxiety and depression. 

·    You are now exhibiting symptoms of what she described as an intermittent explosive disorder, an impulse control disorder, in addition to experiencing ongoing low and anxious mood.

·    You had a history of self-medication with cannabis in your mid-teens, but apparently not lately.

·    Your prickly temperament and problems with emotional and behavioural regulation have undermined your ability to sustain employment and social networks.  She reported that as a consequence, you spend most of your time in your room playing video games. 

·    She reported that you had expressed to her regret and shame for your offending behaviour. 

·    She stated that you did not present with any pyromaniac interests or obsessions and were unable to explain why you got involved in this offending behaviour. 

·    She considered that you are likely to benefit from involvement with treatment services and from having a case manager who could assist you in attending appointments and with whom you could develop a positive relationship.

27Ms Lechner opined that you would benefit from one-on-one skills training with a skilled clinician who was able to establish a rapport and work with you on improving your level of impulse inhibition, anger management and emotional regulation.  Further she thought that you might need medical opinion regarding the possible benefits of mood stabilising medication. 

28There are a number of aggravating features of your offending. 

29The machinery that you assisted in destroying was, as would have been obvious to you, expensive.  It was a large piece of complex machinery.  The loss suffered by the complainant was $190,000.  Although you may not have known its precise value, you would have known that this was never going to be minor damage. 

30There was no reason at all for your actions.  You had no reason for interfering with the boom lift, let alone destroying it by fire.  Your conduct is simply unexplained.

31Although the lighting of the fire may have been somewhat impulsive and not planned, I do note that on the morning in question, you commenced your activities with your co-offenders and others, walking the streets of Wodonga, looking for a car to steal.  It appears that it was always your intention on that morning, on way or the other, to engage in serious criminal behaviour. 

32This offence, the arson offence, occurred less than a month after you had committed the intentional damage to the car, the subject of Charge 1. 

33I can only infer that you are a person who obtained some bizarre pleasure or satisfaction in damaging expensive items of property belonging to other people.

34At the time of your offending, and presently, you are classed as a "young offender".  Your young age is a primary consideration for a sentencing court. 

35In the case of a young offender, rehabilitation is considered by the courts to be more important than principles of deterrence.[1] 

[1]Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43

36I accept that incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation. 

37Notwithstanding, although in many cases a young person will act impulsively and lack foresight, I do not consider or accept that your breach of the law on that morning was impulsive, nor do I accept that you would not have had a full appreciation of the general scale of the likely damage you would cause when you set fire to the machine. 

38I consider that the destruction of the machine was an act of pure and senseless vandalism. 

39I accept that you have shown some remorse for your offending behaviour, in that you pleaded guilty at an early time. 

40In addition, your plea has utilitarian value, in that witnesses will not be required to attend court to give evidence at trial and court resources will not be unnecessarily wasted. 

41Further, I accept that you are a young person who suffers from attention deficit hyperactivity disorder, depression and anxiety.  You have a relatively low IQ of 76.  You have poor verbal communication and poor perceptual reasoning. 

42I accept that any term of imprisonment is likely to be more onerous on you than on an average person without those problems. 

43You are currently the subject of an existing Community Correction Order relating to offending which occurred in August 2018, some five months after the offending for which you are currently before this court and whilst you were on bail. 

44The offending in August 2018 consisted of causing criminal damage to your former partner's car, assault, and committing an indictable offence whilst on bail.  A condition was attached to that order that you perform 80 hours of unpaid community work, of which you have currently performed 43 at the date of your plea hearing. 

45I was informed by your counsel that you have moved away from your
co-offenders and it was submitted that you have fair prospects of rehabilitation.  I was informed that you are doing well under your current Community Correction Order. 

46It was submitted that incarceration might well impair your rehabilitation prospects, rather than advance them and I accept that that is indeed possible.  In gaol you are likely to be exposed to other criminals, some of whom might lead you further astray. 

47I was informed by your counsel that you had been prepared to give evidence against your associate who actually lit the fire.  This turned out not to be necessary, as he pleaded guilty to offences in the Children's Court. 

48I am in possession of a report from Corrections Victoria, dated 24 April 2019, indicating that you have been assessed as being suitable for a further Community Correction Order. 

49The author of that report noted your criminal record and opined that:

·    You had a history of drug and alcohol misuse;

·    You seemed unmotivated to find employment;

·    You have had a history of learning, social, emotional and behavioural problems;

·     You had been assessed as being a high risk offender. 

50Nevertheless, he considered that you were suitable for a further community corrections order with conditions attached. 

51I consider that you have fair prospects for rehabilitation. 

52Taking all of the circumstances into account, but in particular your young age and your plea of guilty, I consider that the purposes for which I am to sentence you can be achieved without your incarceration.  It is my intention to sentence you to a two year Community Correction Order with mandatory and other conditions attached. 

53The Sentencing Act only permits me to make such a Community Correction Order, if you consent to it. 

54Before asking you whether you do consent, in fairness to you, I should tell you what the conditions of the order will be. 

55Firstly, I have already said that it will be for a two year period. 

56Section 45 of the Sentencing Act provides a number of mandatory orders which are applicable to every community corrections order that is made. 

·Firstly, you must not commit, whether in or outside Victoria during the period, the two year period of the order, any offence punishable by imprisonment. 

·Secondly, you must comply with any obligation or requirement provided, or prescribed by regulations.

·Thirdly, you must report to and receive visits from the Secretary, or even for that, Corrections Victoria officers during the period of the order.

·You must report to the Community Corrections Centre specified in the order, which will be 9 Watson Street, Wodonga within two clear working day after this order comes into force.  It will come into force today.  You must report to that office by 4 pm on Tuesday of next week.

·You must notify Corrections Victoria of any change in address or employment, within two clear working days after such change, whatever the reason may be for such change.  You get a job, you leave a job, you get sacked from the job, you get another job.  You must advise Corrections Victoria within two clear working days.  You change address for any reason, you must notify them. 

·Importantly, you must not leave Victoria, except with the permission either generally or in relation to a particular case of Corrections Victoria.  If you cross from Wodonga to Albury, you have left Victoria.  I am sure you understand that.  You are not permitted to do so.  In the event that there is a particular function or event you want to or need to attend in New South Wales or any other State or Territory, you must seek permission of Corrections Victoria in order to do so.

·You must comply with any direction given by Corrections Victoria that is necessary to ensure that you would comply with this order.

57In addition to those mandatory conditions, I will impose the following additional conditions: 

·Firstly, that you perform 200 hours of unpaid community work.  Now that will be in addition to whatever is left on the previous community corrections order to which you were sentenced last year.  And my advice to you there is, the sooner you do it, the sooner it is over. 

·Further, it will be a condition of your order that you submit to assessment and treatment, including testing, with regard to alcohol abuse, pursuant to s.48D(3)(b) of the Act.

·That you submit to medical assessment and treatment, pursuant to s.48D(3)(d) of the Act.

·That you receive treatment and rehabilitation, including mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, pursuant to s.48D(3)(e).

·Finally, that you be subject to supervision and monitoring by Corrections Victoria during the course of the order, pursuant to s.48E of the Act. 

58I need to know whether you consent to such a Community Correction Order.  You may wish to have a brief word with your counsel, if you wish. 

59MR KOZLOWSKI:  May I just approach him, Your Honour?

60HIS HONOUR:  Thank you, Mr Kozlowski. 

61MR KOZLOWSKI:  He consents, Your Honour. 

62HIS HONOUR:  Thank you.  I note that consent.  I shall make the orders in those terms and the draft order we made referred to Correctional Services being at 5 Elgin Boulevard, Wodonga.  And for reasons that elude me, we cannot change that on the machine, so I will change it manually to 9 Watson Street, Wodonga, and initial it. 

63You will have to, in a moment, sign that document, acknowledging the terms and conditions of the order. 

64My understanding is that you have already served four days by way of
pre-sentence detention, however, in view of my sentence being non-custodial, that time is of no relevance at the present. 

65Pursuant to s.6AAA of the Sentencing Act of 1991, I declare that had you not pleaded guilty to the offences of intentionally damaging property and arson and had subsequently been convicted of those offences, I would have sentenced you to a term of imprisonment of 12 months, with a non-parole period of nine months. 

66I should just add that that sentence is an aggregate sentence in relation to both offences. 

67Now, ancillary orders, Mr Triandos?

68MR TRIANDOS:  Yes, there was an application for a forensic sample order made. 

69HIS HONOUR:  Was there?  Just bear with me then.  I do not suppose you have got a spare copy of it there? 

70MR TRIANDOS:  No, sorry, Your Honour, I don't, but it was all ‑ ‑ ‑

71HIS HONOUR:  Well, I have probably still got it here then.  Just a minute.  No, it has gone astray.  We might be able to print another on off.  Is that the case, Mr Stewart? 

72TIPSTAFF:  Yes. 

73HIS HONOUR:  Good, thank you.  Do you have instructions as to whether

Mr Dale-Williams consents to an order?

74MR KOZLOWSKI:  Yes, Your Honour, he consents. 

75HIS HONOUR:  Thank you.  Just bear with me if you would. 

76Mr Dale-Williams, I will make an order pursuant to s.464ZF(2) of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from your mouth, or a blood sample, in accordance with sub-s.30A of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.  That sample which is, as I understand it, is a smear from the inside of your cheek, to enable a DNA record to be placed on the database here in Victoria. 
I make such order because of the seriousness of the circumstances of your offending I consider warrant the order and also noting that the order is by consent.  In saying so, I should tell you, that if at some later stage, you change your mind and do not consent to the taking of the sample, then police may use reasonable force to enable a blood sample to be taken.  Do you understand that?

77Yes.  Thank you. 

78COUNSEL:  As Your Honour pleases.

79HIS HONOUR:  I will provide that order to your counsel and also as I mentioned earlier, you are required to sign a document relating to the community corrections order, indicating that you understand the terms and conditions of it.  I will hand that to your counsel too.  Anything else that counsel are concerned with?

80COUNSEL:  No, Your Honour.

81HIS HONOUR:  Thank you. 

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