Director of Public Prosecutions v Dart

[2018] VCC 1267

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01220

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN DART

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2018
DATE OF SENTENCE:	13 August 2018
CASE MAY BE CITED AS:	DPP v Dart
MEDIUM NEUTRAL CITATION:	[2018] VCC 1267

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Fitzgerald (Plea) Ms Gurry
For the Accused	Ms L. Torres

HIS HONOUR:

1John Dart you have pleaded guilty to an indictment containing seven charges.  Charge 1, 4 and 6 allege separate offences of burglary and carry a maximum penalty of ten years' imprisonment.  Charge 2, alleges an offence of theft and carries a maximum penalty of ten years' imprisonment.  Charge 3, 5 and 7 allege separate offences of arson and carry a maximum penalty of 15 years' imprisonment.  At the time of the offending you were 31 years old.  You are now aged 32.

2Two of the victims in this matter, Nigel Paul Robinson and Roy Pierce are the owners of a company called Luxfield Pty Ltd whom you briefly worked for prior to the offending.  The company which traded as Right Engineering manufactured sheet metal and operates out of factory in South Kingsville.  This factory was situated across the road from the unit where you lived.  The third victim in this matter, Lee Robinson, is the son of Nigel Robinson and he also worked for the company.

3The circumstances in which you came to commit the offences to which you have pleaded guilty are set out in a long and detailed prosecution opening, dated 25 July 2018, a copy of which was tendered on the plea and retained on the court file as Exhibit A.  I have had regard to the prosecution opening when determining the appropriate sentence in this case but will not recite the full circumstances of your offending.  It is sufficient for present purposes to provide the following outline.

4Around the beginning of April 2017, you approached Nigel Robinson seeking work.  Robinson hired you on the spot and you commenced employment at Right Engineering the following day.  As a result of your employment you became acquainted with Lee Robinson who, as stated, also worked at the company.  Later Lee moved into and rented a spare room at your flat.  Not long after your employment commenced, you became ill and were unable to continue working.  Then, in around May or June 2017, you were told there was no more work available for you at the company.  Despite this you left the business on apparently good terms.

5Lee Robinson continued to live at your flat until approximately November 2017 when a verbal disagreement between the two of you resulted in his departure.  Later on at some point you contacted him claiming that he owed you an outstanding sum of money and you sent him a number of threatening text messages.  He eventually paid you $100, however, you did not believe that this satisfied the debt.

6Sometime between 4.30 pm on 6 December 2017, and 6.30 am on 7 December 2017, you broke into the business premises of Ride Engineering.  You used a pair of pliers to cut a hole in the wire fence before scaling up a drain pipe on the side of the factory building and entered through a broken window.  That constitutes  Charge 1 of burglary.  Once inside, you stole a number of items including a drill, a digital caliper and other tools.  That constitutes Charge 2 of theft.

7You then left the premises in the same manner you entered.  At the time this incident went unreported to the police.  Two weeks later on 28 December, you returned to the business premises of Ride Engineering after dark, climbing through the fence to gain access to the outdoor parking area.  There you used an accelerant and a cigarette lighter to set ablaze a rubbish bin.  That is Charge 3, arson.  You then left and returned home across the street where you timed how long it took for the fire brigade to attend to the fire.  The MFB eventually arrived and extinguished the fire.  The value of the damage caused was only $100.  Like the first incident this was not reported to the police at the time.

8On 2 January 2018, you again broke into Ride Engineering, again accessing the factory by scaling the pipe and through the broken window.  That is Charge 4, burglary.  Once inside, you located a number of items belonging to Lee Robinson which he was storing at the factory and set them alight using methylated spirits and a flame source.  The fire eventually spread and caused extensive structural damage to one end of the building.  The damage extended to the mezzanine level, its surrounding walls and the roof.  That is Charge 5 of arson.

9While the fire spread, you left the premises the same way you had entered.  The MFB eventually arrived and extinguished the blaze and subsequent forensic examination was unable to determine a cause.  The value of the damage was over $290,000.  Subsequent to these incidents, CCTV cameras were installed inside the building premises.  Some three months or so later on 8 March 2018, at 10:00 pm, you broke into the business premises of Ride Engineering for a fourth time.  Once again gaining access through the pipe and broken window.  That is Charge 6, burglary.

10Once inside, you entered the office are of the building and set it ablaze using methylated spirits you brought with you and other accelerant you located inside the building.  Charge 7 of arson.  Once the fire ignited you exited the building. The damage caused by this fire was $340,000.  On this occasion your actions were captured on CCTV cameras, however, your face was obscured.  Both Nigel Robinson and Lee Robinson had suspected your involvement in the offences.  They both they later viewed the CCTV footage for 8 March and identified you.

11On 12 March police attended your home.  You denied any involvement in the recent fire.  On 15 March police executed a search warrant of your flat and located a number of items stolen as well as the clothing you wore on the 8 March break in, identified via the CCTV footage.  Further police forensics matched a boot print taken from the drain pipe to a pair of boots seized during the search.  You were arrested on the spot and taken to Altona North police station where you participated in a formal record of interview.

12During this interview you ultimately made admissions to the offences and stated, amongst other things, that you had briefly worked at Right Engineering, you had lived with Lee Robinson for a short period but the relationship had broken down for various reasons and you had grown to hate him.  You did not have a problem with anybody else at the company.  You had committed the crimes out of hate and spite towards Robinson.  The items you had stolen were to compensate for what he owed you.  You "didn't know what you would do" if you had known where Robinson lived now.

13The arson were all committed whilst you were heavily intoxicated and that you had felt some remorse for the second and third fires.  You really wanted to hurt Robinson.  As to the December burglary you knew what you were doing because you had bolt cutters and faced up and knew exactly what you were about to embark upon.  You lit the office fire because you wanted to keep going and wanted to keep disrupting the whole company and its business.  You had initially denied knowing anything about the fires but when told of the footage, you admitted lighting all three of them.

14Victim impact statements were received by the court.  The first was from one of the owners of the company, Nigel Robinson, the second from Lee Robinson his son.  Nigel Robinson recalls being contacted by police and being told of the fire in early January.  This fire was disruptive and caused inconvenience and hard work to minimise damage and ensure continuity in the business.  However, the March fire was much more serious, which much damage.  The employment of ten people was affected and the business was disrupted significantly. 

15The fires, he estimates, cost over a million dollars in damages.  Moreover, the anxiety and distress they caused were so traumatic that the business was put up for sale as a result.  This has impacted not just on the owners but employees.  Lee Robinson writes of being personally targeted, had an emotional and traumatic impact.  He suffers from severe depression and anxiety as a result.  He has been psychologically and physically affected, compounding the financial losses.  I take these statements into account.

16Burglary is a serious offence.  Even in a commercial context, it is nevertheless fundamentally breaching the rights of a property owner to secure and safe enjoyment of his premises, free from interference and disruption.  When accompanied by intended thefts, the burglary is even more serious.  However, burglary is even more serious when it accompanies an intent to damage by fire.  Arson is a very serious criminal offence.  It is inherently dangerous and not only in real terms by the damage caused to buildings and other property but also by the potential harm to persons and property as well as first responders.

17I accept that your burning of the bins was just to evaluate how long fire fighters would take to reach and put out the fire.  I am prepared to take that view to your benefit, though other reasons could be argued to have motivated such a test.  However, the two subsequent fires, irrespective of what you thought the damage would be, are very serious offending.  The starting point I take into account is the maximum penalties for each of these offences as I have outlined them.

18The penalties set by Parliament demonstrate the seriousness of the offending.  By its very nature fire is often uncontrollable.  You would have known the damage the second fire caused more generally at the factor even though you had only specifically targeted Lee Robinson's property.  You lived across the street and would have seen the fire spread and caused extensive damage to the building.  The third time you were motivated to damage the business and you lit a fire into the office area in order to disrupt it and cause significant damage.

19This conduct was all motivated by revenge and hateful feelings and by extension, the business which had employed you only six months before this conduct.  I consider that the objective gravity of the arson offences, particularly the second and the third, is very high.  That your overall moral culpability is also of a high order.  In these circumstances general deterrence and specific deterrence must be primary considerations in the sentence.

20The court must denounce such destructive and dangerous offending in clear terms to deter likeminded people who may seek to take the law into their own hands over real or perceived wrongs done to them motivated by vengefulness and contumacious in their intent to continue to engage in such behaviour despite clearly knowing the consequences of their actions.  Community protection give the inherent danger of arson must also be placed at the forefront of this sentence.  It was noted that you have a long history of substance abuse but this was not relied and indeed could not diminish your culpability.

21You asserted candidly to police in your record of interview that you knew what you were doing because your premeditation and implementation of that thought was detailed and planned.  You took with you the tools needed to enter the premises.  You were wearing dark clothes and had endeavoured to cover your face and identity.  You had accelerant with which you used in specific targeting.  Though I accept that ultimately your plea was made and accompanied by remorse, this is an emotion which attached itself to your endeavour only after some time and reflection.

22The vehement level of resentment was evident by your answers in the record of interview.  Your culpability is enhanced by the fact that your target ultimately went beyond the Robinsons to the business itself, a company which had happily employed you.  I take your plea into account and accept it was made with remorse.  The clarity of mind that may have accompanied recent reclusion and abstinence from drugs and the realisation not only of your likely punishment but of the damage you wrought has made you remorseful.

23Your plea also has a utilitarian benefit of having avoided a trial.  The plea will a discount upon you sentence by operation of law.  I take your personal circumstances into account.  You are 32 years old, you have a prior criminal history which I take into account.  Though it is limited, your latest prior of 2015 pertains to a burglary and theft, a relevant matter to your prospects of rehabilitation which are to be assessed and to specific deterrence.

24You grew up in Queensland and New South Wales before moving to Victoria aged eight years.  You grew up with your mother and older sister.  You also have another older sister.  You never met your father.  Your mother was punitive, erratic and alcoholic.  You childhood was chaotic and abusive.  By age 20, your mother had allegedly tried to kill you with a knife, at which time you left and severed ties with her.  You moved into a transient phase of life which socially, vocationally and academically meant you had no stability.  Though contact and relationship with your sisters was a positive aspect, most other aspects of your life were problematic.

25You were bullied at secondary school and left after failing year 11.  After attempts at further education, you completed a motor mechanic apprenticeship and secured employment in the truck driving industry.  This is somewhat paradoxical in the face of what else was happening in your life.  You had begun using alcohol at 15.  By the age of 17 your drinking was substantial.  You have never fully abstained from cannabis since age 17.  You also used speed and methamphetamine and by your mid-20s you would use a gram a day, though you did not experience psychotic episodes.

26At age 21 you took heroin.  Its use was sporadic but escalated by the time you were 30.  You have a long history of abuse of prescription drugs also, some of which were prescribed after you sustained an injury.  The traumatic events in your childhood led to depression and anxiety and you began self-harming by mid-20s.  You were affected by the breakup of a relationship in your mid-20s and another during which you had a codeine and alcohol addiction.

27In 2016 a close friend died in a car accident which led to an escalation of drug use and in an apparent attempt to self-harm, you drove into a parked car whilst under the influence of alcohol and codeine.  This led to more injury and the breakup of a relationship.  In your late 20s you engaged in counselling with
Dr Squirrell which you found useful.  He wrote a report for the court dated July 2018.  Your consultations lasted some six years.  He diagnosed a borderline personality disorder of an enduring and pervasive nature.

28This disorder was not relied upon to enliven Verdins' principles in this case but was said to perhaps contribute to an understanding of your offending.  Given that such a disorder often is evidenced by instability in relationships, marked impulsivity, inappropriate anger, together with polysubstance dependence, and anxiety and depressive episodes which would have impacted your judgment and decision making.  I take this report into account.  Treatment did not contain or continue after March 2017.

29You were also referred to a psychiatrist by Dr Gamboni, who you have seen regularly since 2011 and who prescribed antidepressant medication and medication for anxiety.  But no psychiatric material was relied upon.  The medications were to deal with your generalised anxiety disorder and major depressive disorder but which, like in earlier occasions, when you abused diazepam and opiates, you became again dependent upon Valium and temazepam.

30Brendan Partridge, a clinical psychologist, provided the court with a comprehensive report dated July 2018.  He noted that since being incarcerated you had again engaged in drug and alcohol courses as well as stress management course and have attended some helpful mental health programs.  You remain medication compliant and motivated to engage in treatment to address substance-use issues as well as your disorders.  Mr Partridge confirms that you had ruminated obsessively over your sense of betrayal and sought vengeance upon your victim to preserve your fragile sense of self.

31You remain vulnerable to a chaotic lifestyle and neurotic tendencies, impulsive and antisocial behaviour.  You appear currently motivated to rebuild your life post imprisonment.  I take these reports and their opinions into account.  There is no doubt that you will need ongoing psychoeducational and trauma-focused counselling.  A positive aspect is the present and ongoing support of family members who have not only visited you and have come to court but will continue to support you in the future, including providing future accommodation.

32This protective factor, your employment history and other prospective abstinence may mean you have some prospects for reclamation and rehabilitation.  It was properly acknowledged that a term of imprisonment is the appropriate disposition.  Is there an agreed pre-sentence detention period?

33MS TORRES:  151 days.

34HIS HONOUR:  Yes, thank you.  You have served 151 days excluding today and I will have that noted for the records of the court and declared as days of pre-sentence detention which have been served.  Please stand.  On burglary, you are convicted and sentenced to two years' imprisonment.  On theft you are convicted and sentenced to one year imprisonment.  On arson you are convicted and sentenced to two years' imprisonment.  On burglary, Charge 4, you are convicted and sentenced to two years' imprisonment.  On arson, Charge 5, you are convicted and sentenced to three years' imprisonment.

35On burglary, Charge 6, you are convicted and sentenced to two years' imprisonment and on arson, Charge 7, you are convicted and sentenced to three and a half years' imprisonment, the base sentence. I order that three months on count 1, four months on count three, four months on count 4, eight months on count 5 and four months on count 6 be cumulative on count 7, making a total effective sentence of 65 months. That is five years and five months. I order a non-parole period of 42 months, three and a half years. I will order that you undergo a forensic sample pursuant to s.464ZF of the Crimes Act.  I will explain that to you in a moment.

36But for your plea, I would have sentenced you to six and a half years with a non-parole period of four years and three months.  I was recently informed that a compensation order will be made by consent in favour of the victims of your conduct by reference to a part of that damage and I take this further consequences into - consequence into account in that the sum involved may well impact on your future.

37A request will be made to you for a scraping from the mouth, which is not a painful procedure, in order to place your DNA on a DNA database.  When that request is made, if you do not consent, then the authorised officer is authorised to use reasonable force to obtain a blood sample from you.  Do you understand?  Yes.  Are there any other ancillary orders that are required?

38MS GURRY:  No, there's not, Your Honour.

39HIS HONOUR:  Yes, I see that Mr Dart has a family member in court.  I'll stay on the Bench so that she can speak to him.  Unfortunately, you're not allowed to have physical contact with him but I'll remain on the Bench for a moment to allow that to happen.  Yes.

40MS TORRES:  Thank you, Your Honour.  Thank you, Your Honour.

41HIS HONOUR:  Yes, thank you.  Yes, you can remove Mr Dart.  Sine die.

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