Director of Public Prosecutions v Denholm, Malcolm
[2012] VCC 1597
•12 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00114
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALCOLM DENHOLM |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2012 | |
DATE OF SENTENCE: | 12 October 2012 | |
CASE MAY BE CITED AS: | DPP v Denholm, Malcolm | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1597 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | Office of Public Prosecutions |
| Mr James | ||
| For the Accused | Ms L. Mendicino |
HIS HONOUR:
1 Malcolm Denham, you pleaded guilty to an indictment charging you with an offence of arson on 3 April of this year, and you have admitted a number of prior court appearances the most recent of which was 1 March of this year when you were before the Melbourne Magistrates' Court for intentionally destroying property, which I understand was a window at the brothel where you committed the offence of arson.
2 The maximum term of imprisonment for arson is 15 years imprisonment. The prosecution has tendered a summary of prosecution opening, which has become Exhibit A on the plea and I incorporate that document in its entirety into these reasons for sentence. The summary reveals that on 3 April of this year, at about 5 PM, you attended the Tender Touch brothel and spoke to the manager indicating that you were very angry with the business, that you would set fire to the brothel and that you wanted to make it burn up. The manager told you that there were a lot of people inside and they would burn alive. You said you did not care and you wanted to put the brothel out of business.
3 You walked away apparently and then ten minutes later, the manager heard a noise on the roof and when she went outside to investigate, saw you on the roof with a spanner and a brick in each hand. You were seen to start hitting the roof with one of those objects. The manager contacted the police and you left. You returned at about 8 pm, or shortly afterwards, and at about five past eight pm on that same day the receptionist heard a noise on the roof, something banging. The receptionist called the police. You were apparently on the roof with a jerry can of petrol . You smashed a large hole in the roof with the jerry can, poured petrol from the jerry can through the hole into a room which it seems was unoccupied and you lit a match which ignited the petrol. That set fire to the building. The building was occupied by a customer and the receptionist and six other employees who were fortunately able to leave the building without being injured.
4 The fire brigade attended and it was clear that the fire had been started in the way that I have just indicated. The insurance company assessed the damage to the property to be a total of $240,000. The loss of income to the brothel amounted to $295,000 or thereabouts.
5 You left the scene almost immediately after setting fire to the premises and it is to your credit that you called Triple 0 very soon afterwards, at 8.15 pm, and informed the authorities about the fire. You were seen at 12.52 am by police walking on Buckley Street in Footscray. When police stopped and spoke to you, you told them that you had done something big but refused to indicate what that was. At 1.20 am, you entered the Footscray Police Station, that is on 4 April this year, and provided details. After you had been arrested, you told the police essentially what you had done and you asked them if anyone was hurt, indicating that you could not live with yourself if anyone was hurt.
6 You showed police where you had thrown your mobile phone that you had used to make the Triple 0 call and your bicycle into the river. You told the police on the way to the Melton West Police Station that you had smashed a hole in the roof with a can, you could see inside, there wasn't anyone in the room, you poured petrol in and then lit it with a match. The flash knocked you back and you went on to say "I got real scared but I kept yelling at them to get out". You told police that you needed to be a man and 'fess up. You said "My brain, I need to get the cancer out of there. You don't understand what it's doing to me. I don't want bail, I need to be locked up, I don't feel safe at home."
7 You showed police where you had bought the petrol that you had used to start the fire. When asked if you had gone to the brothel and got on the roof, you said "I told them I was going to burn it down. I had to burn it down, I hadn't been able to do anything for four months. I can't get it out of my head." As I indicated, you showed police where you had thrown your bike and mobile phone into the Merri Creek.
8 This was, very clearly a serious offence of its kind. Arson is generally a serious offence. It is particularly serious where substantial damage is caused and where there is a degree of premeditation and an appreciation at least of the risk that there may be persons in the building when the fire was set. It seems to me that you must have appreciated that because that is the only inference that can reasonably be drawn from what you said to the police later, namely, that you kept yelling at them to get out. It is consistent also with what you had been told by the manager of the brothel earlier that there would be a lot of people inside who would be in danger if you were to attempt to burn the brothel as you had threatened earlier that day.
9 It seems to me that there must, at least have been an appreciation on your part and therefore a degree of recklessness about your conduct as to the risks of causing very serious harm, if not death to the persons inside the brothel. It is to your credit that you expressed concern that your actions may have cause harm and you indicated soon afterwards to police that you were remorseful for what you had done.
10 I am satisfied beyond reasonable doubt that you were at least reckless as to whether there were persons in that building at the time you set that fire and that you had some appreciation of the risks to them although that has to be considered against the background of your mental impairments. You had an appreciation that there was a risk of serious harm to those persons inside the building.
11 That all makes, as I say, for a very serious offence of its kind and I now turn to matters personal to you. You are 48 years of age and you do have a number of prior convictions, some for quite serious offences including rape, for which you were sentenced to and served a term of imprisonment. On your behalf, I was supplied with a number of documents, the first group of documents in Exhibit 1 was made up on an Outline Of Plea submissions, which was very comprehensive and helpful, a declaration of eligibility for client services under the Intellectually Disabled Persons' Services Act 1986 dated 5 March 2003, a neuro-psychological report dated 27 July of this year, a report from a forensic psychiatrist, Dr Ong, dated 3 October 2012 and a report from a psychiatric nurse employed by the Court Liaison Service at the Melbourne Magistrates' Court, a Ms Cheslyn, dated 4 April of this year.
12 I was also supplied with documents that formed Exhibit 2 which were certificates showing that during your time in custody you have taken the opportunity of engaging in courses that have been provided for you and it is to your credit that you have made good use of your time in that regard and that bodes well for your prospects of rehabilitation.
13 The neuro-psychological report and the psychiatric report to which I have referred set out a deal about your background which clearly has been a deprived one. They also give clear evidence in support of a proposition that you do suffer from intellectual disability and other mental impairments of a kind which were likely to have contributed to your offending conduct. I am satisfied that the evidence supplied by those reports supports the conclusion that the principles referred to in the well known case of Verdins do apply, all of them, and, indeed, that position is accepted by the prosecution.
14 Those principles operate so as to enable the court to treat your culpability for your offending as reduced and to regard principles of denunciation, punishment, retribution and general deterrence in particular as being significantly reduced. I think also that these impairments are such that it will make serving your time in prison more difficult than if you did not have them and I think a long sentence also is likely to make your conditions worse.
15 The reports also indicate that you have a reduced insight into the impact of your offending and a reduced appreciation of the seriousness of your conduct. I have had the opportunity of observing you during this plea and it seems to me that your conduct has been consistent with remorse and, as is indicated by your counsel, I should treat your plea of guilty, your co-operation with police, the early stage at which you co-operated and called the fire brigade and the early stage at which you offered your plea of guilty has indications of remorse as well as a basis upon which the sentence should be reduced by reason of your willingness to facilitate the course of justice and I do take all of those matters into account.
16 The reports indicate that you will need a good deal of assistance in the future to help you stay out of trouble. I would regard your prospects of rehabilitation as guarded. Without considerable help and support, I would see a real risk of you re-offending. The commission of this offence following so quickly upon your court appearance for damaging a window at the same brothel would suggest that that court appearance for which you were treated leniently did not have a great deal of impact upon you. You have, of course, been in custody since your arrest for this offence and I think that the pre-sentence detention up to today has been 191 days, is that correct? Does that include today? It does not include today. So 191 days have to be taken into account.
17 I canvassed with your counsel whether, in presenting her submissions to me, she had considered whether a sentence other than a term of immediate imprisonment was within the range and as to whether a Community Corrections Order with a condition that, subject to assessment, you be the subject of Justice Plan might be an appropriate way of dealing with you. She indicated that she had considered that and had formed the view that it was not within the range of sentences that were available to me. I am bound to agree with her and I think that the way in which she presented her plea, both in writing and orally, reflected a balanced view of the sentencing process that we are now engaged in and the sentencing task that I have to discharge.
18 I think it is appropriate to say that offences of this kind do require a court to consider the necessity for public protection. I am conscious of what the High Court said in Muldrock v. R, the report which I have is [2011] HCA 39, where, at Paragraph 60, the court said:
"A fundamental precept of the criminal law is that a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community. The distinction between extending a sentence to protect society and taking into account society's protection in determining the appropriate sentence may not always be easy to draw."
19 I am conscious of the need not to extend your sentence beyond that which is proportionate to the crime and taking into account other considerations such as your plea of guilty, your remorse and the Verdins principles. However, it seems to me that protection of the community must play a part in determining what an appropriate sentence is, taking into account all of the sentencing considerations as part of the instinctive synthesis with which I am required to engage.
20 The prosecution submitted that notwithstanding the application of the Verdins principles, notwithstanding the evidence of your mental impairments and notwithstanding your plea of guilty at the earliest opportunity and notwithstanding your co-operation with the police, that the appropriate sentencing range was a total effective sentence of between five years and six years with a non-parole period of between three years and four years. I raised question with Ms Hogan, counsel for the prosecution, as to whether proper consideration had been given to all of those factors in reaching the figure put forward as being the range of appropriate sentences, and was assured that that had been considered.
21 I am bound to say, having considered the cases that have been referred to specifically by Ms Mendicino in her written and oral submissions, and having looked at a number of other cases involving arson which have come before the Court of Appeal, in the last decade or so, that it seems to me that range, having regard to the various mitigating factors that I have outlined, is too high. Absent the mental impairments, I would have regarded a sentence of that range or perhaps higher, maybe up to seven years or so as being appropriate for an offence as grave as this with the risks that it carried and the degree of appreciation which I think you have had of those risks.
22 However, it seems to me that the proper application of the Verdins principles requires me to moderate that sentence significantly and I propose to do that notwithstanding what I've said about the need to include within the sentencing consideration with regard to the need for the protection of the community.
23 Your counsel also urged me to impose a sentence which permitted a significant portion of the overall sentence to be served whilst you were eligible for parole. I think that that submission, in all the circumstances, is soundly based. I think that a proper opportunity for the Parole Board to offer you its services for an extended period whilst you get back into the community will be in the overall interests of the community and the best way to promote your rehabilitation which has to be balanced against the other sentencing considerations.
24 For the offence of arson to which you pleaded guilty I convict you and I sentence you to a term of imprisonment of four years. I order that you serve a period of two years and six months before you become eligible for parole.
25 But for your plea of guilty, I would have sentenced you to a term of imprisonment of five years and six months with a non-parole period of three years and six months.
26 I make the disposal order in respect of the items of property that are set out in the Schedule and I have signed that order.
27 Are there any other orders that I need to make?
28 MR JAMES: No, Your Honour.
29 HIS HONOUR: Very well. You may take him down, thank you.
30 Ms Mendicino, I think I probably should return to you the certificates.
31 MS MENDICINO: Thank you, Your Honour.
32 HIS HONOUR: The other exhibits I think we will keep on the file, if that is all right.
33 MS MENDICINO: Yes, thank you.
34 HIS HONOUR: Thank you both for your help.
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