Director of Public Prosecutions v Denyer
[2025] VCC 52
•31 January 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR 24-00036
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSICA KATE DENYER |
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JUDGE: | HER HONOUR JUDGE HARPER |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2025 |
DATE OF SENTENCE: | 31 January 2025 |
CASE MAY BE CITED AS: | DPP v Denyer |
MEDIUM NEUTRAL CITATION: | [2025] VCC 52 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Criminal damage by fire - arson
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Akoka v The Queen [2017] VSCA 214, Bugmy v The Queen [2013] 249 CLR 571
Sentence: TES 18 months imprisonment, NPP 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Goetz | Ms A. Hogan, Solicitor for Public Prosecutions |
For the Accused | Ms S. Gillahan | Emma King Criminal Law |
HER HONOUR:
1Jessica Denyer, you have pleaded guilty before me to a single charge of criminal damage by fire (arson), the maximum penalty for which is 15 years imprisonment.
Circumstances of offending
2The circumstances of your offending were outlined in the Summary of Prosecution Opening at Plea hearing dated 27 March 2024. I will outline those circumstances here.
3On 23 November 2022, you were one of a group of people formally evicted from a property at 13 Morrish Court, Seymour, owned by the Department of Families, Fairness and Housing (DFFH). The locks were changed and the group was advised that any personal items could be retrieved through DFFH.
4On 27 November 2022, police were notified that the property was still occupied. Police members attended and observed the property to be unlocked and unoccupied with damage to the front security door, the main wooden door and the plasterboard walls of the kitchen.
5At 2.14am on 30 November 2022, emergency services received reports of a fire at the Morrish Court property. A Country Fire Authority tanker attended and officers observed that the house was engulfed in flames. The fire was extinguished and the property handed over to Victoria Police at about 5am.
6CCTV from nearby properties showed that:
· at 1.40am a male and female attended at the property before examining the contents of the letter box using a torch light and then entered the dwelling;
· at 2.01am the male and female exit the property carrying various items and then walk towards Kitchener Crescent, Seymour;
· at 2.03am the female returned by running to the address approximately 15 seconds before the male. The female entered the dwelling whilst the male remained outside;
· at 2.04am the female ran out of the dwelling carrying what appeared to be a large picture frame. The male then followed the female and they run off towards Kitchener Crescent, Seymour;
· at 2.06am a light can be seen to emanate from inside the dwelling before increasing in its intensity; and
· at 2.27am the CFA arrive at the property.
7On 30 November 2022, forensic officers attended the property and later determined that 'the cause of the fire was the ignition of combustible materials in the lounge room, such as the couch and surrounding furnishings.” … “direct ignition, by means such as a match or a cigarette lighter was the likely source of ignition'.
8Police identified you and Blake Xuereb as the male and female in the CCTV.
9On 2 December 2022, you were arrested and made a sworn statement denying any involvement in setting fire to the house.
10On 8 December 2023, Mr Xuereb pleaded guilty to trespass and other offences and gave an undertaking to give evidence in accord with his statement of
2 December 2022 implicating you as the person who set fire to the house.
Objective gravity of offending
11Ms Denyer this is serious offending. Your actions caused somewhere between $180,000 and $214,000 worth of damage to the property. While the house was unoccupied at the time, it was a residential street and there were other houses in relatively close proximity.
12You can provide no reason for your offending other than it was spontaneous and impulsive. I accept there was no planning and no evidence of the use of an accelerant.
Plea of guilty
13Although your plea is not an early one, it still has significant utilitarian value. You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence.
14In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
15By your plea you have also demonstrated an acceptance of responsibility for your actions but on the other hand you nominated Mr Xuereb as the offender. There is no evidence of remorse.
Personal circumstances
16I turn now to your personal circumstances.
17You are 28 years of age, having been born in Katherine in the Northern Territory in January 1997.
18Your father was in the army and your family moved according to his postings to Puckapunyal, Queensland and Darwin before again moving to Melbourne and settling in Ferntree Gully when you were aged about 10 years old.
19Your mother worked as a cleaner at times and otherwise fulfilled the role of stay-at-home mother to you and your twin brother. Your family was financially stable.
20Your father was reportedly a heavy drinker and on occasion would subject your mother to domestic violence. Their relationship ultimately broke down and they separated in 2016.
21You attended four primary schools before attending Seymour Technical School. You repeated Year 8 and were expelled before attempting Year 9.
22After leaving school you worked in the kitchens at the Puckapunyal Army Base for two years and then at a local restaurant for two to three months. You have not worked since.
23You began using cannabis at the age of about 14, progressing to methamphetamines at the age of 16 and GHB at the age of 18. You were an intravenous drug user until you became pregnant with your first child.
24You report having been kidnapped by a drug dealer for a period of years and remained in a relationship with him because of threats made against you and your family. The relationship resulted in the birth of your second child.
25You have three young children aged 7, 5 and 7 months, but do not have contact with any of them. There is a permanent care order in place in relation to the two older children and a reunification order in relation to the youngest. You hope to reestablish contact with your children when your personal situation improves.
26Your intellectual ability is in the normal range.
27I received a somewhat dated report from psychologist Warren Simmons dated 26 April 2021. He reported that your “substance abuse appears to have escalated at the time you lost custody of your second child and subsequently became homeless in late 2019.”
28Between 20 March 2023 and 20 August 2023, you completed 21 weeks of residential rehabilitation at the Salvation Army Bridge Program at the Basin. This involved an intensive 16 week residential program including counselling and education. You also participated in the 7 week transition program but did not return from weekend leave after falling pregnant with your last child to another program participant.
29You maintained abstinence from substance abuse for some 12 months, before relapsing into GHB and cannabis use. You have several matters pending in the Magistrates' Court jurisdiction including drug possession and shop theft.
30Your mental health, homelessness and drug use are such that you are now realistic about your inability to engage with a Community Corrections Order and you would rather serve a term of imprisonment.
Sentencing principles and considerations
31Ms Denyer, your abuse of illicit substances has brought you before this court for serious offending, offending which fortunately did not place anyone else at risk but may well have done so given the proximity of houses nearby. There is no Victim Impact Statement but the quantum of the damage is significant.
32You have a number of low-level prior convictions associated with drug use but have also breached a Community Corrections Order in the past which causes me concern. As I have stated, your relapse into drug use has brought with it the outstanding court matters.
33Offending such as this calls for general deterrence. Members of the public must know that crimes of arson will result in gaol sentences and be deterred from acting in the manner you have done.
34I also consider specific deterrence to be a relevant sentencing consideration. Your criminal offending has escalated and this matter represents your first time in custody. You spent 108 days on remand between December 2022 and March 2023 and have now spent a further 2 weeks in custody. You must appreciate that you cannot act in this way and there are consequences to your actions.
35Your offending also calls for consideration of community protection given the house fire was lit in a residential street setting. I also take just punishment and denunciation into account.
36You were released to a residential rehabilitation from custody and as I have stated, you successfully completed the Bridge Program. You were required to remain on premises and engage in daily prescribed activities as a condition of the program. I take the 16-week period you spent there into account in accordance with the principles in Akoka v The Queen [2017] VSCA 214.
37Your completion of the Bridge Program shows you have the ability to remain sober and offence free. You again need to address your addiction and your mental health and if you are able to do so, your prospects of rehabilitation are reasonable.
38You have been assessed as a high risk of reoffending and report that you use drugs as a 'blanket' for your poor mental health. As for breaching a past CCO, you said you reconnected with drug associates because you had a reputation to maintain as a supplier.
39Ms Gillahan submitted that the principles in Bugmy v The Queen [2013] 249 CLR 571 are applicable in a general sense in this case. Given your exposure to family violence, alcoholism and drug use during your childhood, I find that your moral culpability is somewhat less than that of an offender whose formative years have not been so marred.
40I note you are serving your remand and will continue to serve your sentence in protection. You do not consent to a Community Corrections Order and so it falls to me to impose a period of immediate imprisonment upon you. I am of the view that a period of supervised release is appropriate.
Disposition
41On Charge 1, criminal damage by fire (arson), you are sentenced to a term of 18 months imprisonment.
42I direct that you serve a minimum non-parole period of 12 months imprisonment before being eligible for release on parole.
43I declare that pursuant to s 18 of the Sentencing Act1991, you have served
121 days by way of pre-sentence detention, excluding today.44Pursuant to s 6AAA of the Sentencing Act1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been 2 years 6 months imprisonment with a non-parole period of 22 months.
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