Director of Public Prosecutions v Duarte (a pseudonym)
[2025] VCC 1098
•1 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT DUARTE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2025 | |
DATE OF SENTENCE: | 1 August 2025 | |
CASE MAY BE CITED AS: | DPP v Duarte (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1098 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Arson, contravene FVIO, persistent contravention of FVIO
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 10, Bugmy v The Queen [2013] 249 CLR 571, Norman v The King [2023] VSCA 213
Sentence: TES: 5 years 1 month NPP: 3 years 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mx C. Rattray | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms L. Dubroja | SLKQ Lawyers |
HER HONOUR:
1.Scott Duarte, you have pleaded guilty before me to one charge of arson, one charge of contravention of a family violence intervention order intending to cause harm or fear for safety, three charges of persistent contravention of a family violence intervention order and one related summary offence of resist emergency worker on duty.
2.The maximum penalty for arson is 15 years' imprisonment. For contravention of a family violence intervention order intending to cause harm or fear for safety and for persistent contravention of a family violence intervention order, the maximum penalty is five years for each charge. The maximum penalty for the related summary offence of resist emergency worker on duty is six months' imprisonment.
Circumstances of offending
3.The circumstances of your offending were comprehensively outlined in the Summary of Prosecution Opening on Plea dated 8 July 2025. I shall summarise those facts here.
4.You were in a de facto relationship with the complainant, for approximately nine years. Your relationship ended in February 2024.
5.During your relationship with the complainant, you had five children together. All of those children are in the care of the Department of Families, Fairness and Housing ('DFFH').
6.On 22 October 2019, a full interim Family Violence Intervention Order was made by the Magistrates' Court of Queensland at Maroochydore naming you as the respondent, and the complainant as the Affected Family Member. On 8 August 2024 in the Magistrates' Court of Victoria at Melbourne, this interim order was extended and varied to include several of your children.
7.On 12 September 2024 the interim order was further extended and varied by the Magistrates' Court of Victoria at Melbourne. You were personally served with a copy of this order. A full and final Family Violence Intervention Order was made on 24 September 2024, expiring on 24 September 2026.
Charges 1 and 2 – Arson and Contravention of Family Violence Contravention Order Intending to Cause Harm or Fear for Safety
8.On 21 October 2024 you attended the complainant's address in Altona North and spoke to her in front of the property, which forms part of Charge 4. This conversation was witnessed by a friend who was living with the complainant at the address. You made an effort to reconcile your relationship with the complainant however, she informed you that she had commenced a new relationship, causing you to become angry.
9.At approximately 1:09 pm, on 22 October 2024 you attended the rear of the complainant's home. You were observed walking towards the rear of the property by a witness who was completing concreting work at the rear of a neighbouring house. You then jumped a fence and entered the backyard of a neighbouring address, observed by the occupant of that property.
10.Some five minutes later, the occupant of the neighbouring property noticed black smoke coming from the complainant's address and told her son to call Triple 0.
11.Emergency services attended the scene and the fire was extinguished. Fortunately, the complainant was not home at the time of the fire. She was notified and arrived soon after.
12.Investigators were able to identify you on CCTV footage from nearby properties walking to and from the home around the time of the offending. Investigators located a jerry can lid at the front of the property, brake cleaner fluid between neighbouring properties and a backpack in the lounge room of the residence containing various documents belonging to you.
13.The complainant had earlier contacted the informant via email indicating that she had located pieces of paper in her house which belonged to you. She stated that the paper included a note which she believed had been drawn by you, depicting her residence and how to burn it down and which I received as Exhibit B.
14.MX RATTRAY: Your Honour, sorry, I just wish to point out that it was in fact earlier in the morning of 22 October that the email was sent to the informant, not later.
15.HER HONOUR: 'The complainant had earlier contacted', I will change that.
16.MX RATTRAY: Thank you, Your Honour.
17.HER HONOUR: Forensic officers attended the scene. They opined that there were three, but possibly five or more, seeds of fire located in the residence. They identified fires having started in the lounge room, rear ground floor bedroom and in the backyard. The walls adjoining the neighbouring property were not damaged.
18.The damage was not indicative of flammable liquid. There were also no other obvious sources of accidental ignition in the vicinity of the fires. Forensic officers concluded that the cause of the fire in each case was the ignition of combustible material, such as clothing and bedding with a match or cigarette lighter.
19.The ground floor of the home was destroyed and the first floor was damaged by smoke and soot. The quote to repair the damage to the property was $182,812.30.
Charges 3 and 4 – Persistent Contravention of a Family Violence Intervention Order
20.Following the fire, the informant made inquiries as to your location. At that time, you were using a sim card with a number ending in '788'. On 26 October 2024, the informant spoke with the complainant who indicated that you had made contact with her on multiple occasions before the arson attack while in custody. Subsequently, the informant arranged for checks through Corrections Victoria which identified multiple phone calls from you to the complainant between 1 September 2024 and 11 October 2024.
21.Between 1 September 2024 and 29 September 2024, you made 19 calls to the complainant over nine separate days, constituting Charge 3, persistent contravention of a Family Violence Intervention Order.
22.Between 3 October 2024 and 31 October 2024 you made five calls to the complainant from the Metropolitan Remand Centre, attending at her home on one occasion, made 32 calls from the number ending '788' and sent 34 text messages to her, together constituting Charge 4, persistent contravention of a Family Violence Intervention Order.
23.On 28 October 2024 the complainant provided copies to the informant of audio recordings sent by you which were included in the 32 calls.
24.Your calls and messages variously abused your victim, denigrated her, tried to make arrangements to see her, professed your love for her and expressed concern that you were being set up.
Summary Charge 9 – Resist Emergency Worker on Duty
25.On 31 October 2024 at approximately 11:45 am you were located at Werribee train station and arrested. After your arrest you leant forward and began hitting your head on the ground. Police put you on a garden bed to stop you from further injuring yourself. You indicated an intention to self-harm and denied your involvement in the offending.
26.After some time, you calmed down and requested water from the officers. You took a sip of the water and then spat it at the police before you started kicking at them. This gives rise to summary Charge 9, resisting Emergency Worker on Duty. Multiple police officers were needed to restrain you, and officers had to deploy OC spray in order to control you.
27.You were deemed unfit for interview.
Charge 5 – Persistent Contravention of a Family Violence Intervention Order
28.After your remand, you sent a number of letters to the complainant via her grandparents' address, copies of which I received as Exhibit C. This gives rise to Charge 5, persistent contravention of a Family Violence Intervention Order.
29.These communications were not threatening per se but were sent following your burning down of the complainant's home. In them, you denied your involvement in the arson, enquired after the children, sent sexually explicit material and forwarded birthday and Valentine's Day greeting cards to the complainant.
Objective gravity
30.It goes without saying that these are most serious offences. You breached a Family Violence Intervention Order in place to protect your ex-partner on multiple occasions. In anger, you attended at her home and set fire to it before committing further breaches of the Intervention Order from custody.
31.Arson is an inherently serious offence, more so when it is committed in the context of prolonged family violence. The fire was lit in a built-up residential area where the home shared walls with neighbouring properties. While you were aware no one was in the home at the time you lit the fire, there were at least two people present in the unit next door. There were multiple points of ignition and there was evidence of some planning, being the diagram discovered in the property the night before the fire.
32.Your actions in lighting the fire were, as per Charge 2, intended to cause harm or fear for safety and you succeeded in doing so. The persistent breaches must also have been frightening for your victim, particularly those communications made after the fire.
33.You have several prior convictions which I will return to, but the relevance here is the ongoing nature of the fear you instilled in your victim. In the context of drastically escalating family violence, I consider your offending to fall at least at the mid-range of offending.
Plea of guilty
34.It is conceded that your pleas were entered at the earliest opportunity. This has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared your victim the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice, and you are entitled to a benefit for that.
35.By your plea of guilty you have also demonstrated an acceptance of responsibility for your offending, together with some remorse. Remorse is however, complicated by the fact that you told psychologist Ms Carla Lechner, whose report I shall return to, that you took responsibility for your actions but you were disinclined to go into any detail. You 'were not apologetic about the Intervention Order breaches stating that [you] and [your] partner did not want the Order'. You told Ms Lechner that 'an intervention Order doesn't stop love'.
Victim impact statement
36.I received a Victim Impact Statement from your ex-partner, the victim of your offending. The statement was not read aloud in court so I will not quote directly from it. It is clear however, that the ongoing impact upon her and the flow on effect on your children is immense. You destroyed her home and her belongings which has had an emotional and financial consequences and significantly interfered with her mental health. Understandably, she experiences ongoing fear and trauma.
Personal circumstances
37.You are a 47-year-old Aboriginal man, having been born in July 1977 in Burnie, Tasmania. You are the second of three children. You are no longer in contact with your father but report you have a positive relationship with your mother and siblings.
38.You attended three primary schools in Tasmania, where you were expelled twice and suspended multiple times due to your behaviour.
39.Your mother and father were both drug users and alcoholics. You were introduced to cannabis through family members as a child and began using cannabis and other illicit substances when you were 14 years old. You have since experienced periods of heavy drug and alcohol use, particularly involving methylamphetamine. You report having taken a significant amount of Valium before the arson offending.
40.You were exposed to violence in the family home from your father and from uncles and other adults who stayed in the home. Most were drug and alcohol users. You report having 'no happy memories' in your early life. You were regularly bullied because of your family's poverty.
41.You relocated to Melbourne by yourself when you were 16 years old. You did not have a stable place to live after leaving the family home and couch surfed or slept on the street. You did not complete a full term of school in the two years after moving to Melbourne but report obtaining your VCE.
42.You later completed three years of a fine arts degree in Tasmania.
43.You have worked in a range of positions, including furniture removals, landscaping, welding and as a chef's assistant. The longest job you held was for three and a half years from age 16-20 as a welder. Your last job before going into custody in 2024 was fixing motorcycles.
44.You have had several significant relationships and have 10 children with several partners. Your first partner died from a drug overdose and your next two partners were unfaithful. You were in an on-off again relationship with the complainant for nine years.
45.You have infrequent contact with your eldest child and are now in contact with your two youngest children whose mother is your victim in these matters. These two children are in the care of DFFH which facilitates their contact with you.
46.You have experienced ongoing homelessness and have not had any periods of real stability since pre-2004. You have had opportunities through therapeutic dispositions but have not availed yourself of them.
47.You have a history of mental health issues. Your mental health has remained largely untreated as a result of your transience and moving between States. You have made two previous suicide attempts and have engaged in self-harm.
48.Since being remanded in custody, you have been working as a baker. You have also engaged in several courses and participated in the Aboriginal story-telling program.
49.I received a psychological report from Carla Lechner dated 26 May 2025. She opined that your extensive prior criminal history both in Victoria and interstate has 'arisen in the setting of a long-standing drug addiction with underlying mental health issues relating to [your] exposure to adverse childhood experiences'.
50.This report outlined your mental health history and ultimately found that you have symptoms of Complex Post-Traumatic Stress Disorder and Stimulant and Alcohol Use Disorder. Your 'dual mental health and drug addiction problems have undermined [your] social, emotional and vocational development'.
51.
You report a past diagnosis of schizophrenia, but this remains unsubstantiated.
Ms Lechner opined you had 'limited insight regarding the impact this [breach offending] may have on others'. She found that you are 'finding that [your] symptoms of post-trauma are aggravated within the hostile and threatening nature of the prison environment. A lengthy period of incarceration is likely to have a further detrimental impact on [your] already parlous mental health'.
Sentencing factors and considerations
52.Your offending demonstrates egregious family violence committed in a persistent manner and escalating to the point at which you burnt down your ex-partner's home. You then continued to breach the Intervention Order from custody. It must have been terrifying for her. I consider your moral culpability to be high.
53.Your prior criminal history is concerning. You have relevant family violence convictions and were released on a Community Correction Order as part of a combination sentence in October 2004. You were thus subject to that order at the time of the arson offending.
54.I note you are not alleged to have made contact with your victim since the offending the subject of Charge 5 in February 2025. Nevertheless, your prior history and the ongoing and persistent breaches of the intervention order means that specific deterrence is an important consideration in the sentencing exercise. I must make it clear to you by the sentence I impose that offending of this nature will not be tolerated by the courts or the community.
55.General deterrence is also of paramount importance. The prevalence of family violence offending is high and others in the community minded to act as you have done, by breaching family violence intervention orders, and by committing arson in a family violence context, must see that stern punishment will follow.
56.It is not submitted that your case enlivens any of the R v Verdins [2007] VSCA 102 principles although I take your mental health issues and your experience of the prison environment into account in a general way.
57.Your counsel submitted that Bugmy v The Queen [2013] 249 CLR 571 applies to you in a general sense. I agree. Your exposure to violence, poverty, drug and alcohol use, together with your own early drug use, transience and impaired educational opportunities renders your moral culpability somewhat less than that of an offender whose upbringing was not so marred.
58.The effects of this childhood deprivation and lack of foundational support do not diminish over time but necessarily impact community protection given your apparent inability to control your behaviour. Members of the community, in particular your ex-partner, must be protected from your ongoing offending behaviour. I note also the risk to others posed by the arson offence.
59.I accept that there has been some delay in your case when the offending the subject of Charge 5 came to light and was added to the charges already before the court. This delay is relevant in two ways, first, the matter has been hanging over your head for almost a year now. Secondly, you have had the opportunity to demonstrate your efforts at rehabilitation. You have done this by not making contact with the complainant since February 2025.
60.Overall, I consider your prospects of rehabilitation to be guarded, contingent on your meaningful engagement in drug and alcohol treatment, mental health treatment and respecting the court orders put in place to protect your ex-partner.
61.Your counsel, Ms Dubroja, raised the issue of double punishment in relation to Charges 1 and 2. Mx Rattray, for the prosecution submitted that this is not an issue of any significance on the instant facts.
62.I consider the motivation for the first two charges on the indictment to be essentially the same, to light a fire intending to destroy or damage the house and intending to cause harm or fear for safety in your victim. The elements of the two offences are however, quite distinct but I take the need to avoid double punishment into account so far as it is relevant.
63.I was provided with a Sentencing Advisory Council Sentencing Snapshot for the offence of arson, together with a number of 'comparable cases'. The majority of those decisions were from this Court however, I note in particular the matter of Norman v The King [2023] VSCA 213 which provides some guidance from the Court of Appeal.
64.In Norman, the court noted at [57] that 'In view of the maximum sentence prescribed for arson, the sentence imposed by the judge, of two years and six months’ imprisonment, could only be described as moderate'.
65.I take into account the principle of totality, noting the distinct conduct in each charge but the need not to impose a crushing or unjust sentence. Mr Duarte, would you please stand.
Disposition
66.On Charge 1, arson, you are sentenced to three years and nine months' imprisonment.
67.On Charge 2, contravention of a Family Violence Intervention Order intending to cause harm or fear for safety, you are sentenced to nine months' imprisonment.
68.On Charge 3, persistent contravention of a Family Violence Intervention Order, you are sentenced to nine months' imprisonment.
69.On Charge 4, persistent contravention of a Family Violence Intervention Order, you are sentenced to nine months' imprisonment.
70.On Charge 5, persistent contravention of a Family Violence Intervention Order, you are sentenced to nine months' imprisonment.
71.On related summary offence 9, resist emergency worker on duty, you are sentenced to one month imprisonment.
72.I direct that the sentence on Charge 1 be the base sentence.
73.I direct that four months of each of the sentences on Charges 2, 3, 4 and 5 be served cumulatively on the sentence imposed on Charge 1 and on each other.
74.For the avoidance of doubt, there is no cumulation on the sentence imposed on the related summary offence.
75.That makes a total effective sentence of five years one month imprisonment.
76.I direct that you serve a minimum non-parole period of three years three months' imprisonment before being eligible for release on parole.
77.Pursuant to s18 of the Sentencing Act 1991, I declare that you have served 274 days by way of pre-sentence detention, excluding today.
78.Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been a total effective sentence of seven years' imprisonment with a non-parole period of four years eight months.
79.I grant the forfeiture and disposal orders sought by the prosecution.
80.You may be seated, Mr Duarte.
81.MS DUBROJA: As the court pleases.
82.HER HONOUR: Is there anything further, Mx Rattray?
83.MX RATTRAY: No, Your Honour. Nothing from the prosecution.
84.HER HONOUR: Ms Dubroja?
85.MS DUBROJA: Nothing from the defence, Your Honour.
86.HER HONOUR: You may take Mr Duarte out, thank you.
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