Director of Public Prosecutions v Elbourne

[2024] VCC 945

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 23-02110

DIRECTOR OF PUBLIC PROSECUTIONS

v

GERROD ELBOURNE

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2024
DATE OF SENTENCE:	21 June 2024
CASE MAY BE CITED AS:	DPP v Elbourne
MEDIUM NEUTRAL CITATION:	[2024] VCC 945

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW    

Catchwords:              Arson and aggravated animal cruelty

Legislation Cited:      Sentencing Act 1991 (Vic); Prevention of Cruelty to Animals Act 1986 (Vic)

Cases Cited:Verdins v R (2007) 16 VR 269, Norman v The King [2023] VSCA 213, DPP v Charles [2022] VCC 756, DPP v Stokes and Anor [2019] VCC 1518, Hach v R [2018] VSCA 196, DPP v Reynolds [2018] VCC 1164, Luciano v R [2015] VSCA 173

Sentence:                  12 months imprisonment and 3 year CCO and 2 year banning order on the keeping of domestic animals

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. E. Dane	Ms. A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr. S. Kenny	Stary Norton Halphen

HER HONOUR:

1Gerrod Elbourne, you have pleaded guilty to one charge of arson and one related summary offence of aggravated cruelty to an animal.

2The maximum penalty for arson is 15 years.  The maximum penalty for aggravated cruelty to an animal is 2 years imprisonment.

3I consider your offending so serious that an immediate term of imprisonment, in combination with a Community Corrections Order, is called for.

CIRCUMSTANCES OF THE OFFENDING

4The circumstances of your offending were comprehensively outlined in the Summary of Prosecution Opening for Plea dated 21 May 2024.  I will summarise those circumstances here.

5On or about 19 February 2023 you separated from your then girlfriend and moved back into the family home in Leafy View Esplanade, Harkness with your parents and the family dog, Rory.

6On 19 February 2023 your parents went overseas on holiday.

7On 25 February 2023 you were home alone with the dog.  You were seen on CCTV at 7.49pm walking around the rear of the house. 

8At 11.35pm police and Fire Rescue Victoria were notified by neighbours of a fire at the property.  Firefighters entered the burning home to search for people trapped inside.  They located a dog deceased in the ensuite next to a pool of blood.  The fire was extinguished but had engulfed the home.

9The dog, Rory, was removed from the house and found to have sustained a fatal stab wound to the neck. 

10You attended the house and provided a statement to police saying you had been at the beach and then with friends and had lost your phone that day.  You left the scene. 

11Investigators determined that there were 3 separate seats of fire ignited at the house, one in the walk in robe of the master bedroom, one in the garage near the wheel of your father’s Ford FXG XR8 and one next to a generator in a separate area of the garage.

12CCTV footage was obtained from nearby houses which showed you at a side door of the house at 10.39.43pm before a smoke alarm was heard and at 10.41.35pm a loud bang was heard and smoke was observed coming out of the house.

13At 1.26pm the following day, police responding to 000 calls located you attempting to take your own life.  You were placed on an inpatient mental health treatment order.

14Several knives were later located in the washing machine by your parents as they assessed the damage to the house.

15On 13 March 2023 you were released from hospital.  You were later located at Flinders Street Railway Station where you were arrested.

16You participated in a taped record of interview during which you made full admissions to the offending.  You told police “I’d been using some drugs and I think I used a bit too much and I went into a psychosis … my sons were going to be in danger if I didn’t just burn down the house.” 

17You admitted using petrol as an accelerant and further admitted killing the dog but could not recall specific details.

18Fortunately your parents were insured and they have received payments totalling $564,823 for the loss of the property and contents, the loss of the Ford Falcon and for temporary accommodation.  The insurer incurred additional costs of $15,248 for assessment and investigation.

OFFENCE GRAVITY

19The offending is serious and has resulted in danger to others, substantial loss to your parents and the death of the dog.

20You were not acting out of malice or spite and I accept there was no one in the house at the time, however you voluntarily took a substantial amount of methylamphetamine in circumstances where you have a known history of mental illness. 

21I consider the offending to fall somewhere under the mid-range of offending of this type.

PLEA OF GUILTY AND REMORSE

22You pleaded guilty at an early stage, prior to committal, and your plea has significant utilitarian benefit.  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. 

23In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.

24By your plea of guilty, you have demonstrated an acceptance of responsibility for your offending.  I accept there is clear evidence of remorse, as stated by Dr Cunningham and Dr Best and I note that you have also expressed remorse to your mother, who was in court with your girlfriend to support you. 

PERSONAL CIRCUMSTANCES & MENTAL HEALTH

25I turn now to your personal circumstances.

26You are now 29 years of age, having been born in April 1995. You were raised in Ballarat by both parents and have an older sister and a younger brother. 

27You were subjected to sexual abuse as a child and have only fairly recently disclosed that offending. 

28You went to Melton Secondary College but left to complete a plastering apprenticeship after year 9.  You have always worked, except for the period you were in drug rehabilitation.

29You have smoked cannabis since you were 13 and have used methylamphetamine since the age of 15.  Your use has fluctuated and you were abusing both methylamphetamine and heroin prior to this offending. 

30You left home at 16 and have come and gone from the family home since. You have been in 2 long term relationships and have a child from each of those, a 4 year old and a 6 month old.

31You report a diagnosis of Borderline Personality Disorder by a community psychiatrist and continue to display symptoms consistent with this. 

32You are an insulin dependent type 1 diabetic.    You have made several attempts on your life and have a history of inpatient psychiatric hospitalisations.  You receive anti-depressant and anti-psychotic medication.

33Your parents have funded several rehabilitation programs.  You were bailed to reside at the Dream Builders Centre 4 Change rehabilitation centre.  You left after some 10 months following a disagreement about leave from the program to visit your dying grandmother. 

34I received a report from Dr Aaron Cunningham, forensic psychologist, who found you to be exhibiting symptoms of Borderline Personality Disorder likely stemming from untreated childhood sexual abuse.    

35I also received a report form Dr Fiona Best, forensic psychiatrist who found there are aspects in your reported history that suggest borderline personality difficulties, while not going so far as to make a diagnosis.  Dr Best found you meet the criteria for Cannabis Use Disorder and Simulant Use Disorder, both in early remission. 

36She opines that “Mr. Elbourne reported that he was intoxicated with methamphetamine at the time of the alleged offending after injecting ½ gram of methamphetamines … there is therefore a causal connection between the intoxication with methamphetamine and the alleged offending.”

37I note your mother and your girlfriend were in court to support you and your mother wrote a reference on your behalf.  Your relationship with your father remains fractured. 

SENTENCING PRINCIPLES AND FACTORS

38Mr Elbourne, this was most serious offending.  You placed yourself, neighbours and emergency workers in real danger.  Your parents lost their house and their belongings, as well as the dog.   

39While you were heavily intoxicated by methylamphetamine and seemingly committed the offending in an ensuing state of psychosis, there is, as your counsel submitted, no real explanation for the offending.

40You do have a criminal history but your prior offending has little relevance to the sentence I am imposing today.  Nevertheless I consider specific deterrence to have some relevance to you.  While you were psychotic at the time of your offending, you were in that state because of your drug use. You must appreciate that there are consequences to your drug taking.

41General deterrence is of paramount importance.  Others must be deterred from committing offences such as you have done, realising the court will treat arson and animal cruelty with the utmost importance. 

42Further, there is an element of community protection.  This arson placed not only you but neighbours and first responders at significant risk. 

43I also give weight to just punishment and denunciation.

44Dr Best found that a custodial sentence is likely to weigh more heavily on you than it would on an individual without personality difficulties and your mental health is likely to be destabilised by incarceration.  I take this into account and apply Verdins v R (2007) 16 VR 269 limbs 5 and 6, moderating your sentence accordingly.

45Mr Kenny, appearing for you, submitted that I should not impose a sentence exceeding the period already served. Ms. Dane, for the prosecution, submitted that a sentence of imprisonment was called for, noting s 44(1A) of the Sentencing Act 1991 which allows the court to impose a Community Correction Order in combination with any sentence of imprisonment in relation to arson offences. 

46Both counsel provided cases said to represent current sentencing practices.  I have considered Norman v The King [2023] VSCA 213, DPP v Charles [2022] VCC 756, DPP v Stokes and Anor [2019] VCC 1518, Hach v R [2018] VSCA 196, DPP v Reynolds [2018] VCC 1164 and Luciano v R [2015] VSCA 173, however I note the sentences imposed for arson vary greatly in line with the circumstances of the offending and the offender. 

47I had you assessed for a Community Correction Order.  You were assessed as being a high risk of general re-offending.  You were open about your drug use and were amenable to treatment for drug abuse and for your mental health. 

48A Mental Health Advice and Response Service assessment found that you have a mild to moderate mental health difficulty at present. 

DISPOSITION

49On charge 1, arson, you are sentenced to 10 months imprisonment in combination with a Community Corrections Order for a period of 3 years. 

50On related summary charge 2, aggravated animal cruelty, you are sentenced to 4 months imprisonment. 

51Charge 1 will be the base sentence.

52I direct that 2 months of the sentence on the related summary charge be served cumulatively on the sentence imposed on charge 1.

53That makes a total effective sentence of 12 months imprisonment.

54The community corrections order is to have the following conditions:

(a)   You are to report to Geelong Community Corrections within 2 days of your release from custody;

(b)   You are to abide by all core conditions;

(c)   You are to be under supervision;

(d)   You are to undergo treatment and rehabilitation for drug abuse;

(e)   You are to undergo treatment and rehabilitation for mental health; and

(f)    You are to participate in programs to reduce reoffending.

55Do you agree to abide by those conditions and enter the community correction order?

56OFFENDER:  Yes, Your Honour.

57HER HONOUR: We will have that prepared in a moment. I declare that you have served 41 days by way of pre-sentence detention pursuant to s 18 of the Sentencing Act 1991, excluding today. 

58Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been three years and six months' imprisonment with a non-parole period of two years and two months. 

59I grant the forfeiture and disposal orders sought by the prosecution. 

60I further impose a banning order preventing you from owning domestic animals for a period of 2 years pursuant to s 12 of the Prevention of Cruelty to Animals Act 1986. 

61We will have the community correction order prepared now.  We are just going to stand down while that order is prepared.

62(Short adjournment.)

63HER HONOUR:  Mr Elbourne, I will sign the community correction order and then I will have you sign it as well.  Mr Kenny, you can assist Mr Elbourne.

64MR KENNY:  Yes, Your Honour.

65HER HONOUR:  Thank you, Mr Kenny.  Is there anything else from either party?

66MR KENNY:  I just wanted to make it known that despite Your Honour's order about medical treatment, Mr Elbourne only got his proper regime of medication two days ago.

67HER HONOUR:  That is of concern.

68MR KENNY:  Yes.

69HER HONOUR:  We will make another notation on the record.  We did make a notation on the last occasion ‑ ‑ ‑

70MR KENNY:  Yes.

71HER HONOUR:  ‑ ‑ ‑ which is really unfortunately all we can do, but I will have a notation made on the record today as well ‑ ‑ ‑

72MR KENNY:  May it please, Your Honour.

73HER HONOUR:  ‑ ‑ ‑ that that medication regime is to continue.  Does he require treatment immediately?  Does he need to see a nurse immediately?

74MR KENNY:  He is receiving psychiatric medication and his insulin now.

75HER HONOUR:  Yes.

76MR KENNY:  He's not receiving the same dose of psychiatric medication he was receiving.

77HER HONOUR:  No.

78MR KENNY:  But he's receiving some medication so ‑ ‑ ‑

79HER HONOUR:  We will make a notation that he is to see the custody nurse as soon as possible.

80MR KENNY:  May it please, Your Honour.

81HER HONOUR:  Mr Elbourne can be taken out, thank you.  Thank you, we will adjourn until 10.30.