Director of Public Prosecutions v Finn

[2019] VCC 891

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00061

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONOVAN FINN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	17 June 2019
DATE OF SENTENCE:	18 June 2019
CASE MAY BE CITED AS:	DPP v Finn
MEDIUM NEUTRAL CITATION:	[2019] VCC 891

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr J. Anderson	Sullivan Braham Pty Ltd

HIS HONOUR:

1Donovan Finn, you have pleaded guilty to:  one charge of burglary; one charge of theft; one charge of arson; and one charge of possession of a drug of dependence, being a small amount of cannabis; and one uplifted summary matter of unlicensed driving.

2Those crimes carry maximum penalties of 10 years, 10 years, 15 years, a monetary penalty and six months.

3On the charge of possess a drug of dependence I simply convict and discharge.  On the charge of unlicensed driving, seven days to be served concurrently with the sentence imposed on the other matters.

4The situation is that you are now 46 years of age and you have been on remand for this offending for 314 days.  You pleaded guilty at a reasonably early opportunity, having denied the offending when first interviewed by police.

5The situation with remorse is somewhat problematic as even to a psychologist or a psychiatrist you are insisting that the whole thing had been an accident, and clearly that is not the case.  I think in this situation it is probably important to put the offending into a context.  It has, because of the sheer magnitude of the consequences of the offending, a somewhat emotive aspect to it.

6You, as I said, are now 46 years of age.  You are of Aboriginal descent and you were brought up with brothers and on the mission at Lake Tyers.  Your father, an Aboriginal man, a Gunai man, left when you were quite small and he apparently has done reasonably well.  You and your brother, Jason, who has unfortunately passed away in recent times, have both been sentenced by me before.  You were in homes by the age of ten.  You were in Baltara, Turana and all sorts of other institutions for children.  You were committing criminal offences by the age of 12.

7As your life progressed you continued to commit criminal offences in a way which is totally in accord with my experience of those who were brought up in the Baltara environment.  You have been incarcerated and institutionalised on numerous occasions for burglary, theft and drugs and the like.

8Around about 2013 you were sentenced by me to a significant period of imprisonment.  You served that period of imprisonment and then went to Blacktown in New South Wales.  In Blacktown you were able to form a relationship with a woman of Maori descent and you have a four year old child with her whom you have had a lot of contact and given a lot of support to.  She has four children of her own.  She is not a drug user. For the last five years you have been able to keep yourself out of trouble with the police.  You have been able to work during that period of time and earned a significant income.

9You have described to your counsel, and I accept this, that that five years he's probably been the best five years of your life.  You turned around a very unfortunate background, which gives rise to the principles in Bugmy, which counsel will totally understand what I am referring to, and you have been able to have a proper social community existence.

10In August 2018 your mother had a heart attack and you returned to Maffra to take care of her.  During the course of the week that you were here you had a total relapse and fell back into old habits with old acquaintances.  The consequences of that seven day in effect relapse have been catastrophic, not only for you, obviously in this situation, but for a large number of other people in the Maffra area, and I simply go through that background to indicate that what you did here was not something that was premeditated or planned in advance.  It was in effect spontaneous.  As has been discussed with your counsel during the course of the plea, this sentencing exercise involved balancing a very disadvantaged background and a turnaround in your life against extreme consequence of the crimes that you have committed.  I am not going to go through your criminal history in detail.  You have been gaoled on numerous occasions.  As I have indicated, it is just the last five years where you have been able to keep out of trouble.

11On 4 August 2018 you drove a motor vehicle to the premises of Andersons Removals in Malmo Street in Maffra.  You did not have a licence and that gives rise to the uplifted summary matter.  That vehicle belonged to a friend of yours.  You forced entry into the Anderson Warehouse that is situated at that location with the intention of stealing.  That gives rise to the charge of burglary.  You stole a number of items including fuel cards, truck keys, storage container keys, a Hitachi drill, rolls of toilet paper, a framed racing car print, documents, adhesive, leather cleaning equipment, three keys on a dog chain and a white hard drive, which was later apparently dropped by you in the driveway of the premises.

12On one view it would appear that you were stealing random items with very little value.  On another view the difficulty is that you were stealing truck keys and storage container keys, which would have involved an element of choice and an element of perception on your behalf.  The fuel cards were obviously stolen and intended to be used.  What you were going to do with those various sets of keys is anybody's guess, but it is not simply a totally random act of theft.

13What then happened was at some point those items were placed in the vehicle you were driving and at some point in time, and I am not prepared to find in which order, you set fire to that warehouse by igniting available materials.  As you were leaving you dropped the hard drive, as I have indicated, in the driveway of the premises.  CCTV shows you driving away from the premises at the same time as an explosion comes from within the warehouse.

14The circumstances of the arson are that it was lit with combustible materials that were within the premises.  There is no suggestion here that you took accelerants or in any way went to the premises with the intention of burning it.  It is clear to me that at some point during the course of that theft you determined that you were going to light a fire.  I have no doubt that you would not have appreciated the total extent of what was to occur.  As discussed with your counsel, once you start a fire such as this you are going to have to, unfortunately for you, wear the consequences of it.

15As a result of the fire the entire warehouse was destroyed and I am told that it is something in the order of half a million dollars.  That warehouse contained household goods and personal items belonging to about 49 customers of Andersons.  All those items were destroyed.  It is estimated that the value of the items destroyed of a personal nature was something in the order of around about $1.3 million.  That is a lot of money and a lot of possessions, often in situations of arson we have circumstances where it is limited to one person suffering a loss or one building.  In this there are literally dozens of victims.

16As I understand the situation, insurance was inadequate and a significant number of those people have not been able to recover the full extent of their losses.  I have not had that explained to me in total detail but it is easy enough to say that the overall result is something like $2 million.

17At around about 2.19 am on the morning - on 6 August, that is around about an hour and 20 minutes after you went into the premises, you contacted a friend called Michal Orchard, though you later denied any knowledge of him.  He just heard you as being irrational, erratic, stressed and appeared to be panicking.  You told him that you had done something you regretted and you made arrangements to meet up in person with him, as I understand it, with the intention of buying cannabis.

18You met him later that morning in Stratford and made partial admissions.  Phone call charge records show the contact between you and Mr Orchard.  They also show you being active in Maffra during the early hours of that morning and later in the Stratford area where, of course, you met Mr Orchard.  On the evening of 6 August you attended at a friend's house from whom you had borrowed the car, as I understand it, in Sale and you were in possession of the items or a number of the items that I have listed.  You did not give an explanation as to how you came to be in possession of those items but you requested that the friend burn the documents in her incinerator.

19On 7 August at around about 8.30 in the morning a witness located the stolen fuel cards in the middle of Blyth Street in Maffra. With them was your Commonwealth bank card.  That is close to the residential premises where you were staying at that time in McAdam Street, Maffra.  During the afternoon of
7 August you attended Ramanyak Medical Centre, complaining of respiratory issues.  You do have emphysema.  That would appear, on your instructions and on the Crown brief, to have been exacerbated by being present during the course of the fires.

20A search warrant was issued at your friend's house and various items were seized.  On 9 August she contacted police and advised them that she had come across other items which had been stolen and that were then handed to police.  On 8 August you were arrested at the medical centre. You were taken to the Sale Police Station.  Four grams of cannabis were located and I have already dealt with that matter.

21A record of interview was conducted with you.  You denied the allegations in relation to arson, burglary and theft and denied having driven.  You have subsequently, once the forensic materials became available, obviously, ended up pleading guilty and you must, of course, get the benefit of that. Remorse, as I have indicated, it is somewhat problematical but there is certainly a very powerful utilitarian benefit in a plea of guilty to a matter which could have been as complicated as this.

22You ultimately told a psychologist and your counsel obviously does not rely on this, but you told a psychologist that somehow or other this occurred with an accident of dropping a cigarette lighter, and I made it very clear during the course of the plea that you will be sentenced on the basis that the arson, perhaps not the full extent of it, but the arson itself was a deliberate and conscious act.  Obviously you have many priors for dishonesty including burglary and theft, but you do not have any prior convictions, as I understand the situation, for any form of arson.

23You were remanded by police and have remained in custody since.  The consequences of this act of arson have been, as I indicated, catastrophic.  The manager or owner - I suspect it is a company - of the victim, a Mr Verrill, made a victim impact statement which quite eloquently and in fairly short compass describes what had occurred.  He was called to the scene of the fire and I can only imagine the shock when he saw that.  He said:

'Within a day of the fire the business and all staff were in utter and complete chaos.  We'd lost an entire office complex and that was the loss of everything that allowed the business to function.  Within a day we'd gone from a business running at 95 per cent capacity to a business that was left without any means of functioning'.

24He said:

'Perhaps one of the most emotional and difficult tasks I was faced with explaining to the 20 team members, the majority of which have young families, that the immediate future for the business was uncertain'.

'The three weeks following the fire would be summarised by two words, "emotionally shattering".  As a general manager of the business I'm responsible for all facets of the business and work closely with another team member, Melissa, in the office to ensure that the business functions smoothly and successfully.  The pressure on myself personally is unbelievable.  I had to manage all team members who were in a state of shock.  The directors of the business' -

25- that is his mother and father-in-law -

'required intense support.  We had to work rapidly to rebuild the bookings and we were then faced with looming insurance issue of the 40'

26- he says, though I understand it to be 49 -

'clients who'd lost all their possessions.  What became obvious within a few days of the fire was of the fact that through the course of poor advice from our insurers, the business was significantly under insured.  Lisa and myself had the most difficult task of contacting all clients who'd lost personal possessions in the fire and then explained that only partial insurance was possible to be offered.  Having to explain this was most difficult through no fault of the business.  We've been placed in an incredibly distressing position.  A business teetering on the edge of complete failure with a large number of clients who demanded fair compensation for their loss'.

27The company was threatened with personal legal action from some of the people who'd lost their property.  As I have indicated, I do not understand how the insurance in this situation works, but it is very significant.

28Accordingly, there is a very, very large loss of property and money involved in all this.  There is a very widespread sense of anxiety and shock and emotional distress caused to a large number of people.  People would have been afraid for their work.  Offending to this level in such a situation has, and can have, a dramatic effect on an entire town.  The consequences of it or the ramifications of it have been obviously immense.

29Mr Berrill said in the end, to his eternal credit:

'I feel sad for the person that committed this offence.  I don't understand how someone could conceivably make a choice to cause this incredible amount of misery and destruction'.

30So that is what you fall to be sentenced for and there is simply no way around it.  I have already indicated the circumstances of your background.  I have indicated how well you have done in the last five years.  I have indicated how you are now in Sydney, have a stable accommodation.  You had had work.  Your partner has said that she will stand by you and, indeed, has come down from Sydney to Melbourne a number of times already to visit you in gaol with the assistance of VACRO.  Upon your ultimate release you do have somewhere to go, you do have, on the face of it, a partner and you do have the capacity to work.

31I take into account that since you have been in custody and understanding fully you being Aboriginal, the consequences for you of your brother having died and you being unable to do anything about the sorry business, I do take that into account.  It is an unfortunate situation that seems to occur so many times with Aboriginal people in custody.

32Your mother subsequently, and again, consequent to the death of your brother, has had another heart attack and has had bypass surgery.  You have obviously been in custody while almost all of that has taken place.

33You have post-traumatic stress from your childhood.  I take that into account.  You do have an antisocial personality disorder, as diagnosed, and again, I take that into account.  Also in these circumstances there has to be an element of community protection.  The principles of Verdins do not arise here despite those difficulties that you have, but I do understand that so far as the decision such as Bugmy and the like are concerned, that this sort of background with those sorts of problems simply just does not go away.  I can understand the effort that you have put in over the last five years to turn your life around and it is just extraordinarily unfortunate that in a few minutes of madness you have made a decision which has so badly affected so many people

34A report was tendered on your behalf from Mr Ball and as I have indicated to counsel it is a very short one.  He confirms the diagnosis that I have outlined.  He regards your antisocial personality disorder as severe.  He said you satisfy the diagnostic criteria for severe opiate use disorder.  You have been on methadone, as I understand it, for some five years, which would appear to have been helping you significantly.

35Other than that his report confirms basically the dreadful aspects of your childhood and your upbringing and you have been abused whilst in State care as a small child.  You were sexually abused, physically abused, and have clearly been abused by a subsequent partner of your mother.  You were placed in Christian Brothers homes at various times and I do not really need to go through the detail of all that.

36You have had, up until more recent times, a limited work history in unskilled positions and, again, that is one of the extremely unfortunate aspects of this, that you have put all that at jeopardy because of what you did.

37The prospects of your rehabilitation are really up to you.  The risk of you reoffending in this way, that is by arson, I think, is low.  The risk of you committing further burglaries, of course, is going to be dependent upon your ability to stay clear of drugs.  I accept, on what is put to me, is that you were drug affected on amphetamine and GHB in all probability, when this offending occurred, and indeed, you were found with cannabis on your person.

38The history involving burglaries and the like is long indeed.  It seems pretty clear to me that even though it was done spontaneously, the decision to burn the place was to hide the consequences of your crime, whether it was to destroy in some childlike fashion, which as I indicated, we would normally have at Children's Court, the fingerprints or whether you just wanted to hide what  you had actually stolen for your own purposes, I do not think we will ever know, and I suspect that you might not know either.

39But in any event, that is what this whole plea comes down to.  A very disadvantaged man who has tried to turn it around, who has then effectively, as I think counsel said, blown the lot in a very short period of time.  The consequences to the town of Maffra and all the people I have described have been severe and, accordingly, the sentence must reflect that, although doing the best I can to take into account the efforts that you have made in recent times.

40I have been given sentencing statistics and I have been given comparable cases.  They are of some assistance in a situation like this but there are always differences.  There are differences in age, there are differences in criminal histories, value of property lost, motivation for starting these fires, and I accept what your counsel says to me, that statistically at least a sentence of more than four years for arson is unusual.  However, I have taken the view that the consequences here despite the matters put on your behalf, the consequences here have been so catastrophic that such a sentence must be imposed.

41The offending all occurred in the space of about half an hour, so there will be very substantial concurrency in the sentence that I impose.  I am giving you an opportunity for parole at an earlier time, whether you are able to achieve that or not I do not know.  The s.6AAA will give you a pretty clear indication as to what would have occurred if you had run this as a trial and lost.  So there is a very significant benefit for your plea of guilty.

42In any event, on Charge 1, 12 months, on Charge 2, three months concurrent.  On Charge 3, four years and six months.  Charge 4, convict and discharge and I have indicated the summary matter is seven days concurrent.  I direct that three months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed in Charge 3.  That gives an effective head sentence of four years and nine months.  In these circumstances I direct that you serve a minimum term of three years before becoming eligible for parole and I direct that 314 days be reckoned as having been served under this sentence.

43Just so that yourself and your family understand the benefit of the plea of guilty, had you fought this out as a trial, Mr Finn, and lost, I would have given you seven and a half years with a minimum term of five.  The psych report was never officially tendered so I will make that Exhibit 1.  Thank you for that, Madam Associate.

44EXHIBIT 1 -  Psychological report.

45No other orders I have to make, gentlemen.

46MR GRAY:  We only had the disposal for the - - -

47HIS HONOUR:  It is done, disposal is done.

48MR GRAY:  Thank you, thank you, Your Honour.

49HIS HONOUR:  There is no 464?

50COUNSEL:  No.

51HIS HONOUR:  No, all right, thanks, gents.  Yes, thanks, take him out, thank you.

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