Director of Public Prosecutions v Fitzpatrick

[2016] VCC 2073

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00537

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN EDWARD FITZPATRICK

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2016
DATE OF SENTENCE:	4 November 2016
CASE MAY BE CITED AS:	DPP v Fitzpatrick
MEDIUM NEUTRAL CITATION:	[2016] VCC 2073

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	OPP
For the Accused	Ms J. Swiney	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Ian Edward Fitzpatrick, on 4 November 2016, you pleaded guilty to the following charge on Indictment No. F12771116.1:  Charge 1, arson.  This offence has a maximum penalty of 15 years. You have admitted a prior criminal history. You have six prior court appearances.  Your offending in the past is violent and criminal damage-type offending between 1984 and 2012.

2On the last occasion, you were imprisoned for a term of three years and nine months, with a minimum term of 27 months imprisonment.

THE CIRCUMSTANCES OF YOUR OFFENDING

3At the time of the offence in July 2015, you were in a relationship with the complainant. The complainant was born in May of 1970 and was aged 45 at the time of this offending.  She has cerebral palsy and is largely wheelchair-bound, but is not cognitively impaired.

4In 2015, she resided in supported accommodation at an address in Northcote, together with her young daughter, who was then age five.

5You and the complainant had initially met many years before when the complainant was in her teens.  This relationship at that time was platonic.  You met again by chance after connecting with each other via a dating website in October of 2014.  You became friendly and commenced a romantic relationship in early 2015.  You would from time to time visit the complainant and her daughter at her house, telling her that you were homeless.

6The complainant invited you to live with her and her daughter in around February 2015.  After you had moved in with her, your relationship became more turbulent.  Broadly speaking, you are described as being controlling and possessive.

7Some time at night between the 1st and 7^th of July 2015, the complainant was asleep with her daughter in a bed in the spare room of her home.  She was awoken by you standing at the end of the bed.  You wanted her to sleep with you in the main bedroom, she refused to do so. 

8You then lit a piece of paper with a lighter and threw it onto the floor at the end of the bed.  The complainant’s daughter put the fire out with some water from the bathroom.  The fire burnt the carpet at the end of the bed, causing damage.  I note that the nature of the damage is set out in Photograph 11 of the book of photographs.

9On Sunday 2 August, the complainant and her daughter had moved into emergency accommodation.  You had gone to her house in Northcote.  Unbeknown to you, Protective Services officers were basically waiting there for you.  When you arrived, you were arrested and conveyed to the Heidelberg Police Station for interview.

10You participated in a record of interview with the police, and provided your own version of the happenings between yourself and the complainant, but broadly speaking you admitted this offence.  At all times, you have indicated your intention to plead guilty to this charge of arson.

YOUR PERSONAL CIRCUMSTANCES

11You are now 53 years old.  At the time of the offending, you were 52.  You grew up in the Mentone area.  You were adopted as a young child.  Unhappily for you, your adoptive parents died when you were a teenager. 

12You completed Year 11, and later went on to do a TAFE course in electronics.  You started an Arts degree at Monash, but never completed that course.  Over your lifetime, you've had a good work history.  You have run a fishing business in Gippsland, an industrial and roof painting business, and a security firm.  You obviously have ability and means to conduct a law-abiding life.

13You have had a period of time between 2012 and now, where a large part of your time has been spent in custody.  Your challenge is to put this rough period of your life behind you and get back on your feet with work, and stabilise your living conditions and circumstances. 

14It was put on your behalf that this opportunity awaits you in the Robinvale region. 

15You found your adoptive parents.  Initially, things went well, but ultimately your father denied the paternity, and your relationship with your natural mother did not develop.  You have a relationship with one of your natural sisters.  No one can know the depth of hurt and feeling of rejection a person in your position must feel, even when it occurs at your mature years.

16You have been on remand for this and other offending for 459 days.  That time in custody will exceed the length of this sentence.

17A victim impact statement was filed on behalf of the complainant.  It was read into evidence in this hearing.  The effect of your offending has been to undermine her sense of personal security, and her sense of safety for her daughter.  She has become depressed and isolated, but is now receiving counselling.  I take the impact of your offending on the complainant into consideration when fixing this sentence.

SENTENCING CONSIDERATIONS

18The basic purpose for which a court may impose a sentence of imprisonment are:  just punishment; deterrence, both specific and general; rehabilitation, and; denunciation of your actions, and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it, your personal circumstances, and those of your victim.

19I am required to balance those interests with the interests of the community in denouncing your criminal conduct, and with the interests of the community, in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.

20As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics at the time of the sentence.

21I have considered these statistics, and the current sentence practices, mindful that each case must be considered in light of its own particular circumstances, and many of those cases would be distinguishable from your case, as indeed they are from one another.

22I also take into account the sentencing practices back at the time of your offence.  Each case again has its own distinguishing features.

23The offence of arson will attract a sentence of immediate imprisonment, except in the most exceptional of circumstances.  In this case, you have lit the paper and thrown it onto the floor of a bedroom where you victim was sleeping.  You did this because she would not sleep with you in the main room of the house.  The fire started on the carpet and was extinguished by the victim's young daughter, who tipped water on the small fire.  This is not the most serious example of arson.  Nevertheless, arson as an offence - the main risk is that the extent of the crime is highly unpredictable, and can quickly cause serious property and/or personal damage.  The quick action by the victim's daughter limited the damage of the fire in this case.

24You have pleaded guilty to this charge, and the plea was indicated at an early stage.  Your plea has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome, and a resolution of the substantiative issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal processes set up to protect the community.

25You have, by your plea, relieved your victim from giving evidence against you.  It facilitates some closure for her as a victim of your offending.  Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.

26Your plea also recognises that you are willing to facilitate the course of justice in the community.  I accept that your plea of guilty to this charge indicates and demonstrates remorse on your part.

27You have prior convictions for criminal damage in 1985 and 1986.  In 1992, you were convicted and fined for assault.  Most significantly, you were convicted and sentenced in the County Court in Melbourne on 6 February 2012 for violent offences and make a threat to kill.  You were sentenced to three years and nine months' imprisonment with a non-parole period of 27 months.

28Your prior offending is directly relevant to the offence of arson, in that it relates to violence and property damage at the same time.  Your prior convictions indicate that the only appropriate sentence in this case is imprisonment. 

29Pursuant to the provisions of s.6B, you are to be sentenced as a serious arson offender.  The prosecution does not seek a disproportionate sentence in this case. 

30You have been in custody on remand for this offence and other offences for 459 days.  As I say, the full picture is that you are also in custody on other charges, but a notice of discontinuance in respect of those charges was filed at court today.  You have no further charges outstanding.

31The prosecution submitted that an appropriate sentence for this case is a short sentence of imprisonment, not exceeding the time that you have spent on remand.  Your counsel submitted the appropriate sentence in all the circumstances of this case was that it was not worthy of a term of imprisonment (I am summarising what was put).

SENTENCE

32On Charge 1, you are convicted and sentenced to three months' imprisonment.

33Section 6AAA, but for your plea of guilty, I would have sentenced you to nine months' imprisonment. 

34I declare that you have served 459 days of presentence detention to be deducted administratively from this sentence. 

35I have declared you have been sentenced as a serious arson offender.

36MR HAMMILL:  Yes Your Honour.

37HIS HONOUR:  There is nothing further?

38MS SWINEY:  If Your Honour pleases.

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