Director of Public Prosecutions v Fraser

[2021] VCC 1411

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01890

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON FRASER

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2021
DATE OF SENTENCE:	17 September 2021
CASE MAY BE CITED AS:	DPP v Fraser
MEDIUM NEUTRAL CITATION:	[2021] VCC 1411

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords: Arson – s197 - Late-stage plea of guilty – Criminal history is of limited relevance – Accused suffering major depressive episode – Family violence – Community protection – Disadvantaged childhood – Alcohol abuse disorder - Delay

Legislation Cited:  Crimes Act 1958 (Vic)

Cases Cited:  R v Verdins (2007) 16 VR 269

Sentence:  Total effective sentence – Imprisonment of 3 years and 6 months with a non-parole period of 2 years and 6 months – s6AAA declaration – Imprisonment of 4 years and 6 months with a non-parole period of 3 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	The Office of Public Prosecutions
For the Accused	Mr A.L. Hands	Adrian Paull Criminal Lawyers

HIS HONOUR:

1Aaron Fraser you have pleaded guilty to one charge of arson contrary to s197 of the Crimes Act 1958. The maximum penalty for that offence is 15 years imprisonment. You pleaded guilty after your matter was listed for trial and following committal proceedings which were conducted two years ago. At the committal your ex-partner was called to give evidence and was cross-examined. Therefore, your plea is a late plea, but I accept that it has facilitated the course of justice during the COVID-19 pandemic.  Furthermore, I accept that it is evidence of some remorse for your offending, and I have taken your plea of guilty into account in your favour in mitigation of sentence.

2You have admitted a criminal history which relates to offences committed approximately 25 years ago, when you were aged 17 or 18.  Whilst the second series of offences that you were dealt with for were serious and you were imprisoned, your criminal history is of limited relevance for sentencing purposes in this instance.

3The prosecution opening was tendered in evidence and your offending may be summarised as follows –

4In 2018 you were living in rented premises with your partner and two children in Mount Doran, a small town south of Ballarat.  The relationship between you and your partner ended after some 17 years in mid-2018 and you continued to reside alone in the home, during which time your long-standing mental health issues and alcohol abuse disorder deteriorated.

5On the evening of 18 February 2019, you had an argument with your ex-partner over the telephone.  The next evening, on 19 February 2019, whilst heavily intoxicated and suffering from a major depressive episode, you set fire to the house with a cigarette lighter, causing it to be severely damaged and ultimately destroyed.  The fire also destroyed a motor vehicle belonging to your wife and some of her significant personal belongings.  Investigating police and the CFA attended the scene and you told the police the fire was a 'cleansing act'.  Your counsel informed me that you intended that the cleansing act would also take your own life.

6Due to your mental illness at the time, you were conveyed to the Ballarat Base Hospital for mental health assessment.  You were interviewed by police the following day and stated you had little memory of the incident and did not know how the fire had started.  You were charged with the offence now before the court and remanded in custody, where you remain.  You were not bailed and, as I have already observed, you have spent a very lengthy time on remand in relation to these charges.

7A victim impact statement was prepared by your partner and tendered in evidence, attesting to the effect that your offending has had upon her.  She has lost a number of valued personal belongings and her sense of security has been impaired following your destructive offending. 

8In my opinion this is a serious example of the offence to which you have pleaded guilty.  You set fire to the family home and the belongings contained in it in a disturbed act of retribution, which was directed at your ex-partner.  This sentence must be calculated to deter you and others from offending in this manner, although I accept that at the time of your offending you were suffering from a mental illness and for this reason your moral culpability for what you did is correspondingly reduced.

9The sentence must also be formulated to protect persons who leave domestic relationships from serious acts of destruction such as this, and it must protect the community more generally.  Furthermore, your partner and your children must also be protected from you repeating such an act in the future.

10I now turn to your personal circumstances –

11You were born in July 1978 in New South Wales and are now aged 43.  Your family moved to Bacchus Marsh when you were a child.  There is a serious history of mental illness in your family.  Your mother is schizophrenic and was unable to care for you.  You have had no contact with your father since you were born.  You were made a ward of the State when you were a young child and raised in foster care and residential care units.  As a result, your education was seriously disrupted and you attended numerous different schools, ultimately leaving school in Year 9.  I accept that your background and developmental years were profoundly disadvantaged and disrupted.  Since leaving school you have worked in a range of labouring positions and at the time of your offending you were working at the Meredith Dairy. 

12A psychological report setting out your background and psychological history was prepared by Gina Cidoni, a consulting and forensic psychologist, and tendered in evidence.  Your profile consists of a complex mix of post-traumatic stress disorder and adjustment disorder originating in your disadvantaged childhood.  Your alcohol abuse disorder commenced at the age of 13.

13In 2009 you were involved in a serious motor vehicle accident leading to physical injury and the death of another road user, which in turn has worsened your long-standing mental health issues.  I accept that the principles enunciated by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case.

14Prison has to some degree compounded your depression and whilst you were medicated with Seroquel, a tranquiliser, this medication has been discontinued and you are currently only receiving anti-depressant medication.  Imprisonment has of course assisted in the cessation of your alcohol abuse disorder.

15You have no family support, which is not surprising having regard to your background. You are, in my opinion, an isolated individual, although your counsel informed me this morning that on your release from prison you will be able to reside with a friend in the city of Melbourne.  It is plain that your relationship with your ex-partner is at an end and this is something that you must accept.  In my opinion your rehabilitation is dependent upon you not drinking alcohol to excess and accepting that the relationship with your partner has come to an end.

16Furthermore, it is clear that you will need ongoing support in the community to assist your rehabilitation.  Your counsel informed me that you intend to leave the State of Victoria when so permitted to commence employment elsewhere and start a new life.  In the event that you are released on parole, you will be able to do this presumably with the agreement of the Parole Board.

17Finally, I accept that a substantial amount of your period in custody has been served during the COVID-19 pandemic and, by reason of the COVID-19 restrictions in place in the corrections system, this has increased the hardship of imprisonment upon you.

18Furthermore, there is significant delay in this case and, as I have already observed, you have been remanded in custody for what can only be described as a considerable period. 

19In the result the sentence of the court is as follows -

20On the charge of arson you are convicted and sentenced to be imprisoned for 3 years and 6 months. 

21I direct that you serve 2 years and 6 months before becoming eligible for release on parole.

22I declare that you have served 941 days not including today by way of
pre-sentence detention. 

23But for your plea of guilty, I would have imposed a total effective term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years and 6 months.

24I will make the disposal and compensation orders sought by the prosecution.

25That means you are now eligible for release on parole, Mr Fraser, and that will be a matter for the Adult Parole Board.

26MR HANDS:  Thank you, Your Honour.  I will talk to my client at first possible opportunity and thank you very much.

27HIS HONOUR:  All right.

28MR BROWN:  If Your Honour pleases.

29HIS HONOUR:  Thank you.  All right, those orders will be prepared.  Thank you, the court will now adjourn until Monday at half past ten, thank you.

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