Director of Public Prosecutions v Ganon

[2017] VCC 1314

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00763

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK GANON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2017
DATE OF SENTENCE:	14 September 2017
CASE MAY BE CITED AS:	DPP v Ganon
MEDIUM NEUTRAL CITATION:	[2017] VCC 1314

REASONS FOR SENTENCE
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Subject:  Intentionally causing a bushfire. (six charges)
Catchwords:  Serious arson offender.
Legislation Cited:
Cases Cited:
Sentence:  Five years' imprisonment, with a non-parole period of three   years and four months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr C. Pearson

Pages 1 - 9

 

 

HIS HONOUR: 

1Mark Ganon, you have pleaded guilty to six charges of intentionally causing
a bushfire.  The maximum  penalty for each of these offences is imprisonment for 15 years.  You have also pleaded guilty to one charge of possession of
a drug of dependence.  In circumstances such as here, where you did not possess the drug for a trafficking purpose, the maximum penalty is 30 penalty units or imprisonment for one year.  In addition, you also pleaded guilty to one charge of handling stolen goods, for which the maximum penalty is 15 years' imprisonment.

2When you were arraigned, you also agreed to four summary charges being dealt with by me.  Those summary charges were, committing an indictable offence whilst on bail, for which the maximum penalty is imprisonment for three months; resisting an emergency worker on duty, for which the maximum penalty is 60 penalty units or imprisonment for six months; unlicensed driving, for which the maximum penalty is 25 penalty units or three months' imprisonment; and driving in an unregistered vehicle.  As this will be your second conviction for this summary offence, the maximum penalty is 50 penalty units.

3Charges 1 to 6 are each a “Arson offence” within Clause 5 of the First Schedule of the Sentencing Act 1991, which I shall hereafter call “the Act”).  Because
I will sentence you to a term of imprisonment on each of these charges, you fall to be sentenced as a “serious arson offender” within s.6B(2) of the Act.  That means that in passing sentence upon you for those offences, in determining the length of any sentence of imprisonment, I must regard protection of the community from you as the principal purpose for which the sentence is imposed and I may impose a sentence longer than that which is proportionate to the gravity of the offence, considered in the light of all the objective circumstances. (See s.6D).  Further, the law requires that every term of imprisonment imposed by a court on a serious arson offender must, unless otherwise directed by the court, be served cumulatively on other sentences imposed (see s.6E) and
I must record the fact that I sentence you as a serious arson offender on the record of the court.

4Here the prosecution does not seek the imposition of a disproportionate sentence.  That is an appropriate concession and I will not impose one.  My sentence will provide for some sentences to be served in part cumulatively and some concurrently, as I see fit.  I direct the fact that I sentence you as a serious arson offender in respect of Charges 1 to 6 on the indictment, be entered into the records of the court.

5When you were arraigned, you also admitted prior convictions from nine previous court appearances in the Magistrates’ Court between November 1993, when you were aged 17, and February 2015, aged 39.  You were born on
14 September 1976.  At the time of this offending you were aged 40 years.  Your prior convictions are for dishonesty and driving offences and are really only relevant to sentencing you on Charge 8 and two of the summary matters.  You have no prior criminal history related in any way to acts of arson.

6The circumstances of your offending are contained in a written opening that was exhibited on the plea as Exhibit A.  It was read in court by the prosecutor, Mr Pickering, and accepted by your counsel, Mr Pearson, as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary that I repeat what is therein contained, except in
a summary way.

7Between the 4 and 14 January 2017, you lit a number of grass fires in the North West metropolitan area of Melbourne by attaching weights to sparklers that were lit and thrown into grass by you from a vehicle.  Each of the fires was extinguished by the Metropolitan Fire Brigade.  Areas of grassland were damaged, ranging in size from small areas to as much as 161,000 square metres.  In total some 431,274 square metres of grassland was burned by you.  On occasions, the fire burned close to residential properties, posing a risk to the public and major freeways causing traffic delays.  Self-evidently, this type of criminal behaviour poses a great risk to the safety of people who may be nearby and those tasked with fighting the fire, as well as a great risk of damage to property.  Fortunately,  the damage from your conduct was confined and
no one was injured.

8Each of the first six charges on the indictment are rolled-up charges that roll into one charge, a number of occasions when you lit fires on the day alleged in the charge.

9In Charge 1, you lit six fires on the 4 January 2017 in the Mt Ridley/Donnybrook area, which burned out a total of 54,500 square metres.

10In Charge 2 on the 8 January 2017, you lit five fires in North Keilor/Calder park area, where as a consequence, 33,500 square metres of grassland was burned.

11In Charge 3 on the 9 January 2017, by use of a number of lit sparklers, you burned 7,600 square metres of grassland in Sunshine West.

12In Charge 4, on the 10 January 2017, between 5.40 am and 7.40 pm, you lit five fires in Arundel Road in Keilor, Laverton North, Sunshine West and Keilor, in close proximity to Brimbank Park.  The fire in Laverton North burned 161,874 square metres of grassland.

13In Charge 5, on the 13 January 2017, between 2 pm  and 7.30 pm, you lit three fires in Sunshine West and Keilor Downs.

14In Charge 6 on the 14 January 2017, you lit three fires in Sunshine West, Cairnlea and Keilor Downs between about 8 pm and 10.55 pm.  The fire in Cairnlea burned approximately 100,000 square metres of grassland and
a rotunda.

15CCTV footage had identified a vehicle similar to your vehicle as suspect.  Police observed you driving your vehicle with stolen registration plates affixed, and on the 16 January, you were arrested after a short struggle.  When arrested, you were found in possession of a small quantity of methylamphetamine.  The vehicle was unregistered and you did not have a licence to drive.

16Your offending in Charges 1 to 6 on the indictment is very serious.  You endangered the safety of people and property on a fairly large scale.  The offending extended over a period of almost two weeks and it involved repeated acts of lighting fires.  Any sentence must properly impose a measure of protection of the community from you and reflect deterrence, both general and specific, and must appropriately denounce your offending and impose just punishment and take into account your prospects for rehabilitation, which
I assess as being only fair.  One cannot be more certain, because you must rid yourself of drug dependency and have appropriate treatment for your mental health problems.

17You were charged with this offending on 17January 2017 and you have been remanded in custody since that time.  It is agreed that as at the time of the plea, you had served 226 days pre-sentence detention in respect of these matters. 

18The charges resolved into a guilty plea at a committal case conference on
13 April  2017.  I treat you as having indicated that you would plead guilty at the earliest opportunity.  By your guilty pleas, you have saved the time and cost of a trial.  I also treat your pleas of guilty as indicative of genuine remorse on your part for your actions.

19Because you pleaded guilty at the earliest opportunity, you are entitled to
a reduction in sentence and this will be reflected in the sentence that I shall shortly pass.

20Your counsel filed a helpful written outline of argument, which I marked as Exhibit 1 on the plea.  He also relied upon a psychological report prepared by Mr Cummins, dated 22August 2017, Exhibit 2.

21Mr Pearson submitted that whilst the potential for injury and destruction of property was high, the reality was that the damage was confined to burnt grassland.  That is true, but the danger posed by the extent of your offending,
I think means, your offending is very serious and cannot be viewed otherwise.  Once you lit each of the fires, the extent to which there was risk to property and life was left to nature to determine.

22Although you have prior convictions, this offending represents a big step upwards in the level of seriousness of your offending.  Your remand is the first time you have been incarcerated in a prison.  You have spent most of your time on remand at the Metropolitan Remand Centre, where it is said, and I accept, you have behaved well, remained drug-free and you have a job.

23Mr Cummins assessed you via a video conference.  He has given the opinion that at the time of offending, you were suffering from a chronic adjustment disorder with mixed disturbance of emotions and conduct and stimulant use disorder of at least moderate severity.  Importantly, he said you are not suffering from pyromania.

24When interviewed by Mr Cummins, you told him of two events that had occurred in your life which you consider had resulted in somewhat of an injustice to you and which had caused you to ruminate upon.  The first was an event in 2011 where you were involved in an assault at the Gatwick Hotel in St Kilda, as
a result of which, your two thumbs were severed and re-attached by microsurgery and in respect of which you required physiotherapy.  Your assailant was charged but acquitted of charges on the basis of self-defence.  This has apparently played on your mind ever since.

25The other matter relates to business dealings with your uncle, which resulted in you losing money in circumstances where you believe your uncle took advantage of you.

26It is the effect of these two events upon you which accounts for Mr Cummins opinion, that at the time of offending, you were likely suffering from a chronic adjustment disorder with mixed disturbance of emotions.  Mr Cummins went on to opine that there was a nexus between your suffering from a chronic adjustment disorder with mixed disturbance of emotions and the offending, which he thought had occurred as a cry for help by you to draw attention to your mental state.

27It is conceded that at the time of offending, you were an Ice addict.  You told
Mr Cummins that in the 12 months leading up to your arrest, you were typically using between half and one gram of methamphetamine daily.  I do not accept Mr Cummins' opinion there is a nexus between your offending and your suffering from a chronic adjustment disorder with mixed disturbance of emotions.  The fact remains, when you offended, you were affected by the drug ice and the effects of that drug cannot be disentangled from any effects of any chronic adjustment disorder with mixed disturbance of emotions you may have been suffering from.  The fact you were using the drug ice helps explain your offending.  It does not excuse it.

28I do accept Mr Cummins' assessment, you do not suffer from pyromania.  You may suffer from a chronic adjustment disorder with mixed disturbance of emotions and I have taken this into account in arriving at my sentence, but this is not a case where your moral culpability is in any way reduced because of your mental state and the sentence arrived at must properly apply the principle of general deterrence and protect the community.

29I turn to some matters personal to you.  You are 40 years of age and you live in a relationship of one year standing with a woman.  Your partner has no criminal history and works hard.  You have almost always been gainfully employed, mostly in earth moving, having left school after Year 10.  You have a 21 year old daughter of a previous relationship whom you seldom see.  Your parents are retired and have not been involved with the criminal justice system.  Your parents and partner are fully supportive and were in court to support you at the time of your plea.  You have been a long-term drug user.  Your counsel’s written outline describes you as suffering from a heavy methamphetamine dependency.

30Mr Pearson submitted that whilst on remand, you have endured significant punishment and specific deterrence and he submitted you have already made significant progress towards your own rehabilitation.  He relied upon references from your partner and her parents and others who have worked with you, which I marked as Exhibit 3.  Those references speak to your good character and your remorse for what you have done.  I accept that you are remorseful.

31Mr Pearson asked that I impose a term of imprisonment of not more than
12 months and have you assessed for a community corrections order. 
I indicated in the hearing that I did not think that was an appropriate disposition and it was not agreed to by the prosecution.  In my opinion, your offending is too serious and having regard to the purposes of sentencing which must be taken into account when sentencing you for this offending, I am of the opinion that a term of imprisonment of 12 months and a community corrections order would not properly serve the purposes of sentencing in this case.  For these reasons I will impose a term of imprisonment and fix a non-parole period.

32Would you please stand, Mr Ganon.

33On Charge 1, you are convicted and sentenced to a term of imprisonment of two years.

34On Charge 2, you are convicted and sentenced to a term of imprisonment of two years.

35On Charge 3, you are convicted and sentenced to a term of imprisonment of one year.

36On Charge 4, you are convicted and sentenced to a term of imprisonment of three years.

37On charge 5, you are convicted and sentenced to a term of imprisonment of one year.

38On Charge 6, you are convicted and sentenced to a term of imprisonment of two and a half years.

39On charge 7, possession of a drug of dependence, you are convicted and discharged.

40On charge 8, retention of stolen goods, you are convicted and sentenced to
a term of imprisonment of one month.

41On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.

42On the summary charge of resisting an emergency worker on duty, you are convicted and sentenced to a term of imprisonment of one month.

43On the summary charge of unlicensed driving, you are convicted and sentenced to a term of imprisonment of one month.

44On the summary charge of driving an unregistered vehicle, you are convicted and fined the sum of $200.

45I direct that one year of the sentence imposed on Charge 6, and six months of the sentences imposed on Charge 1 and 2, cumulate upon the sentence imposed on Charge 4 and upon each other, making a total effective sentence of five years' imprisonment and I direct that you serve a minimum term of three years and four months before being eligible for release on parole.

46For the purposes of s.6AAA of the Act, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of seven and a half years and I would have fixed a non-parole period of five years.

47I declare that there has been 241 days pre-sentence detention and direct that 241 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the court and deducted administratively.

48I have been asked to make an order under s.464ZF of the Crimes Act 1958. For the reasons stated in the order, I have signed it, which means that whilst in custody, a police officer may take a forensic sample from your body, in the form of a swab from your mouth.

49I have been asked to make orders for forfeiture and disposal of various items, which were not opposed and I have signed those orders.

50I have also been asked to make an order under s.84U of the Road Safety Act 1986 for the impoundment of your motor vehicle used by you in the commission of these crimes.  That order was also not opposed and I have signed it.

51Have a seat, Mr Ganon, if you would.

52MR PICKERING: Your Honour, if I may say. The only matter that arises is with regard to s.84U. I understand in the original - - -

53HIS HONOUR:  You sought one?

54MR PICKERING:  Well, it's a bit confusing, Your Honour.  I don't recall making the application on the day.  I am not saying I didn't, but I don't recall it, but that - - -

55HIS HONOUR:  You did - well it was referred to in your opening.

56MR PICKERING:  Yes.

57HIS HONOUR:  That is where it is from.

58MR PICKERING:  Well this is where the issue arises, Your Honour, because the original version of the opening did - - -

59HIS HONOUR:  Do you seek it or not?

60MR PICKERING:  Well, no, Your Honour, - - -

61HIS HONOUR:  Can we cut to the chase?  You do not seek it?

62MR PICKERING:  I don't seek it because it's covered by the forfeiture order, Your Honour. 

63HIS HONOUR:  I am sorry?

64MR PICKERING:  It is covered by the forfeiture order.

65HIS HONOUR:  Very well, I will not make that order. 

66MR PICKERING:  If Your Honour pleases. 

67HIS HONOUR:  Any matters arising, Mr Stewart?

68MR STEWART:  No, Your Honour.

69HIS HONOUR:  Very well, thank you.  Would you removed Mr Ganon please.

70Adjourn the court.

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