Director of Public Prosecutions v Glover

[2022] VCC 753

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-00018

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN GLOVER

---

JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2022
DATE OF SENTENCE:	24 May 2022
CASE MAY BE CITED AS:	DPP v Glover
MEDIUM NEUTRAL CITATION:	[2022] VCC 753

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Arson – Possess drug of dependence – Mental health – Very good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Sentencing Act 1991 5; 6AAA; 18.

Cases Cited:Boulton v The Queen [2014] VSCA 342; DPP v Lowe [2019] VCC 1680; Gavin Hach v The Queen [2018] VSCA 196; Maddocks v The Queen [2020] VSCA 47; Rossi v The Queen [2021] VSCA 296; Worboyes v R [2021] VSCA 169.

Sentence:                  11 months imprisonment and 18 month Community Corrections Order.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms G. Overend (Plea)	Office of Public Prosecutions
Ms J. Malobabic (Sentence)
For the Accused	Ms C. Foot	Emma Turnball Lawyers

HER HONOUR:

1Nathan Glover, you have pleaded guilty to one charge of arson and one charge of possess drugs of dependence.  You have also agreed to this court hearing and have pleaded guilty to the summary offences of possess prohibited weapon and commit indictable offence whilst on bail.

2The maximum sentences are as follows: arson is 15 years' imprisonment; possession of a drug of dependence, five penalty units; possession of prohibited weapon, 240 units of two years' imprisonment and commit indictable offence on bail, 20 penalty units or two months' imprisonment.

Circumstances of the offending

3The full circumstances of your offending are set out in the summary of prosecution opening, dated 27 April 2022. 

4In brief, police conducted a search on Telegram, a social media application and located a conversation between ‘HoodlumsofMelbourneSpecialOperations’ and ‘Nate Glub’ (yourself) which took place on 6 September 2021.  You stated, 'I'm down for specials ops only if I get to burn down something'.  The response was, 'Those 5G towers would make a nice fire'.  Then you wrote, 'My thinking exactly.  I've made preparations already.  Now, understand, I'm a little concerned about privacy due to recent changes of law.  So, just the Mornington Peninsula for my location atm'.

5At 2.20 am on Thursday, 7 October 2021, you arrived on your two-wheeled electric scooter at 1250 Nepean Highway, Mt Eliza. You then cut a hole in the fence surrounding the substation and 5G tower with wire cutting implements to enable entry.  You climbed into the air-conditioning unit attached to the substation and poured a red coloured flammable liquid, contained in a bottle labelled methylated spirits down a wire track connecting the substation and 5G tower.  You set the liquid alight using an unknown ignition source, which caused the 5G tower to catch fire, resulting in significant structural damage.  You then fled the scene.  You caused damage in the amount of $555,036 and this is the basis of Charge 1.

6At the time of your offending you were bailed for charges of using a telecommunications device to harass and menace, allegedly committed in October 2020.

7On 7 October 2021, a tower technician attended the scene to examine the fault with the tower, observed fire damage and reported the matter to the police.  Police attended and arranged for an arson chemist to inspect the damage the following day.  CCTV footage from a neighbouring property was obtained, which depicts you attending and leaving the area at the relevant time.

8On 14 October 2021, police executed a search warrant at your address and arrested you.  They seized a number of items, including clothing that matched the scene in the CCTV footage and seven jars containing brown mushrooms (1041.7 grams psilocybin) located in the walk-in robe of the master bedroom and approximately 17 grams of cannabis.  This forms Charge 2.

9They also located Samurai swords in the walk-in robe of the master bedroom (small sized samurai sword with gold coloured cover and large seized samurai sword with gold coloured cover) (Summary Charge 3).

10An examination of your phone revealed photographs of the 5G tower. You were interviewed by police and largely denied the offending at the time. You were then remanded in custody where you have remained to date.  You have a total, it is agreed, of 221 days in pre-sentence detention.

Gravity of the offending

11The seriousness of your offending on the arson is reflected in the maximum penalty set by parliament.  The prosecution submit that your offending is in the medium/high range for this type of offending.  Extensive damage was caused to the tower and there was a degree of planning.  A Telstra communication technician said that the tower structure and the hut was damaged.  The hut was completely destroyed and the tower structure will need to be completely stripped.

12I have had regard to the photos of the damage, which were tendered as Exhibit C on the plea. Your offending was motivated by your belief that 5G towers were causing harm in the community, one of the many conspiracy theories you were engaged with during the lengthy lockdowns. The damage to the base station impacted Telstra's ability to provide coverage to customers serviced by the mobile site. The prosecution, however, do not suggest that you acted with an intention to cause major disruption to the use of public services.

13While your offending is serious and was deliberate, I accept as was put on your behalf, that it was not particularly sophisticated offending.  You acted alone, wore no disguise and you rode your scooter to the tower closest to your house and lit a small fire.  Although the damage to the equipment was costly, the fire brigade were not called but rather, your offending was discovered the next day, as I have already referred to, by a technician. I accept that your case can be distinguished from a coordinated attack on multiple locations, which is well-planned and sophisticated in its methods and execution. Importantly, the fire did not threaten life or any adjoining properties. I accept, as was submitted on your behalf, that your case does lack a number of aggravating features and that it sits at the more serious end of the scale by reason of the significant cost of the damage and the targeting of a public infrastructure.

14Your counsel also submits that your offending was out of character and occurred within the context of acute distress and the difficulties you were experiencing arising from the COVID-19 related lockdowns. Your counsel, Ms Foot, submits that you, 'Fell down the rabbit hole of COVID-19 related conspiracy theories and propaganda spread through social media and this led to the stupid and destructive decision to damage the 5G substation’. The prosecution accept that at the time of your offending you were labouring under significant anxiety and stress and the belief that the 5G towers were causing harm to the community. I note that in her letter to the court, your mother talks about the disruption caused by the restrictions and how it affected your work and your music and took its toll on you. Your father also states that the pandemic appeared to have altered your behaviour.

15You told consultant psychologist, Dr Ian McKinnon, that during this period, 'I was stressed. COVID hit in 2020 and the whole music industry was decimated, live gigs, festivals, all banned.  Current Affairs did a story on me.  I was a big part of the process against the vaccine mandate.  I was hit financially.  I was isolated.  I got obsessed with the whole thing.  Then when they shut down the construction industry it was the last straw'. Mr McKinnon opines that at the time of your offending you were suffering from a mixed anxiety and depressive disorder.  He considers that this significantly contributed to your offending by degrading your ability to reason and make sound judgment, fuelling angry impulses and obsessive ideation and distorting your perception of events and your personal responsibilities. While your counsel quite properly did not seek to rely on any Verdins principles, and while this does not excuse your offending in any way, it helps place it within its proper context. I accept that your offending occurred at a time when you were experiencing significant distress and heightened anxiety and depression.

16I regard the remaining charges as relatively low level.  In terms of your possession of drugs, I was told you smoked cannabis and used psychedelics irregularly.  The mushrooms located by police had apparently been in your possession for many years from your own foraging and were unlikely to have much affect anymore.

17In relation to the possession of the Samurai swords, your father provided an affidavit effectively stating that he was given swords from his father and that he passed on some of these family heirlooms to you.  I note that they were located in a cupboard in your home.

18Your offending occurred whilst on bail for another matter committed in October 2020 and ultimately, dealt with by way of conviction and fine in December 2021.  As I regard this as an aggravating feature of your offending I will impose a concurrent sentence on this charge to avoid any double punishment.

Plea of guilty and remorse

19Mr Glover, your case resolved at committal mention and you entered a plea of guilty on 13 January 2022.  I accept that this was a plea of guilty at the earliest opportunity.  I accept that your plea of guilty represents an acceptance of responsibility on your part and is indicative of remorse.

20You told Dr McKinnon, 'I don't intend to do anything like this again.  It's punished my girlfriend and my family more than anyone else.  I feel guilty as'.  I also accept that you have expressed remorse for your offending to your family and friends.

21Your plea of guilty has significant utilitarian value, particularly in circumstances where there is still a large backlog of cases in the court.  I recognise the utilitarian benefit of the plea and I accept your counsel's submission that a significant discount is warranted for the utility in facilitating the course of justice during the pandemic.[1]

[1] Worboyes v R [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296, [15].

Personal circumstances

22You background was canvassed in detail in the report of Mr McKinnon and also, outlined by Ms Foot on your behalf.

23In brief, Mr Glover, you grew up on the Mornington Peninsula with your parents and three siblings.  You had a supportive and happy childhood.  You married at 18 years of age and that relationship lasted for some 18 years.  You have been in a relationship for the last seven years with your current partner, Ms Kaschke. You are the stepfather to her young teenage daughter.In her reference to the court, Ms Kaschke speaks of you as a loving and supportive partner and stepfather.  While your time apart has been challenging she also states, 'We have learnt so much about what we mean to each other and how the success of a relationship is based on connection'.[2]

[2] Exhibit 4.

24You have been employed since finishing Year 12.  You worked in various industries but have mainly been employed as a concreter. You have work available upon your release with a commercial concreting company.  You are a passionate and talented musician and have created and produced music from a young age.  You have apparently produced and released 44 albums.

25Prior to your incarceration you also played basketball for many years in the local Frankston team.  Your good friend, Mr Renaud, who provided a reference, first met you through local basketball and you then played together for 15 years in the Flinders Christian Basketball Association and the Frankston District Basketball Association.[3]

[3] Exhibit 3.

26You have a limited history of drug use and have irregularly used cannabis and psychedelics.  I was told you now recognise that you need to stay away from these substances as they can make you more susceptible to becoming obsessed with conspiracy theories or other 'fringe ideas'.

Prior criminal history

27Your prior criminal history comprises three matters.  On 16 November 2016, you were placed on a without conviction undertaking for a charge of possess prohibited weapon without exemption approval.  On 8 February 2017, you were before the court for driving matters and a charge of deal with property proceeds of crime and trafficking methylamphetamine. You were convicted and sentenced to a Community Corrections Order for 12 months with conditions.

28On 27 February 2020, you were convicted and fined in relation to driving charges.

29I note that you completed the CCO imposed in 2017. I received a letter from Mary Budd, manager of Crib Point Community House where you did your community service work.  She describes you as honest and courteous, as motivated, reliable and concludes by saying, 'I can't speak highly enough of him and I would have him back in a heartbeat’.[4]

[4] Exhibit 8.

30As far as your criminal history is concerned, I accept that there is nothing of this nature or seriousness and I consider this is relevant to an assessment of your prospects for rehabilitation and the need for specific deterrence.  I also note that you have never previously been sentenced to a term of imprisonment.

Factors in mitigation

31I take into account, Mr Glover, the additional factors in mitigation that were advanced on your behalf by Ms Foot.

Mental health

32In terms of your mental health, I have already referred to the report of Dr McKinnon.  At the time of his assessment you were not suffering with symptoms that meet the clinical criteria for any major diagnosable psychological disorder.

33At the time of the offences, he considered that you were suffering from a mixed anxiety depressive disorder.  I accept that this is relevant and offers insight and a cogent explanation as to how someone like yourself became involved in this offending.

Time in custody

34You have been in custody since 14 October 2021, which is now over some seven months. You have served your time in custody during the currency of the pandemic.  I was told that you have spent 79 days in isolation because of your various movements within custody.  You have been subjected to greater restrictions and deprivations than in normal times because of the impact of the pandemic.  I accept that your extensive experience of isolation in custody, along with these restrictive conditions, has made prison more onerous and harsh.

35Your partner also talks about the difficulties caused by the current restrictions in custody.  She refers to your isolation as, 'frequent and confusing periods of time when she has been unable to call you'. I take these matters into account in sentencing you.

Prospects of rehabilitation

36I accept that your prospects of rehabilitation are very good.  I accept that your offending occurred within the context as already described and that it is highly unlikely that you will find yourself in the same circumstances again.

37Your counsel submits that you have had several months now to detox from the internet and reflect on your situation and what you did.  You have demonstrated insight.  She also submits that your time in custody has been a huge personal deterrent and has allowed for considerable self-reflection and perspective.

38In assessing your prospects of rehabilitation, I also take into account your early plea of guilty, your remorse and regret and your clear acceptance of responsibility.  Your counsel indicated at the plea hearing that you still hold some views that may not be mainstream or common.  You are free and entitled to hold your views, Mr Glover, but you are not entitled to break the law.  There is a clear line to be drawn and I am assured by Ms Foot, that you now well and truly appreciate this.

39Prior to this offending and its lead up you were an active and productive member of the community.  Upon release, you have work, music and a supportive and loving partner, family and friends to return to.  I accept that these are significant protective factors.

40I received a number of testimonials that were tendered on your behalf, some of which I have already referred to.  Mr Renaud describes you as always quick to help, supportive and as a loving partner and father.  Your partner offers her continuing love and support and concludes by saying 'We have plenty of reasons to use this experience to accelerate positive change and confront the underlying reasons that led to this'.  Your mother,[5] two sisters[6] and father[7] have all provided letters and describe your positive attributes, referring to you as reliable, diligent, hardworking, honest and caring.

[5] Exhibit 5.

[6] Exhibit 6.

[7] Exhibit 7.

41In custody, notwithstanding the current restrictions, you are working in the laundry, you work-out, play basketball and you have completed a music course.

42The prosecution also agree, Mr Glover, that you present with good prospects of rehabilitation, given your ability to complete a previous CCO, provided you continue to abstain from substance abuse.

Sentencing principles

43The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community.  General deterrence is a significant consideration, given infrastructure was the target of your offending.  Others must be deterred from committing such offences.  There is a need for this court to send a clear message to any other individuals in the community, who might be minded to commit arson for whatever reason, that if they do they will receive condign punishment. 

44I accept that specific deterrence can be afforded less weight because of your circumstances and the deterrent impact of your period on remand.  Also, given my favourable assessment of your prospects of rehabilitation, I accept that the protection of the community is not a dominant factor in the sentencing synthesis in your case.

45I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case.  I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty to, in particular, for arson.  Both counsel provided me with cases.  The current sentencing practices are but one factor to be taken into account. They do not set an upper or lower limit of the appropriate sentence in any particular case.

46The prosecution referred to the case of Maddocks v The Queen[8] as an example of a very serious arson offence, though accepted that there were differences to your offending and circumstances.  In the case of Maddox, the accused had an appalling criminal history, including priors for arson, was on a CCO of the time of the offending, was motivated by retribution and committed the arson, it was noted, with apparent enthusiasm.

[8] [2020] VSCA 47.

47Your counsel referred to a couple of cases, including that of Gavin Hach v The Queen,[9] where the applicant pleaded guilty to one charge of arson and was sentenced to 12 months imprisonment with a five year CCO.  On the day of the offending the applicant had just been released from a mental health care facility, was told he could not return to work until he was medically cleared and was full of anger.  He went to his workplace and destroyed two trucks (the subject of the charge) by fire that he accelerated.  The trucks were valued at approximately $700,000.  Factors in favour of the applicant were his early plea of guilty, lack of priors, immediate cooperation with police and personal circumstances and the need to facilitate his rehabilitation to the maximum extent permitted.  In DPP v Lowe,[10] another case Ms Foot referred to, this court imposed a sentence of 10 months' imprisonment and a 12 month CCO for an arson where the accused set fire to a childcare facility in the context of protracted Family Law proceedings.  The damage to the building was in the vicinity of $220,000 and the personal matters on behalf of the accused included a number of health issues and a diagnosed ongoing depressive disorder. The sentences for arson can vary widely, depending on the particular circumstances of the offence and the offender. 

[9] [2018] VSCA 196.

[10] [2019] VCC 1680.

48There was no dispute between the parties in your case that a term of imprisonment is warranted, given the seriousness of the offending.  The parties agreed that a combination sentence is open in your case.  The prosecution accept this is an appropriate sentence, given your prospects of rehabilitation, limited prior criminal history, community support and your relevant state of mind at the time and the unique circumstances of your offending.

49Weighing up all matters, in my opinion, the applicable sentencing considerations are able to be met by the imposition of a combination sentence pursuant to s44 of the Sentencing Act.  As the Court of Appeal stated in Boulton's case,[11] 'Even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment if coupled with a CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of the offending directed at rehabilitative purposes’.

[11] [2014] VSCA 342.

50I consider that the relevant sentencing principles and the gravity of your offending, as I have assessed it, require that you serve further time in custody.  This period will, however, be substantially moderated because of the matters I have already referred to, including your early plea of guilty, the unusual circumstances of your offending, your more onerous period on remand and my favourable assessment as to your prospects of rehabilitation. You will then be released on a Community Corrections Order (‘CCO’) and the conditions on the order will be both punitive and restrictive but will also enable you to pursue any necessary treatment and rehabilitation.

51I had you assessed for your suitability for a CCO and you were assessed as suitable for such an order with recommended community work and treatment and rehabilitation for drug use and mental health.  You expressed remorse for your offending, stated that isolation had helped you realise the true meaning of lack of liberties and you were assessed as a low risk of general re-offending and therefore supervision was not recommended.

Sentence

52Weighing up all relevant matters, Mr Glover, I therefore impose the following sentences with conviction -

53On the charge of arson, Charge 1, you are convicted and sentenced to 11 months' imprisonment with an 18 month Community Corrections Order.

54Now I am going to go to the conditions of that order in a moment but I will first address the further offences. Charge 2, breach of bail, you will be sentenced to one month imprisonment wholly concurrent. On the charges of possess drug of dependence and possess weapon, I impose an aggregate fine of $400.

55Pursuant to s18, I declare that you have served 221 days in pre-sentence detention.

56Pursuant to s6AAA, I state that the sentence I would have imposed on you but for your plea would have been three years' imprisonment with a non-parole period of 18 months.

57In terms of the Community Correction Order, Mr Glover, I have sentenced you to 11 months' imprisonment. The time you have already served is reckoned and will leave you with the remaining period.  Once you have completed that sentence you will be released on a Community Corrections Order.  I am required to go through the various conditions of that order and also advise you as to the consequences of breaching such an order.  Do you understand?

58MR GLOVER:  Yes, Your Honour.

59HER HONOUR:  All right.  So, in terms of those conditions, there are mandatory conditions that attach to a Community Corrections Order.  You will need to report to the Frankston Justice Centre or Community Corrections Centre that is relevant in your case.  You will need to report there within two working days and no doubt - and I will give you a moment after we are done today.  You can speak to Ms Foot in relation to some of these conditions.  All right.

60MR GLOVER:  Yep.

61HER HONOUR:  You will need to make that contact.  The mandatory conditions of the order is that you must not commit any offence during the period of the Community Corrections Order, that is, 18 months from the day it commences, for which you could be imprisoned.  You must notify a Corrections officer of any change of address or employment within two clear working days after the change.  You must not leave Victoria without first getting permission to do so from a Corrections officer and you must obey all lawful directions of a Corrections Officer.

62In addition to those mandatory conditions, you must undergo assessment and treatment for your mental health as directed.  You must undergo assessment and treatment for drug and alcohol.  Additionally, you must perform 220 hours of unpaid community work and I will offset 100 hours of community work against treatment.  Do you understand the conditions of the order, Mr Glover?

63MR GLOVER:  Yes, Your Honour.

64HER HONOUR:  All right.  You must make sure that you comply with the order.  I must tell you that if you do not comply with the requirements of the order or if you commit a further offence punishable by imprisonment during the period of the order, which is 18 months from the time it commences, you are released on it, then you are likely to be breached on the order by Corrections and the matter will be brought back before me.  You will then be dealt with for breaching the order and you will exposed to the possibility that you will be re-sentenced for the original offences and may face a term of imprisonment.  Do you understand the consequences of breaching the order?

65MR GLOVER:  Yes, Your Honour.

66HER HONOUR:  All right and understanding the conditions of the order, understanding the potential consequences of breaching the order, Mr Glover, do you consent to the making of the order?

67MR GLOVER:  Yes, Your Honour.

68HER HONOUR:  All right.  Ms Malobabic - I am sorry, I am mispronouncing that, Malobabic - - -

69MS MALOBABIC:  Yes, Your Honour.

70HER HONOUR:  And Ms Foot, is there anything further that is required?  I know that we discussed the compensation order.  That is no longer before me.  One moment?

71MS MALOBABIC:  Yes, Your Honour.  I believe there are applications for disposal and the forfeiture.

72HER HONOUR:  That's right.  Thank you.  I will just locate those.  Ms Foot, can you confirm my recollection, which is they were not opposed?  Is that right?

73MS MALOBABIC:  Yes.  That's correct.

74HER HONOUR:  Thank you.  Here we go.  Thank you.  So, it is one forfeiture order and also one disposal order.  I make those orders in the terms sought.

75MS FOOT:  As Your Honour pleases.

76MS MALOBABIC:  As Your Honour pleases.

77HER HONOUR:  Anything further?  No.  All right.  Thank you.  Ms Foot, we will continue the link.  I think it is available for some time if you need it.  You will have an opportunity to speak to Mr Glover once we all exit.

78MS FOOT:  Thank you, Your Honour.

79HER HONOUR:  All right and we'll adjourn the court.  Thanks very much.