Director of Public Prosecutions v Hach

[2018] VCC 357

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-01417

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAVIN HACH

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2018
CASE MAY BE CITED AS:	DPP v Hach
MEDIUM NEUTRAL CITATION:	[2018] VCC 357

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Offender	Mr N. Hutton

HER HONOUR: 

1Gavin Hach, you have pleaded guilty before me to one charge of arson.  These are the circumstances of your offending.

2Late on the night of Sunday 5 March 2017, you went to your employer's premises.  Your employer at the time was JJ Richards Waste Management and you worked at the Wodonga depot which was located in an industrial area of Wodonga.

3At that time, you were extremely angry with your immediate boss, Garry Vallarta, who was the regional manager and in charge of the Wodonga depot.  I will go into the reasons for that anger later.

4At about midnight, you collected a plastic ten litre petrol container from the caravan where you lived.  You drove to the depot.  You parked your car in a location well away from the security cameras at the depot.  You then found your way through the fence of the depot and walked over to four large trucks parked in a line in the depot.

5Using a rock, you broke a window on two trucks and then poured petrol through the cabin of each of these two trucks.  You lit two fires, one in each front cabin, and then you left.  Both trucks were subsequently totally destroyed by fire and the fire also took hold of the two adjoining trucks.  In all, the fire which you lit destroyed four trucks belonging to your employer.

6
I note at this point that the offence to which I am to sentence you today involves the intentional destruction of only two trucks.  There is no evidence that you intended or foresaw that all four trucks would be destroyed.  So no charges have been laid in respect of those other two trucks and I sentence you only in relation to damage to the two trucks which you intentionally lit.

7There is an ongoing dispute between yourself and the company as to the value of those trucks and I do not need to make a precise estimate of the damage which you caused in sentencing you today. It is sufficient to say that you caused many thousands of dollars of damage to these two trucks as they totally consumed by the fire.  The damage was agreed on your plea to be not less than $700,000 dollars in totally.

8It turned out to be very easy for the police to identify you as being the arsonist. 

9Firstly, your car had been spotted near the depot by police on patrol that night.  It appears that the police patrol was inspecting your car whilst you were simultaneously inside the depot lighting the fire, but of course the police who took down the details of your car did not know what you were doing at the time.

10Secondly, the day before you did this you had very angry conversation with Mr Vallarta.  The subject matter of your anger was that you had been away from sick leave.  You had not realised that you would require a certificate of capacity before being allowed back to work. Mr Vallarta told you that in a phone conversation on 5 March. 

11In that phone conversation you had, on being told that information, directly threatened Mr Vallarta and his family.  Mr Vallarta had been so concerned about that threat that he had advised the police and an intervention order had been taken out against you.

12Further, it was apparent to Mr Wethers, a friend and neighbour of yours, from your conversation with him shortly afterwards, that you had been involved in starting this fire.

13Finally, petrol had spilled onto your clothing and those clothes were found ultimately at the location where you lived.

14You were arrested by police on the day after the fire and interviewed. 
You made full admissions during that interview and you described to police how you had set the trucks on fire.

15Although you were very cooperative during that interview, there is a very concerning aspect to it. It is this:  during that record of interview, you showed no remorse.  You told police that you had done it because you wanted to get back at Mr Vallarta and wanted to cost him money as you hoped that he may be sacked from his job as a result of the fire which you had lit. You specifically said that you did not care about the significant amount of damage you had caused because you wanted to affect your employer's business.

16The maximum penalty for the crime of arson is 15 years' imprisonment.  It is a very serious crime.  Although luckily the fire which you lit did not spread to any building and there was minimal risk to life because the factory was located in a light industrial estate and no one was working at the depot or at adjoining businesses at that time of the night, the lighting of a fire in the circumstances as I have described them, is still a very dangerous thing to do. 

17The principle of general deterrence is particularly significant in sentencing you for this offence.  I have a responsibility to dissuade others who may consider retaliating in this way and by using such a dangerous medium of fire in the way that you did.

18Even though no victim impact statement was filed on the plea, clearly the owner of the depot suffered a very significant financial loss as a result of your actions.  There appears to be almost no prospect of you repaying this damage, even though I will make a compensation order as part of the orders I will make today.

19Your counsel told me something of your personal circumstances. 
You were thirty two years old at the time of committing the offence. 
Your counsel described your childhood as being troubled and violent at the hands of your mother. 

20You moved frequently as a child and you have not seen your mother since you were a teenager.  You do not know if she even still alive.  You left home at the age of 11 with some periods of homelessness until you resided in a boys home until the age of 16 years.  After that time, you went to live with your uncle. 
Your uncle is still in your life and is also still very supportive of you. 

21You have had a very sporadic educational history, although you were able to complete a carpentry apprenticeship and work as a carpenter for about five years before committing this offence.

22I also note that you have a significant history of depressive illness and this condition appears to have been a factor in the lead up to you committing this offence.  You had been suffering from depression for many years. 

23Over the past year, just before this offence, your mental health had declined very significantly.  It had declined to a point where you had attempted suicide on 11 February last year, a month before your offending.  You had been admitted to a mental health facility as an involuntary patient but stayed there only a week and thereafter were living in a caravan at a property rented by your friend Mr Wethers.

24At the time of the incident, you had been working at the Wodonga depot for about 12 months as a relief garbage truck driver.  As I understand it, you had been employed full time and your role was to drive a garbage truck to fill in when other staff were not available.

25It appears, as I have said, that you did not like this employment and particularly that you had a fraught relationship with your employer, Mr Vallarta. 
You had been off work for about a month prior to this incident because of your mental health problems and the suicide attempt and you had expected to be able to go back to work in the week following your telephone conversation with Mr Vallarta.

26You were upset at being told that you needed a medical certificate, presumably because this would delay your return to employment and you expected that you should have been notified about that.

27You had previously been living with Sarah Tippett and you have several children of that relationship.  She supports you emotionally and you are still very close to her but she is not prepared to continue living you until your mental condition improves.

28Apart from her and your previous partner, it appears that you have had very little contact with family until very recently.

29You were first before me for a plea hearing, Mr Hach, last November. 
The plea hearing was adjourned in order that I could obtain a Forensicare report and you were remanded in custody. 

30You have now been in custody for a significant period of time which has been calculated at 144 days, up to today.  The thrust of the plea, both last November and at the further plea before me in this circuit was that the amount of time that you have already served in prison, together with an onerous community corrections order, would be a sufficient disposition given all of the matters which were put before me in the plea.

31It is very significant, Mr Hach, that you come before with no prior convictions.  Despite your long history of substance abuse and despite the significant psychiatric problems that you have had in the past, you have never before committed any offences.  That is a very significant matter in sentencing you today. 

32Your period of imprisonment which has occurred as result of being placed on remand for this offence is the first time you have had any contact with the criminal law, let alone the first time that you have had any contact with any prison at all.

33Your counsel submitted to me that at the time of the offending, you were suffering from depression, borderline personality disorder and alcohol use disorder. He submitted that those conditions impacted on your decision making in such a way that that your moral culpability should be moderated in the sentencing exercise as your mental health condition compromised your ability to make a proper judgment at the time of the hearing.

34So a formal submission was made that the Verdins principles 1, 3, 5 and 6 applied in sentencing you.  This was a matter to which I gave careful consideration in November when you were before me and also at the recent continuation of the plea hearing in this circuit.

35At the time the matter was first before me, I expressed doubt as to whether there was any evidence of this connection.  As well as expressing my misgivings about that argument which has been put to me, I was also concerned that the medical reports which I had received on the plea hearing pointed up some significant issues which did not support the general thrust of the plea made on your behalf.  I will briefly describe those reports.

36I had been presented with a report from Jo Dempsey, a case manager from Eastman Health which was dated 27 June 2017.  That report indicated that you had been a patient of Chandler House Adult Mental Clinic since 3 April last year.

37Concerningly, the report described you as initially reluctant to engage in support or treatment, believing that services of this kind had not helped you in the past.  However, it is true that the report went on to say that your engagement improved over time and that you had been recently more forthcoming.

38It also indicated that you had expressed interest in referral to Spectrum, which is a state specialist treatment service for people with a diagnosis of borderline personality disorder. 

39The second report which I had last November was a report of the Albury Hospital of your treatment in February of 2017 after that suicide attempt. 
That attempt was your sixth suicide attempt and the report expressed your insight to be poor and your judgment to be poor.

40Thus, both reports can be described as not being encouraging as to the risk of your future offending or as to your prospects of your rehabilitation.

41My principal concern however last November was a report from Patrick Newton dated 25 July 2017. 

42You saw Mr Newton once on 10 July, for two and half hours, some four months after you committed these offences.  Mr Newton reported that you told him that you used alcohol as a method of coping but that you did not believe that your alcohol consumption was a problem and did not wish to reduce your intake. You also told him that you had been using morphine without a prescription for three or four months until mid-2017. 

43You described your victim to Mr Newton in offensive terms, calling him a narcissistic liar.  Most worryingly, at that interview four months after the offending, you did not express remorse and you maintained that your offending behaviour was justified. You told Mr Newton that you would have burnt the factory as well if you had more time.  You also told him that you had withdrawn from most social engagement.

44Newton described you as “holding grudges” and having limited ability to redeploy your attention during intense emotional periods.  He further described you as reluctant to acknowledge that the effect of alcohol on your relationships and demonstrating little insight into the risk associated with your use of morphine or your reasons for taking drugs.

45He did indicate that you were not a pyromaniac but it was clear from his report that you required significant monitoring and supervision in order to maintain any sort of treatment program with the aim of increasing your insight into your substance use and assisting you to develop strategies to treat your interpersonal and substance related problem.

46The report of Mr Newton combined with those two other reports which were made available to me last November appeared to me to give very little support to the suggestion your counsel made that you could be adequately managed in the community. 
The only option available to me at that time appeared to be a significant prison term. 

47It was because of these very concerning aspects of the plea material that
I adjourned the plea to obtain a further report.  I have now received the Forensicare report which was prepared on 16 February 2018 whilst you were in remand.

48In that report, you were diagnosed in that report as having borderline personality disorder manifesting in chronic emotional dysregulation, impulsivity, poor sense of self, self-sabotaging and risk-taking behaviours, frequent crises and self-harming suicidal behaviour.

49The writer of that report, however, indicated very encouragingly that you have now acknowledged your guilt and have significant remorse for your actions. 
He says that you have told him that having time in prison has given you an opportunity to think and reflect on your actions.  This is a very positive development.

50He reported also that are you now motivated to seek support and therapy for your personality disorder and that you plan to continue to be on
anti-depressants and abstain from illegal substances.  You also plan to return to work full-time so that you are not dependent on your ex-partner or your family. 

51It was suggested in the Forensicare report that you will benefit from specific psychotherapy for this disorder that can be provided in the community or otherwise in custody. 

52Mr Hach, as I have pointed out, the offending which you have committed is serious offending.  It is made more serious by the fact that for a significant time afterwards, you were not remorseful and expressed the desire to do more harm to your victim.

53In committing this very dangerous act, the principle of specific deterrence looms large even though you have now indicated that you were motivated to seek support and have had the time to reflect on your actions. 

54I was also told at the time of the further plea in this circuit that you have now found stable accommodation with your uncle in Selby, just outside Melbourne and well away from the Wodonga area.  Your partner and children live at this address.  You have also the chance at stable employment. 

55With strict supervision, you have the opportunity to put this past offending behind you and address your psychiatric problems. 

56I come back now to the Verdins argument put to me in November and repeated at the plea hearing in February of this year. 

57I take the view that there is no firm evidence in any of the reports that your mental health was a significant factor in your offending.  I do accept, however, that you were not operating as a mentally healthy person in the time preceding your offending, having been recuperating from the matters which caused you to make the suicide attempt in February.

58I agree with your counsel’s submission, which was also accepted by the prosecutor, that your past clear lack of remorse and continuing aggression towards your victim may be viewed as consistent with the mental condition from which you suffer.

59The seriousness of the condition from which you suffered, prior to this offending, is evident in the fact that you have made six suicide attempts in the past and as I have said, your victim blaming behaviour is also consistent with this description of your disorder which I have received in the Forensicare report.

60As to the other Verdins factors, I do accept that imprisonment will weigh more heavily on you because of your mental condition, although the Forensicare report does not provide unequivocal support for this proposition.  In saying that, I note that you will have access to support services in prison as you will in the community and the report describes you as “settling in well” so far to the prison environment.

61I accept that there is a possibility that an extended term of imprisonment will exacerbate your condition although this begs the question of what an extended term of imprisonment may be.

62The most significant sentencing issue that I have today is my real concern that given your history, you would not be able to comply with the requirements of a community corrections order.  This is particularly of concern given the following passage from the Forensicare report and I quote it.

"He reports that his report is stable and he is coping well in prison.  He states that the strict regimented routine in prison works well for him and he keeps out of trouble as he is not expected to interact with others unless needed.  He finds interpersonal interactions most challenging.  He also states that he gets food, shelter, stability and support and he can return to his cell when he needs some space and mental clarity.  He also states that he manage his anger well in prison and return to his cell safe space gives him time to calm down unlike in the community where he struggles to cope with his emotions".

63I have reproduced that quotation because my concern is that it demonstrates that you will find it very difficult to comply with the requirements of a community corrections order whilst living in the community.  The alternative disposition to that suggested by your counsel would be to sentence you to a term of imprisonment with a shorter than usual non-parole period.  This would assist in your rehabilitation by providing you with the structure of parole upon your release. 

64I have found it very difficult, Mr Hach, to come to a conclusion as to whether that term of imprisonment and a community corrections order are sufficient punishment and whether they are a viable alternative for your rehabilitation given the serious nature of your offending and also given all of the matters that I have so far referred to in these reasons.

65Your counsel reminded me that if I was in doubt as to the two options, then in accordance with the principle of parsimony that I should take the lesser option.  That course is consistent with my obligation to impose a sentence of imprisonment only if it is the only appropriate option and to impose a sentence no more severe than is required to meet all of the overall sentencing purpose of which I have identified.  I accept my obligation in this regard.

66Despite the misgivings which I have outlined in these sentencing remarks, I therefore sought a report as to whether you are suitable for a community corrections order.  It was fortunate that the officer who prepared the report was able to sit in on the adjourned plea in this circuit and therefore gained an understanding of the particular issues facing you.

67I have now received that report, Mr Hach, and I note that that report assesses you as suitable for a community corrections order.  I also note that the assessment also provides that you are at high risk of reoffending.

68The report writer suggested that there should be strict conditions placed upon your order and in particular, assessment and treatment for drug and alcohol abuse as well as mental health conditions and a program condition to address offending behaviours.

69Despite all the concerns that I have previously indicated, I have decided to give you the opportunity to demonstrate that are you are able to manage in the community.

70I do so because you are a first time offender.

71I also do so because I am persuaded that you have good prospects of rehabilitation if the necessary supports are in place.  You have learned a great deal whilst you have been on remand in prison.  You are still a relatively young man. You do not appear to have had access to effective treatment in the past.

72You have commenced some small steps towards rehabilitation. 
You have undertaken courses in prison addressing alcohol, anger management and controlling emotions.  You have been alcohol free in prison and plan to remain so on your release. 

73You have continued to have the support of your partner and uncle who have visited you in prison.  Perhaps this offending, propelling you into the courts and into prison for the very first time in your life, will provide the wakeup call required to take your obligations to the community seriously.

74Mr Hach, what I will do is to sentence you to a term of imprisonment for
12 months. At the conclusion of that 12 months, then the community corrections order will commence.  I am hopeful that the supervision that you receive during the community corrections order will assist you to put your life on track and so effect your rehabilitation.

75If you do not comply with the terms of the community corrections order, you will return to this court and you should expect that you will be resentenced to a significant term of imprisonment.

76The community corrections order will be of lengthy duration in order to allow for the maximum assistance to you and will also provide some comfort on the issue of reoffending. 

77Mr Hach, can you stand up please?

78Gavin Hach, on the charge of arson you are convicted and sentenced to be imprisonment for 12 months and then to undertake a community corrections order for a period of five years. 

79I will not set a non-parole period on the prison sentence but I will order that the time you have spent in custody so far which I note at a 144 days be reckoned as time already served under this sentence.  And as I have just said, as soon as you finish that sentence, the community corrections order will commence.

80I will now describe the conditions of the community corrections order. 

81Firstly, there are some program conditions which apply to all community corrections order.  You will not be able to leave the state without the permission of the secretary during the period of the community corrections order. 

82You must advise the secretary of any change in your address during that time and you must take orders from and comply with any orders made by the secretary.

83As well as the normal community corrections order conditions, I will also order that you perform 500 hours of community work over that five years.  Now I will declare that 200 hours of that work can be counted in treatment hours but that leaves a significant amount, Mr Hach, of work hours which I require you to perform over that five years.

84You have expressed some concern about work hours as conflicting with your aim of getting employment.  Mr Hach, it will be a matter for you if you agree to undertake this community corrections order to liaise with community corrections in order that your paid work can be accommodated.

85All I want to make clear today is that I do expect that that community work will be done and if that means that you have less leisure time or less time to be employed in paid work, then this is a consequence that you will have to bear. 

86I will also make orders for you to undertake treatment and rehabilitation for drug testing and for alcohol abuse and I will order supervision.  I will order that you participate in programs and courses that are consistent with achieving the purpose of treatment and rehabilitation and participate in programs or course that address factors relating to your offending behaviour.

87Now, Mr Hach, I can only make a community corrections order if you agree to undertake it.  If you do not agree to undertake it, then I will need to resentence you. 

88I will have the document taken to you now.  Mr Hutton, have you had the opportunity to speak to Mr Hach about community corrections order?

89MR HUTTON:  I have explained what they are, Your Honour, yes.  But not on this occasion, on the last occasion. 

90HER HONOUR:  All right, I think my associate has provide with a copy of this document.

91MR HUTTON:  I have it, thank you.

92HER HONOUR:  Mr Hach, given that Mr Hutton is on the video, you will not be able to have a private conversation with him now.  What I will do, once I have left the bench is have the court cleared so that you can talk to him over the video link and go through any concerns that you might have.  If you wish me to, I can reconvene if there any issues that you want further explained or you want Mr Hutton to raise in relation to the community corrections order.

93All right, so ‑ ‑ ‑

94MR HUTTON:  Thank you, Your Honour.

95HER HONOUR:  Are you happy with that, Mr Hutton?

96MR HUTTON:  Yes, Your Honour, thank you.

97HER HONOUR:  All right.  That being the case, I will now ask the document to be provided to Mr Hach for him to sign.  Now Mr Hach, you have signed that document and so have I and so the order will take effect as soon as you are released from prison.

98I will also make a forensic sample order and I need to tell you that if you do not consent to the taking of that order, the sample can be taken by force by a police officer. 

99I will indicate that if you had not pleaded guilty to this charge, the sentence which you would have received would have been a term of imprisonment for five years with a non-parole period of three years.

100MR HUTTON:  As Your Honour pleases.

101HER HONOUR:  Any other matters?

102MR HUTTON:  No, Your Honour.

103MR MOORE:  464?

104HER HONOUR:  Forensic sample?

105MR MOORE:  No, sorry, yes.

106HER HONOUR:  Yes, no other matters, all right.  Well now Mr Hach, what I am going to do is I am going to leave the Bench.  I will make a formal order that the prisoner be removed but if the prisoner officers could leave Mr Hach where he is for a minute so that he can talk to his counsel over the video link.  If there are any difficulties as I have said, I will come back in relation to this matter.

107MR HUTTON:  Yes, Your Honour.

108HER HONOUR:  Mr Hach, this is the first time you have been before the courts.  It is very worrying that you have come before the courts in relation to such a significant crime.  I am giving you the opportunity after you have served a period of imprisonment to take advantage of putting your life back in order by means of the community corrections order. 

109If you do not take advantage of it, you will come back before me and you should expect to be sentenced to a significant term of imprisonment.  Do you understand that?  All right, thank you.

110Yes, thank you, I will leave the bench.

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