Director of Public Prosecutions v Harris

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION
CR 18-01254

DIRECTOR OF PUBLIC PROSECUTIONS

CHRISTOPHER BESWICK

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Wodonga
DATE OF SENTENCE:	21 August 2019
CASE MAY BE CITED AS:	DPP v Harris
MEDIUM NEUTRAL CITATION:	[2019] VCC 1315

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr M. Vaccaro

HIS HONOUR:

Christopher Beswick, you have pleaded guilty to one count of arson, committed on

29 November 2017. The maximum penalty for this offence is 15 years' imprisonment.
You have admitted prior convictions.
The prosecution tendered a prosecution opening on plea as Exhibit A. A summary of your offending is as follows.
You had been the tenant of a property at 13 McEachern Court, Wodonga since

June 2014. The property was a three-bedroom brick veneer residential home. The property is owned by the Department of Health and Human Services. Originally, you were tenanted to live there with your son Brody Beswick. He was removed as a tenant in June 2015.
At the time the property was destroyed by fire, the house was unoccupied. You were living in Lavington. You had moved from the property approximately 12 weeks before it was burned down.
Brody Beswick had moved away from the Wodonga area but had returned in recent times. You had commenced working together but your relationship became strained when he left you to complete a job on your own. In the couple of days before your offending, Brody and his girlfriend had stayed at the McEachern Court address. On the night the property was set alight, Brody was to stay at Tallangatta. Brody’s pet dog was locked in the bathroom, but the house was otherwise empty. The dog was put outside before you set fire to the house
At about 10:43pm, the house was set alight. Police and CFA attended and eventually brought the fire under control. The investigators concluded that petrol or a similar accelerant was spread through three areas of the house, together with groups of sparklers which assisted the ignition of combustible materials already present, such as carpets and couches.
The house was damaged beyond repair. DHHS assessed the cost of demolition, clean up and rebuild at about $270,000.
DHHS noted that there had been ongoing issues and conflict between you and DHHS for unpaid rent and your maintenance of the property to a liveable standard. In 2015, you were served with a breach notice for cleanliness and damages. In July 2017, a dispute was raised. When the property was inspected there was hard rubbish and general waste through the front and rear yards, the grass was uncut and the entire place dirty. It was inadequately furnished and in the view of the DHHS team leader conducting the inspection, uninhabited; or at least no one permanently living at the address.
At the time of the fire, you owed $1,645.91 for maintenance costs.
You made a statement to police on 30 November 2017, denying any involvement.

You later recanted that statement. In December 2017 you were interviewed by police in a record of interview. You made further denials and told further lies. Since that time, you explained that you were drug affected at the time of offending and throughout the period you were interviewed by the police.
The matter was to proceed as a trial in this circuit until you changed your plea on the first day of the trial listing. Although your plea came at a late time, it still deserves recognition for its utilitarian benefit in saving time, expense, witnesses and resources.
The offence of arson and this instance of it, is a serious offence. The maximum penalty reflects that. You burned down a home, a residence – it was public housing the use of which is now denied to anyone else. Your motive for committing this crime is not clear. Nevertheless, the depositions show that your actions were planned and then executed over a couple of hours. Your moral culpability for this offending is high.
Criminal damage by arson, taking place in a suburban setting, poses a danger to the houses and people living close and around that property. It must also be met by a considerable number of police and fire resources to ensure the safety of others and to contain the risk. Your actions must be met with the principles of deterrence, denunciation and protection of the community. The dangers to the community posed by arson and the need to take proper account of the protection of the community was considered (albeit in the context of arson causing bushfires and death) in the case of Sokaluc, which was referred to in submissions.
I turn now to consider your personal circumstances.
You are 39 years old and were born in December 1979. On the plea, your counsel tendered 13 pages of hand written notes prepared by you, which purport to outline your childhood and teen years.
The notes you provided outline that you were principally raised by your mother.

The man you thought was your biological father was in fact your adopted father.

Your childhood was characterised by sustained neglect and abuse. You were the subject of considerable physical violence and mental abuse at the hands of your mother. You described her, for the whole of your childhood and teen years as dealing in drugs and committing other criminal acts, mixing in criminal circles and perpetrating acts of cruelty and violence on you and others. You say that you witnessed terrible, gory and violent deaths (suicide and homicide) and their aftermath. If this was not enough, your mother forced you in young years to engage in drug dealing on her behalf. Your mother was imprisoned on occasions, and for stabbing someone.
The notes state that by the time you were 18 you were a drug user with severe mental health issues and you had spent time in psychiatric wards for drug induced psychosis.
By your late teens, you had formed a relationship with your former partner Melanie. You and Melanie have four sons; including your elder son Brody, who I have already mentioned.
In an effort to escape your mother’s influence, you moved to Tasmania at aged 18 for three years. You played football for Glenorchy Football Club when you lived in Tasmania. As I will make mention, local football has remained a passion of yours and something to which you have willingly committed your time and effort.
Over the years, you have worked in a variety of jobs but you told the psychologist Leanne Norris that your preference is working on the land. You previously worked as a share farmer on a dairy farm and also as a horse breaker.
You have prior convictions in Victoria and New South Wales. It was explained that a conviction in 2004 for burglary in the Ballarat County Court was actually an appeal after you and friends broke into a minigolf centre. In 2011 you were placed on a

12 month bond for stalking, intimidation and property damage after you threatened a man who had bashed one of your sons. Your other convictions are for driving matters and are not relevant to this consideration.
Your relationship with Melanie was marked with many difficulties. You separated from her four years ago and shortly after, commenced a relationship with your current partner, Justine Petrusinski. This current relationship was described by your partner in her evidence before me as 'on-again/off-again.' The off-again periods coincided with your relapse back into drug taking. Overall, you have described your relationship with Ms Petrusinski as having a very positive influence on your life. You state that she has helped you to cease your involvement in drug use and drug dealing. Moreover, it appears that your mental health has been more stable in the last eight to nine months.
In evidence before me, Ms Petrusinski stated that you undergo weekly urinalysis testing. She has four children from her previous marriage. It is necessary for you to undertake this testing to keep her former partner satisfied that you are not a negative influence over their children.
Ms Petrusinski stated, and it is repeated in the psychological report, that your priority is to provide a more positive role model for your own sons and to try and prevent them from falling into the lifestyle and life experiences in which you grew up. You currently have the care of your third son Eli, who was present in court for the plea hearing. You are concerned for his welfare when you are in custody.
It is apparent from the prosecution opening that as at the end of 2017, you had had a distant and fractured relationship with your son Brody over the course of some years. You are both making efforts to repair the relationship. Brody has had his own difficulties with drugs in the past but is now, with his partner, expecting their first child. Another son Jordan already has a baby, and he speaks proudly of your role as a caring grandfather.
In an effort to address your mental health issues, you have been engaged with a psychiatrist in Brisbane, Dr Varghese. These sessions are conducted by video link. You are currently prescribed mirtazapine for depression. I was not provided with a report from Dr Varghese, who, as your treating psychiatrist, is reluctant to provide a report. Nevertheless, I consider these to be a genuine effort by you to gain insight into your past and to move forward through life in a more positive, structured and pro social manner.
I received into evidence 10 references – from your partner, from two of your sons, from other family members and also from members of the Wodonga Saints Football Club. You are well regarded by your other family members and you have considerable support from Amanda and Robert Carter. Moreover, your commitment to the football club and to undertaking voluntary work in coaching and administration shows that you are a willing and enthusiastic contributor to your (until recently) local community’s sporting endeavours.
In relatively recent times, Ms Petrusinski took over her father’s cleaning business in Bendigo. When I remanded you in custody, you had just moved to Bendigo. Together, you hope that the business will provide enough money for you to be able to return to the land again as a share farmer. Ms Petrusinski worries that she will not be able to maintain the business once you commence your prison term.
Mr Marshall, who appeared on your behalf, submits that the following matters should be used to mitigate the sentence I impose upon you:
·The plea of guilty, notwithstanding that it was made late, has considerable utilitarian benefit;
·Your efforts to engage with Dr Varghese show your desire to gain insight into your past life in the hope of addressing your mental health issues and moving forward positively in the future;
·You have the support of a positive relationship with Justine Petrusinski and you have a good relationship with her children;
·you have a determination to keep your sons from the troubles and experience you experienced through your childhood;
·You are a contributor and valued member of your local sporting club. This is a sign that you are able to think beyond yourself and your immediate family and give back to the community in which you lived for many years; and
·You have extended family support as demonstrated by the presence of Amanda and Robert Carter.
Mr Marshall conceded, and you acknowledged to me, that you must serve a period of imprisonment for your offending. Ultimately however Mr Marshall submitted that I should sentence you to a combination period of imprisonment with a community corrections order upon your release.
Mr Moore, who prosecuted the matter in behalf of the Director outlined the structure by which a community corrections order could be imposed. Pursuant to

ss.44(1) and (2) of the Sentencing Act, the general rule regarding the length of imprisonment and community corrections order combinations does not apply to arson offences. The sentencing judge is free to order a combination sentence of a community corrections order and imprisonment regardless of the length of the term of imprisonment (that is, it is not required that a term of imprisonment of under one year be imposed). Mr Moore referred to an OPP memorandum which provided information about the availability of combination sentences for offences of arson, and to the case of Tannous which states that the availability of the extended combination sentence ought be brought to sentencing judge's attention. It also addresses the availability of a non-parole period to be set in addition to a CCO.
Although Mr Moore brought the availability of an extended combination sentence to my attention, the Crown submits that I should not proceed by way of such a sentence, but that I should impose a head sentence with a non-parole period. Essentially,

Mr Moore submits that the offending is too serious to proceed by any other means.
You were assessed to determine your suitability for a community corrections order. The report concludes that you are suitable to undertake such an order. The report also states that you are presently assessed as a high risk of reoffending based on your general history, your drug use and lack of employment at the time of your offending.
After reviewing all of the material, I have concluded that you are taking steps towards your rehabilitation. It seems to me that you have a number of positive supports in place, and that Ms Petrusinski takes a realistic and no-nonsense approach to her relationship with you. I consider it of significance that you place such a priority in trying to avert your four sons from the cycle of drug use and criminal offending that has afflicted your life. Beyond that, you have as I have mentioned, other supports in your life.
For these reasons, I have decided that at the end of a period of imprisonment, to impose a community corrections order. The combination of this sentence of imprisonment and the CCO will give you certainty to enable you to keep planning your life into the future. Moreover, the CCO will give you structure and further support once you are released from prison.
I have reviewed a number of the sentences imposed in the County Court and appeals to the Court of Appeal in respect to sentences for arson. Before passing sentence, I make the following two brief observations:
·Whilst I may, and probably ought, to have regard to previous sentences in order to inform myself as to what the current sentencing practice is, I must be careful to ensure that I tailor a sentence appropriate to the interests of justice in this case. By that, I mean that I must consider the relevant sentencing principles, the objective gravity of your offending, your moral culpability and take into account the mitigating factors and then come to a conclusion in your case and not be unduly swayed by what are the judges have done in other cases.
·Second, the availability of an extended combination sentence was contemplated by Parliament as being appropriate sentencing disposition in the right case. When I have regard to that, and to the use to be made of CCOs contemplated by the Court of Appeal in Boulton; and when I consider the steps you have taken towards your rehabilitation, then this seems the right case for such a disposition.
Now, Mr Beswick, you have previously provided your consent to a CCO. The report of Robert Parkinson says that you gave verbal consent to a CCO. Do you still give that consent?
OFFENDER: Yes.
HIS HONOUR: Thank you.
On the charge of arson, you are convicted and sentenced to 16 months' imprisonment. I declare the pre-sentence detention of two days, reckoned as already served excluding today. Thereafter, you are sentenced to undertake a community corrections order for a period of 18 months.
In addition to the usual conditions, I propose to impose the following special conditions:
·First, that during the life of the order, you undertake assessment for and treatment as directed for drug abuse.
·Secondly, that you submit to assessment for and treatment for mental health issues.
·Third, you undertake any offender behaviour programs as directed.
·Fourth, that you submit to supervision.
Mr Beswick, first of all, do you understand the special conditions that intend to impose?
OFFENDER: Yes.
HIS HONOUR: Drugs, mental health, offender reduction program and supervision. That is in addition to the usual conditions. The usual conditions are that you must not commit any offence punishable by imprisonment during the life of the order. You must not leave the State of Victoria without either the specific or general permission of the Office of Corrections but of course, if you return to the Albury Wodonga area, you can get a dispensation so that you can move between Albury and Wodonga. Third, you must receive visits from the Office of Corrections. Fourth, you must attend when the Office of Corrections say that you must attend their office and fifth, you must also obey any lawful directions given by the Office of Corrections for the purpose of ensuring compliance with the order.
Do you understand those general conditions?
OFFENDER: Yes.
HIS HONOUR: Do you also understand that if you breach the order, either by committing a further offence or by non-compliance with the terms of the order, you will be brought back before me, you will be resentenced on the original offence, arson, which will mean more gaol time more than likely, and secondly you will be dealt with for breaching the community corrections order and that could lead to a term pf imprisonment also.
In those circumstances, do I have your consent to draw up the order?
OFFENDER: Yes.
HIS HONOUR: Thank you.
Section 6AAA declaration, but for the plea of guilty, I would have imposed a sentence of four years with three years to serve.
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[2019] VCC 1315

21 August 2019