Director of Public Prosecutions v Humphrey

[2018] VCC 1213

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01089

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT HUMPHREY

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Bendigo and Melbourne
DATE OF HEARING:	12 June 2018 (Bendigo); 7 August 2018 (Melbourne)
DATE OF SENTENCE:	7 August 2018
CASE MAY BE CITED AS:	DPP v Humphrey
MEDIUM NEUTRAL CITATION:	[2018] VCC 1213

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Moore (Bendigo) Mr Martin (for sentence)	Office of Public Prosecutions
For the Accused	Mr G. Davis	LD Legal Services Pty Ltd

HIS HONOUR:

1       Robert Humphrey, you have pleaded guilty to two counts of intentionally or recklessly causing a bushfire.  The maximum penalty for this offence is 15 years’ imprisonment.

2       On 14 January and 15 January 2016 you were with Jacob Whitehead, Brandon Poole and two other young men in a motor vehicle that travelled from Maryborough to Avoca and down to Ballarat, and then returned along the Sunraysia Highway through Avoca to Bealiba.  During the Ballarat leg of the journey, two roadside bushfires were lit.  The first was recorded at Lexton at 23.22 on 14 January, and the second at Waubra some 14 minutes later. On the journey back from Ballarat, a further roadside fire was lit at Lamplough.  It was reported at 03.48 on 15 January 2016.  Fortunately, each fire was extinguished following a prompt response by the CFA.

3       The site of the first fire was the grass verge on the eastern side of the dual single lane highway.  An area approximately 23 metres by 19 was burnt.  The fire had entered a paddock near its northern end but the damage was limited due to the lack of vegetation along the fence line.  The second fire was near the edge of a roadside drain. It did not cause significant damage.  The third fire was located on the west side of the Sunraysia Highway near Woodstock Road.  The fire was started on top of an embankment and it spread to cover an area of approximately 178 meters by 25 metres along the verge, extending from near the road edge to the paddock fence.  Fire had not entered the paddock significantly.

4       Your behaviour in being party to the lighting of these three fires is covered by charge 1 on the indictment. It is a rolled up charge.

5       On 17 January 2016, you were again driving around in the company of Poole and Whitehead. You were seated in the tray of Whitehead’s ute and Poole was in the passenger seat.  At about 12.10 am Whitehead drove along the Avoca  - Bealiba Road when he stopped near a haystack on a farm at Archdale. Poole and Whitehead got out of the car and Whitehead lit the haystack with a cigarette lighter. The three of you then left the area. The haystack was totally destroyed. The fire spread from the haystack and travelled towards a farmhouse situated approximately 50 meters away. The fire burnt to within 15 metres of the house before CFA units extinguished it. An elderly woman was asleep inside the premises and only became aware of the fire when she was alerted by the CFA. The haystack was valued at $6,000. Your involvement in the lighting of this fire explains the second charge on the indictment.

6       I have read the impact statement from the victim of charge 2. He says that he has moved on from the destruction of his hay. Understandably, his main concern is the danger that arose to his mother who was asleep in the house. As he said – “her home was close to being burnt down while she slept.”

7       Mr Humphrey, this is serious offending. Charge 1 relates to the lighting of fires in open, dry country, late at night. The prospect of considerable damage is obvious.  It was fortuitous that the CFA attended so quickly and limited the damage. The second charge is even more serious, exposing, as it did, an elderly woman to grave danger. General deterrence is a central sentencing consideration in this case. A strong message must be sent to other members of the community who may be tempted to behave in the way that you did. Just punishment and denunciation are also relevant sentencing principles.  

8       You have a highly relevant prior conviction. On 15 December 2014, you appeared in the County Court on a charge of intentionally cause a bushfire. You were placed on a community corrections order (CCO), with conditions that included a condition to comply with a Justice Plan. I have had the opportunity of reading His Honour, Judge Punshon’s sentencing remarks in relation to that offending.  There were powerful reasons for extending leniency in that case including your secondary role, your intellectual disability and the fact that you were easily led by others. This is something that I will come back to a little later in these remarks.

9       Mr Humphrey, normally when a person commits a serious offence whilst on a CCO they can expect a court will deal with them severely. This is particularly the case when the offending is of a similar nature. A jail sentence is the usual outcome.  However, your counsel submitted that for a variety of reasons, a community corrections order with a Justice Plan would be the appropriate sentence. I agree with that submission and I will now explain why.   

10      First, and most importantly, you have cooperated with the police in the investigation of this matter. As the prosecutor said in his opening remarks, the detection of arson is often very difficult. You assisted the investigation by making a supplementary statement detailing the offending and the persons involved. You also provided an undertaking to give evidence, if required, against your co-offenders. These are very powerful factors that operate to mitigate sentence.

11      Secondly, you entered a plea of guilty. I am satisfied that you are genuinely remorseful. Your plea of guilty has also saved the victims from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial.

12      Thirdly, I am satisfied that you were not one of the firelighters. Poole and Whitehead were the principal offenders and the firelighters. You went along with what the other two did but you did not light any fires. You were a follower in this offending, an encourager but not an initiator. This was also the case in your previous offending. It is a sad fact that you have a history of being easily led by your friends. Your intellectual disability appears to be a factor in this regard. In various reports from Disability Services, and other sources, it is noted that you are a vulnerable young man, prone to the influence of others. It is most important that you learn to resist the pressure applied by others to support them in their criminal behaviour. In this regard, it is pleasing to hear that you have stopped all contact with your co-offenders and have not been involved in any further trouble. You live with your partner and your family and they provide strong support. You work with your father and your cousin. You have a young child who was born after the current offending. Your responsibilities as a father provide a strong incentive for you to stay away from troublemakers and remain offence free.

13      Finally, you are still a relatively young man. Even though this offending is serious, rehabilitation remains a relevant sentencing consideration. As I have already said, you have not been involved in any further offending for 2 and ½ years and that is a strong indication that you are now focused on your rehabilitation. 

14      You have been assessed by the Office of Corrections and by Disability Services. You have been found to be suitable for a community corrections order with a Justice Plan attached. In determining the length of the order, I do take account of the fact that you have been on fairly strict bail since March 2016.   Will you please stand.

15      You will be convicted on both charges and released on a community corrections order for a period of 24 months.  The order will have the following conditions.

·    That you be under supervision;

·    That you undertake 200 hours of community work;

·    That you undergo assessment and treatment including testing for alcohol abuse or dependency;

·    That you undergo offender behaviour programs as directed;

·    That you comply with the conditions of the Justice Plan; and

·    That you appear back before me at a judicial monitoring hearing at 10.00 am on 7 December 2018.

I order that treatment hours are not to be counted as a contribution to the unpaid community work.   You can be seated there, Mr Humphrey.  Mr Martin or Mr Davis, is there anything else?

MR MARTIN:  A forensic sample order was sought, Your Honour.

HIS HONOUR:  Have you got instructions on that, Mr Davis?

MR DAVIS:  No, Your Honour.  May I approach the dock?

HIS HONOUR:  Yes, certainly.  Mr Martin, just while Mr Davis is getting those instructions, I do not have a draft form of the order.  Have you?

MR MARTIN:  I do not have it to hand, Your Honour, but I can e-lodge it afterwards.

HIS HONOUR:  It is just that I will have to require him to attend at a particular police station.

MR MARTIN:  Yes, Your Honour.  I believe it would be Maryborough police station.

HIS HONOUR:  Maryborough police station.  Yes, now Mr Davis, do you have instructions?

MR DAVIS:  I have instructions to consent, Your Honour, and I have explained to him the need to go to Maryborough in four and a half weeks' time.  Not next week, so - - -

HIS HONOUR: Thank you. Mr Humphrey, if you would please just stand again. I will also make an order that you provide a forensic sample, pursuant to s.464ZF of the Crimes Act.  And that means you will have to attend the Maryborough police station within the next four weeks for a Buccal swab.  That involves a cotton tip inside the mouth, taking a sample of your DNA that will be kept on the database, to assist the police in the detection of any future crime.  All right?  I am obliged to explain to you that if you do not cooperate with the authorities in the taking of that forensic sample, reasonable force can be used to obtain the sample and the sample would not be a Buccal swab, but it could be a blood sample.

So it is most important that you attend the Maryborough police station in the next 28 days for that procedure to take place.  And I make this order because of the seriousness of the offending, the prior conviction that you have, the order is in the public interest and the order is consented to. Mr Humphrey, I will now allow you to come out of the dock and take a seat behind Mr Davis, because we will print up the forms and get you to sign them.  And once you have signed them, you will be free to go.  Now the other thing is that you need to attend Bendigo Community Corrections within two working days from today. 

ACCUSED:  I have got an appointment on Thursday at 2 o'clock.

HIS HONOUR:  Thursday?

ACCUSED:  Yeah.

HIS HONOUR:  All right. If you have got an appointment, just make sure you attend that appointment. Now, I have got a copy of the order here, which we will get you to sign. Mr Humphrey, you understand what has happened?

ACCUSED:  Yeah.

HIS HONOUR: Remember you have got to come back before me on 7 December, and that is so I can make sure that everything is on track.  That you are doing all the things that you are required to do, under the community corrections order.

ACCUSED:  Yeah.

HIS HONOUR:  If you comply with the order and stay out of trouble you have got nothing to worry about.  So I want to get a good report when you come back on 7 December.  All right?

ACCUSED:  Okay.

HIS HONOUR:  Yes.  Good.  Thank you.

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