Director of Public Prosecutions v Hutchinson
[2023] VCC 1338
•12 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-01458
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE HARLOW |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 August 2022 | |
CASE MAY BE CITED AS: | DPP v Harlow | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1338 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Moore | |
| For the Accused | Ms L. Andrews |
HIS HONOUR:
1 Luke Harlow, you have pleaded guilty to one charge of criminal damage by fire. That crime carries a maximum penalty of 15 years imprisonment. You are now 27 years of age. You pleaded guilty at a reasonably early opportunity. Whether that is indicative of remorse or not, I am not sure, but I will give you the benefit of the doubt. You must also, of course, get the utilitarian benefit of that plea of guilty. In these times of the decision of Worboyes, that utilitarian benefit must be observable.
2 You do have a significant criminal history. You have been gaoled previously. Indeed, between the time of this offending and this day, you have done a six‑month sentence for other matters and you also completed a CCO. I take those matters very much into account. Your criminal history is disturbing but for reasons I will explain in a moment, it may be understandable.
3 A summary of the Crown opening is that you ended up being the resident of a unit in Kingsford Street in Moe owned by the Department of Health and Human Services. Various neighbours lived around you made various observations over a period of time. But essentially what occurred was that you had been effectively evicted from the premises. You were clearly stripping the premises - if I could put it that way - or you and others were, of metal locks and door handles and things like that. Your vehicle was seen at the unit about 15 minutes after the fire started as I understand it. Basically, what occurred was that whilst property was being removed from that area at around about midnight on that evening of 5 April 2020, the unit caught fire.
4 By the time firefighters arrived, the unit was completely engulfed. They were suspicious of the fire and could smell petrol and there was an oily film across the floor. It was also noticed by the fire officers that there was hardly any furniture or belongings within the unit. On 6 April, in the morning, police attended. A fire investigator noticed that the house had effectively been stripped and the front bedroom was considered the room of fire origin. It was decided that the fire was probably assisted by the presence of flammable liquid and that was in the absence of any other obvious accidental means.
5 In any event, what subsequently occurred you were seen, as I understand, in a vehicle leaving that area not long before the fire occurred. Later on, after you had been interviewed and denied the charges, a former partner of yours made a statement to police in which she said that you were her ex-partner; that she was in a relationship with you until May 2020; that she was in a relationship with you at the time of the fire; that you had brought the scrap metal - ripped anything out of the place to sell and brought it to her house.
6 She said on the night of the fire, you and a male known as Harley, and there is also another female involved in all of this, were going backwards and forwards between the address. She said that you and Harley turned up pretty late and you apparently told her that you and Harley had set the unit on fire. You said you did that by covering the place with fuel and then threw a fireball through the bedroom window as you were driving off. Whether that is just an intellectual disability transforming this into some sort of Al Capone escapade, I do not know. I would be very surprised if that is the reality of how it occurred. But the fact of the matter is I am satisfied clearly because of your plea, beyond reasonable doubt that even if you were not the actual initiator of the fire you were certainly acting in concert with either of the others.
7 I point out that Harley, as he is referred to, was interviewed and not charged. I do not know what has happened with the other female who had been involved. My concern is that a person of your very limited intellect may well tend to confabulate and the like. I was concerned about that from the outset. However, I have no doubt that you were criminally involved in the fire and, therefore, must be punished for it. Obviously, in this situation, there is no victim impact statement.
8 The offending has to be regarded as serious, as arson almost always is. It was an attached dwelling. It was not as if it was separate. Of course, in the normal course of events, for general and specific deterrence (indistinct words) denunciation appropriate punishment. For reasons that will become obvious very soon, I think all the principles of Verdins and all the principles of Muldrock apply in your particular situation. At the end of the day, you have the intelligent equation which places you in the lowest one per cent of the population. I think that speaks for itself.
9 The normal - if I can use that expression - sentence for arson of this sort is one of active custody. You have been in active custody before. But it is not until more recent times that the level of your intellectual disabilities have become apparent. You have now had a statement of intellectual disability. There is the Community Corrections Order that you went through last year had a justice plan attached to it and I have that justice plan before me which, obviously, I have read.
10 You were raised in Drouin by your mother and had a difficult childhood. Your stepfather was verbally and physically abusive towards you and your other family. You left home at the age of 15. You were unstable for the next 10 years. You were transient and stayed with friends, lived with grandparents, lived in boarding houses and the like. You did meet your biological father at the age of 18 and that effectively came to nothing.
11 You went to three different primary schools and you attended Drouin Secondary College where you received integration assistance. You apparently completed Year 9 but left school. You were diagnosed with ADHD and prescribed Ritalin. Not surprisingly, later on in life, around about the age of 17, you began using methamphetamine and had a habit by the age of 19. You have other drug use. You have been described as having anxiety and depression. You have been given various drugs over the years, including anti‑psychotics and the like and you remain under the care of Dr O'Donoghue in High Street in Bunyip and for the last year or so you have been compliant with your prescribed medication. You underwent in your recent CCO a complex treatment episode of drug counselling as a condition of that CCO and I accept that you have achieved and maintained abstinence from the use of methamphetamines and smoking cannabis since that time. You have now been out of custody for about a year or so. More than that. As I understand it, you have not reoffended.
12 Yours is a sad situation. I accept that a further term of imprisonment will achieve no useful value. The difficulty that you are going to face and you probably do not fully understand what I am saying to you is that if you keep offending, keep doing things of this nature, at some stage, the need for community protection will totally outweigh all the other sentencing factors and you will end up with a very long sentence.
13 The prospects of your rehabilitation are problematic. The risk of you re‑offending if you start using drugs again will be high. If you do not use drugs, it will be low. It is to be hoped that by placing you on a CCO, which I have had you assessed for, it will give you sufficient assistance and the justice plan and giving you even more assistance than that. Accordingly, in all these circumstances, I do not think there is really any sensible sentencing option other than to place you on a - if you agree - a three-year Community Correction Order. It will be with conviction. The conditions will be that mental health of - supervision, I assume is there - supervision, programs to reduce re‑offending and you must comply with the justice plan. If you agree with that, you will sign that and we can finish with it. If you would not mind going down to the dock. Thank you, Ms Andrews.
14 (Community-based order signed and acknowledged.)
15 HIS HONOUR: Look, Mr Harlow, you've signed that and you've agreed to it. What you have got to understand is that you are running out of options. All right. At some stage, if you continue to offend at this level and you understand, burning a unit down is a big one. You offend at that sort of level, some judge sitting here with one of these on - he won't have actually. Have one of these one, is going to give you a serious whack. All right. You follow that? Don't worry about your six months in the lot. People who burn houses down usually get a few years. You understand all that? I'm sure Ms Andrews explained it to you. You've got to pull your head in or you'll spend a lot of time in gaol, my friend. All right. All right. Thank you for that.
16 (At this stage, mention was made to another matter.)
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