Director of Public Prosecutions v Ingle
[2020] VCC 1733
•24 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02034
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID INGLE |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2020 for Plea | |
DATE OF SENTENCE: | 24 November 2020 | |
CASE MAY BE CITED AS: | DPP v Ingle | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1733 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – one charge criminal damage by fire (arson) – one charge contravene order intending to cause harm for fear or safety – related summary offence contravene conduct condition of bail – sentence indication – circumstances of family violence – impact of serious health conditions on imprisonment - circumstances of COVID-19 pandemic.
Legislation Cited: Bail Act 1977; Crimes Act 1958; Family Violence Protection Act 2008; Sentencing Act 1991.
Cases Cited:DPP v Derby (2007) 171 A Crim R 302; R v McLaughlin [2016] VSC 189, R v Verdins & Ors [2007] VSCA 102
Sentence: 535 days imprisonment followed by a 24 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Holmes | Office of Public Prosecutions |
| For the Accused | Mr B. Johnston | C Marshall & Associates |
HER HONOUR:
Introduction
1 At about 8.30 pm on 6 May 2019 the victim’s house was on fire. She was at work. Sometime after 8:30 pm she went on her dinner break and looked at her phone. On it she saw around 40 missed calls and messages from her neighbours and friends urging her to go home. When she arrived, her front door was open and she could see smoke pouring out. The street, where she had lived for many years, was full of fire trucks, police and detectives. She worried for her dog who had been inside the house. It was later revealed that her ex-partner, David Ingle, had gone to her house, while she was at work, and set fire to a car he had recently given her. The fire had spread to other vehicles nearby and to her house, causing damage to a window frame and windows.
Sentence indication
2 On 26 October 2020 I heard an application by David Ingle pursuant to s. 207 of the Criminal Procedure Act 2009 (Vic), for a sentence indication on the charges on this indictment. A pre-condition to the making of such an application is the consent of the Director of Public Prosecutions,(see CPA s.208(2)),which was given. Following that application, I indicated that, if Mr Ingle were to plead guilty to these charges I would be unlikely to impose a sentence of imprisonment that commenced immediately.
3 At the time of his application, Mr Ingle had already served a period of 531 days presentence detention (the number had risen to 538 by the time of sentence). I adopted the reasoning of Justice T. Forrest in the case of R v McLaughlin [2016] VSC 189; that the phrase: 'a sentence of imprisonment that commences immediately’ must be taken to carry with it the practical consequence that, upon sentencing, the person who has pleaded guilty will actually be imprisoned from the time of sentence and extending into the future. In that context, I indicated that if Mr Ingle were to enter pleas of guilty I would sentence him to a term of imprisonment on the basis of time served, with the addition of a Community Corrections Order.
Pleas of guilty and maximum penalties
4 Mr Ingle, after I indicated that I would not impose a further sentence of imprisonment, you pleaded guilty to one charge of arson (the maximum penalty for which is 15 years imprisonment), one charge of contravening a family violence intervention order (the maximum penalty for which is five years imprisonment) and the related summary offence of breaching a conduct condition of bail (the maximum penalty for which is three months imprisonment, or 30 penalty units.)
Circumstances of the offending
5 The Summary of Prosecution Opening for Sentence Indication was Exhibit A on the ultimate plea. On the plea, through your counsel, you accepted the truthfulness of that Plea Opening. It is attached to and forms part of these reasons. I will make a brief summary of some of parts of it here.
6 From 1991 to 1994 you were in a relationship with the victim; in 2018 you and the victim recommenced your relationship and in September you were living together in the victim’s house.
7 At that time, you owned a 1987 Corvette. It was registered in someone else’s name, but in about October 2018 you gave this car to the victim. The car, and the keys to it, were at the victim’s home at the time your offending took place.
8 In January 2019 you had separated from the victim. An intervention order was granted in the victim’s favour on 29 January 2019. That order prohibited you from committing family violence against the victim, intentionally damaging any property belonging to her, and going within 200 meters of her address. Your counsel told me that you had consented to that order being made.
9 As the result of charges that arose out of those events, you were on bail at the time this offending took place.
10 On Monday 6 May 2019 the victim left home to go to work at around 2 pm. Around 8:30 pm that evening the victim’s neighbour was outside working on his car when he heard a loud explosion. He saw you walk out from behind the victim’s garage, holding out your hands as if you’d burned them, before walking away. The neighbour called 000.
11 Inexplicably, two days later, on 8 May 2019 at 9.10 pm you called 000, saying that there was a fire at the address resulting from a car battery that caught fire; you told the 000 operator that your hands were burnt and that you needed an ambulance, though you did not give your name.
12 On 9 May 2019 you called 000 again saying that your name is David and that you had burns on your hands, that you were heading to Sunshine Hospital for treatment; the operator asked you if you burned yourself in an accident and you said 'No it was a bit more than that.' Police waited for you at Sunshine Hospital but you never arrived.
13 When the emergency services arrived on 6 May 2019 in response to the neighbour’s call they found the Corvette, which was parked about a metre away from the side of the house, on fire. Next to it was a boat and two ride-on mowers (one of which belonged to you, and as such is not included in the scope of this offending).
14 The fire burned the car, boat, mowers and then spread to the house before being put out. The damage to the house caused a window frame to ignite, a picture frame inside the house to catch fire, and heat from the fire spread up one wall, which caused a window in the upstairs area to crack.
15 In the house, investigators found a note:
'[Victim’s name omitted], I want you to have the boat, ute and Corvette. I’ll sign it over to you and I’m sorry for everything. I love you and [the victim’s dog] so much xx. Dave...'
16 The note included a phone number and an invitation to call you. You had left the note at the victim’s house about two weeks before the offending.
Arrest and interview
17 You were arrested on 14 May 2019. A forensic medical officer was asked to examine you; she identified various injuries that appeared to be burns: you had swollen lips, blistering on your tongue, blistering on your right palm and burns to your fingers on your right hand and possible burns on both knees. You were taken to Sunshine Hospital for treatment.
18 The next day you participated in a record of interview with police; you gave a mixture of denials and admissions.
Prior criminal history
19 You have admitted a relevant and troubling criminal history. Most relevantly, there have been a number of breaches of family violence orders in your home state of Queensland. The theme in these prior convictions, that is continued in this case, is your disregard for court orders made in the context of your violence in your relationships with women.
Subsequent criminal history
20 You have no subsequent convictions. I understand that you had an outstanding matter that arose out of the original separation from the victim in February 2019. It was unresolved at the time of the sentence indication and plea, but has now resolved; I take this into account, only insofar as it is context for the presence of the intervention order and the breach of bail condition. The resolution of that case has had some procedural implications for this case, which I will return to.
Pre-sentence detention
At the time of the sentence indication you had served 531 days of presentence detention, from the date of your arrest on 14 May 2019. On the day of sentence, you have now served 538 days.
Nature and gravity of the offending
21 On the plea, counsel for the prosecution helpfully drew my attention to the construction of s. 197(4) of the Crimes Act 1958. Section 197 reads:
(1) A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum)[1].
[1] The higher maximum penalty of 15 years for criminal damage by fire is applicable virtue of ss 197(6) and (7).
(4) For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if—
(a) his purpose or one of his purposes is to destroy or damage property; or
(b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.
22 It is the prosecution case, and the position agreed by your counsel, that the damage to the car fell under s.197(4)(a), in that your purpose was to destroy that piece of property, but the damage to the boat, mower and house properly falls under s.197(4)(b), in that you either knew or believed that your conduct in setting fire to the car was more likely than not to result in the destruction of, or damage to, those pieces of property.
23 I am conscious of the need to sentence you on that basis, that is, that your purpose was to destroy the Corvette, and that you believed (or knew) that this act would ‘more likely than not’ also result in destruction of, or damage to, the boat, the mower and house.
24 I am obliged to assess the gravity of the offending in the context of the whole range of offences of this type. You burned a car that once belonged to you. The fire spread beyond your initial intention, but in a way that you knew or believed would be likely. You went to the property at a time you knew the victim would be absent. Without more, I would regard this particular version of criminal damage by arson to be on the low to medium end of the scale. But there is more.
25 It is highly relevant that at the time of your offending you had been expressly prohibited by law from attending the house and damaging any property belonging to the victim. You were meant to be nowhere near her house. You consented to that order being made on 29 January 2019 yet you, less than four months later, did precisely what the order prohibited you from doing. Moreover, you were on bail at the time, and one of the conditions of your bail you had undertaken was to comply with the intervention order. You had made two separate promises not to do those things and you broke them both.
26 All this makes your offending much more serious.
27 On its surface your offending was directed at a car and flowed onto the nearby items. But it must also be seen as an aggressive act against the victim. You, apparently, originally gave her the car out of affection, and wrote her a note to that effect about two weeks prior to going to her home and destroying your gift to her. You later told Police: ‘if I can’t have my Corvette, no one can’. Going back to the victim’s home and setting fire to the car was an unacceptable act, not only against the property, but against her.
28 In these circumstances your offending must be regarded as a relatively grievous example of offences of its type.
Impact on victims
29 A victim impact statement, authored by the victim, was tendered on the plea. Pursuant to s.8L(5) and (6) of the Sentencing Act 1991, I received the whole of the statement and I rely on those parts of the statement that are admissible.
30 In her statement the victim sets out the effect the fire at her home has had on her. Among other things, she described how she had worked hard to pay off her beautiful home, and that she experienced your actions as a violation of everything she had built up. She had lived over 20 years in her neighbourhood and was proud of the quiet and peaceful life she shared there with her neighbours. She describes feeling embarrassed about what happened, and supposes (incorrectly by the way) that somehow what you did reflects poorly on her. She felt very alarmed for her dog who was trapped inside the house (and helpfully rescued by neighbours). She still experiences stress and sleepless nights.
31 The victim is perfectly entitled to feel safe in her home. On behalf of the community I make it clear to you that it is completely unacceptable for you to behave in such a terrifying way, particularly in circumstances where you have agreed to stay away from the victim’s home.
Personal circumstances
32 You were born in Quilpy, in Western Queensland. You are one of four children, but both your brothers have passed away: one from a heart attack aged 45 years, the other in a car accident aged 54. Your father was a cattle and sheep farmer and passed away in 2013.
33 You completed schooling up to Year 11 at Millmerran Secondary School.
34 You have been employed for most of your adult life. You have worked mostly in farming in various roles on cattle and pig farms.
35 In 1991 you were in a relationship with the victim in this case. You separated amicably. From 1996 you were married to Debbie; and together you bought a lease on a farm that you then worked profitably for the next 20 years. You farmed grain, cotton and beef, but in 2011 the area was devastated by floods and you were unable to service the loans. In 2014 the marriage broke down; you were able to later reflect that this was due to 'taking everything she did for me for granted.'
36 Your relationship with the victim recommenced in September 2018, following some internet contact. You moved to Melbourne to live with her in her home.
37 You are now 54 years old, although you were 52 at the time of the offending. You are single and without children. You are of Aboriginal heritage through your paternal grandmother. You are close with your elderly mother Shirley, who lives in Toowoomba in Queensland and I understand you speak to her from prison every day.
Matters in mitigation
Health
38 You now have a number of serious medical conditions, the sum of which leave you in generally precarious health. A bundle of medical materials generated by your treatment while in custody was tendered on the plea and marked as Exhibit 2. You suffer from hypertrophic obstructive cardiomyopathy, ischaemic heart disease, type II diabetes, and hypertension.
39 You had your first heart attack in July 2015, suffered a stroke in March 2016 and a second heart attack on 22 December 2018, shortly before this offending. You had stents implanted at that time. In prison, your heart condition has continued to trouble you. You have been transported to hospital from prison on a number of occasions due to recurring heart problems. Your brother died of a heart attack in his 40s, something that the practitioners treating you consider significant.
40 In a letter dated 21 February 2019, an associate professor of cardiology (unnamed) records your history of treatment for cardiomyopathy. Another letter dated 13 February 2020 is written from the cardiology clinic at St Vincent’s Hospital where you underwent treatment during your period of incarceration. The letter notes your family history of early death from heart problems, and concludes that inserting an ‘Implantable Cardioverter Defibrillator’ or ICD (a device that detects abnormal heart rhythm and delivers an electric shock to restore a normal heartbeat) is clinically warranted.
41 You have not taken up your option to have an ICD implanted during your time on remand because it would cause you to be re-transferred to Port Phillip Prison pending admission to hospital; you would have to be in quarantine at each stage of that movement.
42 It is clear from these materials that your heart condition is serious and life-threatening. I accept that this has made this period of imprisonment significantly more stressful for you. It was submitted that public health restrictions have meant the loss of personal visits and the ability to participate in programs, and for you it has carried the additional burden of the anxiety of being in an environment you do not control, when for two periods during your incarceration COVID-19 transmission rose sharply in Victoria and your existing health problems made you more vulnerable.
43 At 54 you are experiencing imprisonment for the first time, and I accept that this experience will have been shocking for you. You are in your middle age, in fragile health and you have now been exposed for an extended period to the somewhat brutal environment of prison custody.
44 It was submitted that you have experienced some degree of extra curial punishment as a result of the burn injuries you inflicted on yourself during the offending. Those burns persisted to the extent that you were deemed not fit for interview by the time you were arrested on 14 May 2019, some eight days after the offending. Those burns were essentially self-inflicted and, to the degree that I am obliged to, I take them into account.
45 In terms of your mental health, it was submitted that you have been diagnosed with anxiety and depression and are currently prescribed Sertraline. You are under the treatment of psychologist Dr Emily Mann while in custody, though I note that no particular ‘Verdins’ submission was made, but it is encouraging that you are engaging in treatment.
Plea of guilty
46 You were arrested on 14 May 2019. A committal proceeded on 9 October 2019. You did not cross-examine witnesses but rather ran a factual dispute centred on ownership of the car. In any event, you were committed to stand trial that day. It is important that witnesses were spared cross-examination at that stage.
47 Your trial was listed for 16 November 2020. However, your case was determined suitable for the emergency case management process.
48 Guilty pleas in high impact crimes spare victims the ordeal of having to give evidence; they may also assist them to put their experiences behind them and receive vindication and support from their family and friends.
49 In all the circumstances I accept that your plea is attended by considerable utilitarian value, particularly in the context of a court system that is dealing with a considerable trial backlog. Your plea indicates your willingness to facilitate the course of justice, and an aspect of remorse resides in it.
Delay
50 You have been on remand for 538 days since your arrest in 2019. Your case has taken nearly 18 months to resolve, and I accept that it would have weighed heavily upon you in that period.
Prospects of rehabilitation
51 You continue to enjoy the support of your mother Shirley and the support of your ex-wife in Queensland. You have a strong work history. These matters are relevant to your prospects of rehabilitation. You have engaged with a treating psychologist during your time in custody. This appears to be the first time you have addressed the sources of your offending. Your barrister submitted that there have been long gaps between your offending in the past, which does indicate a capacity to live lawfully. Further, although you are probably not well enough now to engage in employment, in the past you have demonstrated that you are capable of engaging in activities that are profitable. It was submitted, and I accept, that your committal into custody has been a very big event in your life. You have now spent nearly 18 months in a state far from your family and friends and during an international health crisis. All this combines to make imprisonment a very strong deterrent to your offending in future.
52 The Victim Impact Statement and the Community Corrections Assessment Report suggest that your offending may have a misuse of alcohol attached to it. The CCO conditions that I will impose will seek to investigate that proposition. With or without alcohol, it is clear that you have in the past been completely unable to deal with emotional states that arise when you have conflict with a partner. In the past, it appears that you have resolved those states by blaming your partner and, one way or the other, inflicting harm on her. Mr Ingle you need to understand this now: the fault is yours. You need to appreciate that inflicting violence in any form is never an acceptable part of resolving those problems. There is nothing that justifies that conduct. The next part of your sentence requires you to learn that, learn it properly and your future liberty depends upon that.
Relevant sentencing principles
53 Specific and general deterrence are the most important sentencing considerations in cases that involve violence against a domestic partner.
54 As the Court (Vincent, Neave and Kellam JJA) said in DPP v Derby (2007) 171 A Crim R 302 at [2]:
‘The employment of violence, almost invariably by disappointed males, whether directed against the person or property of a former or desired partner to express anger or as a form of retribution in consequence of a relationship failure or perceived rejection simply cannot be tolerated. Insofar as they are able to do so, the Courts must endeavour to deter those who are motivated to act in this way.’
55 I must also impose just punishment for what you did and consider the protection of the community. This sentence must also denounce your behaviour emphatically.
56 I must sentence you in the hope that you will be deterred from ever behaving in any way even remotely like this again. Moreover, I must sentence you in a way that makes it broadly understood in the community that anyone behaving in this way will be dealt with firmly and, it is hoped, be deterred from doing something similar.
Regard to current sentencing practices
57 I am also obliged to have regard to current sentencing practices and I have done so. There is no case perfectly alike to yours. Your case has its own unique and finely balanced combination of prior criminal history, recent criminal history and current health problems.
Other submissions on sentence
58 On the continuation of the plea on 27 October 2020, the Prosecution submission on sentence was that this case warranted the imposition of a head sentence with a non-parole period; prosecuting counsel sensibly conceded that the lengthy period of presentence detention served in this case, just short of 18 months, may have appropriately fallen within that structure in any event.
59 Perhaps there is little practical difference between the sentence I am about to impose and the non-parole sentence the prosecution argued for, other than the certainty that this sentence brings to you, and the related consequence that the case was able to resolve without a trial.
60 Both Prosecution and Defence agreed there was no legal impediment to my imposing an aggregate sentence in all the circumstances and that is what I propose to do.
61 I note that I was originally going to sentence in this case on 30 October 2020, however during the days prior, the court was advised that you were in fact on remand for an outstanding matter. On 30 October 2020 I granted an application to defer this sentence until that status could be addressed. When that case did not resolve as expected, your case was again adjourned to allow that to take place. I understand that you were sentenced on 20 November 2020 in the Magistrates’ Court. The other matter, which has now been determined, absorbed some of the extra presentence detention you accrued and this explains the date and PSD calculation in this case.
Disposition
62 Mr Ingle, normally I would ask you to stand at this point, but given that you are appearing on screen, you can remain seated. On the charges of arson, breaching an intervention order, and the summary offence breaching a conduct condition of bail, I sentence you to a period of imprisonment of 538 days in custody. Further, on all charges I impose a Community Corrections Order of 24 months’ duration.
63 Mr Ingle, this is an aggregate sentence. Because each of the charges are connected closely in time and character and arise out of the same acts by you, I am not giving you a sentence on each individual charge, but bundling all the charges together and giving you one sentence on everything.
PSD
64 I declare, pursuant to s.18, that 538 days have already been served on sentence.
6 AAA reduction
65 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 42 months' imprisonment, with a non-parole period of 26 months. I am now going to explain to you the conditions of your Community Corrections Order. Mr Ingle, at the end of this, I am going to ask you if you consent to the making of an order in these terms, so I would be grateful if you would listen carefully to what I am about to explain to you.
CCO
66You will first be subject to the ‘standard conditions’ of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 24 month period. If you do, you will be brought back to court before me and resentenced for these offences; absent very powerful reasons, you should expect that would involve your immediate imprisonment.
67You must report to the Melbourne Justice Service Centre at 50 Franklin Street, Melbourne within two days of today by telephone. Sorry, within two days of your release, just in case that does not happen exactly today.
68You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.
69It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all the instructions and directions of a Community Corrections officer. You are not able to leave the State of Victoria without their prior permission.
Special conditions:
70You will be required to complete programs to further address your alcohol use.
71You must report for supervision with your case manage on a fortnightly basis.
72You must submit to mental health assessment and treatment.
73You must participate in programs to reduce reoffending.
74I require you to perform 100 hours of unpaid community work over the term of this order, but pursuant to s.48CA of the Sentencing Act I direct that time spent in treatment and rehabilitation programs be credited towards those hours.
75Pursuant to s.48G of the Sentencing Act, I attach an exclusion condition to this order. If you could just pay close attention to this now. You must not go within 200 metres of the victim’s home. Failure to comply with this condition will breach the order. If you breach the order you will be brought back before me and dealt with, and I would resentence you on all the charges and the obvious conclusion in those circumstances would be your immediate incarceration and lots more of it.
76I also require you to participate in judicial monitoring. That means you have to come back to court in two months to report on how your order is unfolding. I will set a date for the judicial monitoring before we go any further. I will set this for judicial monitoring at 9.30 in the morning on 25 January 2021. Mr Ingle, by that stage I receive a report from the Corrections people and they tell me how you are going on the order. Is that clear?
77OFFENDER: Yes.
78HER HONOUR: All right. Now, do you wish to speak to Mr Johnston before I ask you whether you consent to the making of the order, or do you understand what is being asked of you?
79OFFENDER: No, I understand it completely, so I'm fine with it.
80HER HONOUR: All right. Counsel, are there any other orders that I am required to make at this point?
81MS HOLMES: No other orders sought from prosecution, Your Honour.
82MR JOHNSTON: As Your Honour pleases.
83HER HONOUR: Is there anything else before we rise?
84HER HONOUR: In that case, we'll adjourn.
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