Director of Public Prosecutions v Johnstone

[2019] VCC 1565

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-19-00063

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART JOHNSTONE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	25 September 2019
DATE OF SENTENCE:	25 September 2019
CASE MAY BE CITED AS:	DPP v Johnstone
MEDIUM NEUTRAL CITATION:	[2019] VCC 1565

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr P. Stefanovic	Camerons Lawyers Pty Ltd

HIS HONOUR:

1Stuart Johnstone, you have pleaded guilty to one charge of arson.  That crime carries a maximum penalty of 15 years' imprisonment.  You are now 49 years of age.  You pleaded guilty at the earliest reasonable opportunity and when questioned by police made admissions as to your presence in the premises.

2I accept that your plea of guilty is accompanied by remorse.  Whether that is directed at the fact that the ultimate victims were totally innocent or not I am not too sure, but you do get the benefit of it.  You also get the benefit of the utilitarian aspects of that plea of guilty.

3You have no prior convictions of any description and you have no subsequent matters.  At the age of 49 you have a very good work record and it is clear from the materials that you have been other than for this particular matter a good member of the community.

4The circumstances of the offending are that in April of 2006 you had married one Karen Doldy.  The two of you were married for ten years before separating in September of 2016.  After the separation she stayed at the family home in Katandra West and you moved to Yarrawonga, closer to your work.

5You were subsequently paid out for your share in the home.  She sold the property to the victims in the matter, a Mr and Mrs Leach, for $254,000 in April 2018.  The settlement was finalised.  She did not advise you of the sale and it seems from the material it appears that you have not even spoken to each other for a number of years.

6Between April of 2018 and August of 2018 the victims prepared their house for living in when certainly Mr Leach retired at Christmas of 2018.  Some repairs had been done, furniture was moved into the house and from time to time they would sleep in the house on air mattresses.

7It is clear from their victim impact statements that this was to be their dream home in their retirement.  They had planned to renovate it and live close to family, close from both sides of the relationship. What occurred next has destroyed that effectively.

8You went to Yarrawonga but from time to time you kept in contact with locals in the Katandra West area.  I am told you have probably been back in the order of something of 40 times in that period of time.  You had friendships at the football club and with the local Country Fire Authority.

9At about noon on 25 August 2018 you went to the Katandra West football ground to watch a football match.  During that afternoon and evening you estimated that you consumed between 20 and 25 cans of beer.  During the evening hours you somehow or other made your way to the former family home.  That house was approximately 600 metres from the football club.

10It appears that you forced your way into the address by kicking open a rear laundry door.  You then made your way to the main bedroom of the house.  Once in the main bedroom you lit a fire in the room, probably using the cigarette lighter which was found on you at a later time.  The ignition point was believed to be an air mattress and/or the carpet and underlay.

11The fire spread quickly through the house.  You left the address and walked to the house of Mr Williams about ten to nine that night.  He lived two houses away from the address of the fire.  You told him that it was a bit smoky outside and that the fire alarm might go off soon.  He asked you what you had done and you said you had not done anything.

12Upon entering his house a fire alarm sounded.  You then suggested to
Mr Williams that you had been at Mr Williams' home for an hour.  He then asked you to leave and described you as being highly intoxicated.  When interviewed by police you said you had very little memory of it.  The fact of the matter is I accept that you were intoxicated and I accept that you had been to sleep before being interviewed by police and that can cause a loss of memory.

13However, you were endeavouring to get Mr Williams to give you effectively an alibi and that indicates that you were perfectly aware of what you had done and quite clearly that fire was lit deliberately.  The house was destroyed.  The cost of rebuilding it is going to be something in the order of $350,000 or so.

14Insurance covers a significant part of that but as I pointed out during the course of the plea that is not really the point.  That is the amount of damage - that is the amount that it will cost to replace the house you destroyed but you destroyed more than a building in these circumstances and as I have indicated you destroyed the dream of two people as they approach their older years.

15A Victoria Police arson chemist examined the scene and said it was probably started by a match or a cigarette lighter which would be simple common sense.  You in the early hours of 26 August were arrested at another friend's house.  You were intoxicated.  You were not interviewed until about 9 am.  You told the police you drank a large amount of beer.  You said you had a recollection of being inside the address and you recalled it being all empty 'sort of'.

16You said you remembered being in the kitchen/living area.  You did not recall being in the bedroom but you thought there was a light on at the front of the house.  So you have speaking to the police some memory of the incident.

17You told police that you had no animosity towards your former wife and indicated that you had signed the divorce papers about three months ago and it was not a bad settlement.  You told police you were not sure why you went back to the house.

18Her version of the separation is very much different to yours and clearly she would not regard it having been without acrimony.  You have indicated in the course of speaking to psychologists that you have been a jealous and controlling person in previous relationships and it seems to me that the only inference that is really open here is that you, albeit spontaneously, lit that fire as some act of animus against your former wife.

19You I accept did not know that the property had been sold and that totally innocent people were now the owners of it.  In some ways that makes the matter even worse.   Phone records placed you in the area at the time.  Again I do not need to go through what your former wife said in her statement about texts being sent to her and that you to her seemed to be keeping an eye on what she was doing and what her whereabouts were.

20I have indicated the damage done to those two people and I do not need to go into any great detail.  They have suffered severe stress and psychological counselling.  The plan to retire has had to be put off because of all the financial ramifications of this.  Mr Leach is not a well man and is going to have to somehow survive all this.  Mrs Leach has had to take over all the aspects of dealing with the insurance company and now ever since that fire they have been in a situation of stress and is as commonly the situation here it put strain on the relationship.

21The consequences of what you did for those two people is absolutely catastrophic in my view and any right thinking member of the community will just have to sit down and think, 'What would I want to happen to the person when I came home and he simply burnt down my house?'

22The offending is very serious and calls for the application of general deterrence, which is always does in these circumstances.  Specific deterrence, I find that there is probably not a great deal of need for you and the sentence that I impose will amply provide for that.

23There must also be denunciation and obviously an appropriate punishment.  In these circumstances I accept that the probabilities are high that you would not have done it unless intoxicated.  You chose to be intoxicated and you performed the act.  Intoxication in a situation such as this as any person will understand offers no excuse whatsoever and in no way, shape or form mitigates what occurred.

24It is clear to me that a custodial sentence of some significance is inevitable.  It then came down to a question as to whether that sentence should be in combination with a community corrections order or with a head sentence and a minimum term.  I make it clear that I am well aware that insofar as the combination sentences it is known as concerned that where the crime is arson that the 12 month rule in the gaol sentence is not present.

25The gaol component can be whatever as I understand it a judge determines it to be, to be then followed by a CCO.  As Mr Brown from the Crown pointed out to me this is more related to bushfires and I think that is - and the risk of them being lit again and I think that is correct.

26But in any event it is the situation where your counsel maintains that you would prefer the CCO to the minimum term and accordingly that is what I will do.  I then look to matters personal to you.  Tendered on your behalf were a number of references that speak highly of you and as I have indicated already I am sure within the community you have been a valuable member of it over a significant period of time.

27You have always effectively worked and had work available to you and you have been offered work in Warragul.  The reason that that has been offered to you at the moment as I understand it is that your parents are both still alive and aging and finding it more difficult to cope.

28I accept that for these purposes the term of imprisonment that you undergo will be undergone in the knowledge that you of an act totally of your own volition have removed yourself from their presence and will be unable to look after them.  It is also the situation with a pet and again there is not much can be said about that.

29I make it clear that the circumstances surrounding your parents do not amount to exceptional circumstances within the meaning of the law and accordingly do not give rise to the aspects of mercy that is sometimes used in such situations.

30The report of Ms Lechner goes through your history and repeats mainly what I have already said.  She diagnoses you as having a major depressive disorder and it was seen clear from the report of the mental health worker,
Ms Robertson, that that is indeed the case.

31You have an alcohol substance abuse disorder and that would be seen to be fairly self-apparent.  Neither of those disorders give rise in my view to any of the principles in Verdins and accordingly they play no part in the sentencing process.

32You went to about Year 10 in school.  You left and went to Wesley College as I understand it.  You commenced drinking in your mid-teens and it seems to have gone from there.  In support if you like of the view that I have taken as to this having arisen from albeit spontaneous animosity you did say to
Ms Lechner that you had undermined your two previous marriages and that you admitted that jealousy was an issue for you, that you were controlling and that alcohol was a factor as well.

33You went on again to say that you yourself felt no acrimony about the marriage and I am not going to go through that again.  That is not it would seem your wife's view of it.  You now from what I can gather have virtually no contact with either former partner or children that you have and seem to be estranged from all your siblings as well.  You are clearly very much on your own apart from other people who know you within the community and it is hard not to feel a relative degree of sympathy for you.

34As I have indicated the references that have been tendered speak highly of you and indeed a friend gave sworn evidence that this is out of character which is fairly evident and that otherwise you are a law abiding citizen.

35The question of the alcohol is really a matter for you to determine.  You have never it would seem offended before by reason of alcohol and you have not offended since by reason of alcohol.  I have looked at comparative cases and the matters that have been put before me and that is always a difficult exercise.

36The ones where the sentences are of a low order appear usually to be for either young people or where the principles of Verdins have been given effect to and it is my personal view that all those sentences are unduly light but that is simply a view of mine.

37Having taken all of those matters into account I then look at the objective seriousness of this matter.  I have now read the case of Darby that was provided to me by the Crown and that matters where fires are lit in these circumstances they are people who do it for reasons of general deterrence must know that a significant gaol sentence will follow.

38In these circumstances you were a member of the CFA, you know what is involved.  You know that fire fighters are going to have to attend at something like 2 o'clock in the morning and try and put out a fire like this.  I accept that the nearest house was a short distance away but fires can jump.

39I accept that there was no suggestion of any person being endangered or this would be a very different ballgame if that was the case, but the fact of the matter is albeit spontaneously and albeit on the spur of the moment you have taken it upon yourself as I say being aware of the consequence of fire to destroy a home and you are going to have to pay the price for it.

40The prospects of your rehabilitation are up to you.  I do find that in these circumstances a risk of you reoffending is probably quite low but the fact of the matter is that general deterrence has to play a part.  Men in these circumstances must realise that they cannot ever commit domestic violence which this is a form of I suppose, or whether it be of a personal nature or of a property nature in circumstances where it does not suit them.

41In saying all that I am sentencing on the basis that this was not a ruminated on pre-meditated incident but nevertheless it is a very serious one in my view.  Accordingly having heard the submissions of your counsel and taken them all into effect you will be imprisoned for a period of 18 months.

42That will be followed by if you agree - otherwise I will just give you a head sentence on top of that - if you agree that will be followed by a three year CCO.  You have been assessed for that and been found to be suitable.  That CCO will not have any work hours in it.  In these circumstances it will have supervision, treatment and rehab for alcohol and treatment and rehab for mental health.

43As you have heard me discussing with counsel the onerous aspects of that and that is something that you apparently have chosen, I make it very clear that if you are brought back before me for breaching that CCO for any form of action against that partner or any other partner you would go back to gaol again.

44If he wants to sign that, you can accompany my associate please,
Mr Stefanovic, to get this signed?

45MR STEFANOVIC:  Yes, thank you.

46HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act I say that but for the plea of guilty I would have sentenced you to be imprisoned for a period of four and a half years with a minimum term of three years. So that is the benefit of not having put those people through a trial. No other orders I have to make?

47MR BROWN:  No, Your Honour.

48MR STEFANOVIC:  No, Your Honour.

49HIS HONOUR:  Thank you, you can take him out, thank you.

50MR BROWN:  Sorry, there is two days PSD, Your Honour.

51HIS HONOUR:  There is?

52MR BROWN:  There is, yes.

53HIS HONOUR:  I direct that two days be reckoned as having been served under this sentence.

54MR STEFANOVIC:  Your Honour, before he goes might I just have a moment?

55HIS HONOUR:  No, I will clear the court and you can talk to him outside.

56MR STEFANOVIC:  If the court please.  Thank you, gentlemen.

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