Director of Public Prosecutions v Larson
[2024] VCC 360
•25 March 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 23-00391
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT LARSON |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 15 March 2024 | |
DATE OF SENTENCE: | 25 March 2024 | |
CASE MAY BE CITED AS: | DPP v Larson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 360 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Arson – Related Summary Offence of Breach of Parole.
Legislation Cited: Crimes Act 1958, ss 97(1), (6); Corrections Act 1986, s 78A; Sentencing Act 1991, ss 6AAA, 11, 16(3B), 16(3BA).
Cases Cited:Roberts v The Queen (2012) 226 A Crim R 452; [2012] VSCA 313.
Sentence: Three years’ imprisonment with a two-year non-parole period for arson and convicted and discharged for related summary offence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr H. Lewis | Docherty Legal |
HIS HONOUR:
Introduction
1Mr Larson, you have pleaded guilty to an indictment[1] containing a single charge of arson,[2] which carries a maximum penalty of 15 years’ imprisonment.
[1] Indictment N11862708.1.
[2] Pursuant to ss 197(1) and (6) of the Crimes Act 1958 (Vic).
2You have also consented to this court hearing and pleaded guilty to the related summary offence of breach a prescribed condition of parole by breaking the law.[3] The maximum penalty for that offence is three months’ imprisonment.[4]
[3] Pursuant to s 78A of the Corrections Act 1986 (Vic).
[4] A fine of up to 30 penalty units can also be imposed, including in addition to any term of imprisonment.
3You were 56 years of age when you committed these offences in late August of 2022. You are now 58, having been born in March 1966.
4On 1 December 1983, you were sentenced to life imprisonment for a murder you committed as a 17-year-old.[5] On 21 February 1991, you were granted a non-parole period of 12 years. You were later released on parole on three separate occasions, initially in 1995 and most recently on 29 May 2017. You were on that parole at the time you committed the offences for which you now fall to be sentenced.
[5] At the same time, a sentence of nine years with a minimum of six years was imposed for an offence of armed robbery, to be served concurrently with the life sentence.
Circumstances of the offending
5The circumstances of your current offending are set out in the typed prosecution opening[6] and were briefly discussed at the plea hearing. For present purposes, the following brief summary will suffice.
[6] Exhibit A.
6For some years leading up to late August 2022, you lived in a unit in Burrowes Street, Golden Square. You had a neighbour named Shane Bracken and his then partner, Katrina Hynes, regularly stayed overnight at his unit. She was aware of previous problems or disputes that you had with Mr Bracken. On one occasion, she saw you shining a torch through Mr Bracken’s window and on another occasion you told her that she 'could do better'.
7At the relevant time, Ms Hynes lived with a male friend, Leslie Ermel, in an old weatherboard house at 14 Maple Street, Golden Square, approximately 500 metres from your unit. That house was owned by a man named William Wilkinson.
8Prior to you engaging in this offending, Ms Hynes had seen you drive past that house whilst she and Mr Ermel were sitting on the front veranda.
9At approximately 12.37 am on 29 August 2022, you drove your white Holden Commodore station wagon from your unit towards Maple Street and then parked it beside a Mazda vehicle. A man named Dale Simmons became suspicious when he saw you standing next to that Mazda and so he kept you under observation from the back of his house until, a short time later, he saw you drive away on the wrong side of the road.
10At 12.46 am, you returned to your home and parked your vehicle.
11At 1.12 am, you returned to your vehicle and again drove towards Maple Street.
12At 1.22 am, you parked outside 12 Maple Street and walked towards no.14.
13After entering that property, you used natural firelighters to set fire to the wood below a window at the front of the weatherboard house.
14Your conduct as just described forms the basis for the offence of arson alleged in Charge 1 on the indictment, and the commission of that offence is the subject of Summary Charge 3, breach of parole by breaking the law.
15At the relevant time, Mr Simmons was observing from his backyard and saw flames coming from the house. As he approached, he saw a fire about 1.5 feet wide and 1 foot high on the front veranda area under a window. He could see an orange flame and coals forming. He immediately used a bucket of water to extinguish the flames. At no stage did anyone come out of the house to investigate what was occurring.
16After returning home and talking to his partner, Mr Simmons saw you drive your vehicle towards 14 Maple Street and park it next to the Mazda. You then drove away briefly, before again driving back to the same location.
17At that point, Mr Simmons saw you stumble out of your car and return to the area of the fire damage. As you did so, you were swaying and unable to walk in a straight line. He then saw and heard you using a lighter near the damaged window. He promptly called Triple 0 and reported the matter to police.
18At the relevant time, the only person inside the house was Mr Ermel. He remained asleep and only woke when police arrived at approximately 1.30 am.
19The first of the police officers who attended saw you lying on the front lawn of the property and formed the view that you were heavily intoxicated. After being arrested, you fell asleep on the ground. Due to your apparent level of intoxication, police arranged for you to be transported to a local hospital in an ambulance.
20On inspecting the scene, police located a blue lighter in the vicinity of where you had been arrested, the later analysis of which strongly implicated you.
21Police also observed burn marks leading from the concrete veranda to the weatherboards underneath the front window where they located a partly burnt pack of a natural type of firelighter which you had brought to the scene for the purpose of lighting a fire.
22Fortunately, the extent of the damage caused to the house by the fire was fairly limited as is clear from the photographs taken by police on that night.[7]
[7] Exhibit B on the Plea (Deposition pages 64-70, photos 1-13).
Interview
23Later on 29 August 2022, you were interviewed at the Bendigo police station, at which time you told police the following, inter alia:
·You had been living in the Burrowes Street unit for approximately three years;
·You owned a white Commodore vehicle;
·You smoked cigarettes and used a disposable lighter which you may have had on you earlier that day;
·You knew of Maple Street but did not have any friends or family living in that area;
·You had ended up parking your vehicle in Maple Street around dusk because it was playing up and then would not start. You then walked home. Later in the evening, you returned to the vehicle and made an unsuccessful attempt to re-start it. You then returned home on foot. As far as you were aware, your vehicle remained where you left it after it had broken down;
·But for those movements, you had remained at your unit that evening;
·When police showed you a photograph of the house and property at 14 Maple Street, you told them that it did not look familiar and that you did not know who the house belonged to;
·You denied attending the property and denied lighting any fire there; and
·You also denied being drunk that evening and went so far as to claim that you had not drunk alcohol for a number of years.
Victim impact
24Neither the owner of the house damaged by the fire nor the eyewitness have made a victim impact statement.
25However, the tenant Mr Ermel has.[8]
[8] Exhibit D on the Plea.
26That statement was declared on 9 March 2023,[9] and makes clear the significant adverse emotional impact that this arson offence has had on him. He remains perplexed that someone who he did not know would do such a thing while he was inside. He feels traumatised, violated, hypervigilant and angry. He has had difficulty sleeping and has resorted to alcohol to try and cope.
[9] It appears to have been made at that early stage for the purposes of a sentence indication hearing conducted by Judge Trapnell on 22 June 2023. The sentence indication which His Honour gave for charges of arson and reckless conduct endanger life was not accepted by Mr Larson.
Guilty plea
27I note that this matter resolved on 14 March 2024, when you accepted a sentence indication I had given earlier that day.[10]
[10] See footnote 19 below for the details and context of that sentence indication.
28Whilst your plea is not to be viewed as having been entered at the earliest available opportunity, it ought still attract a relatively significant sentencing discount. It must be recognised that this matter resolved in circumstances where the prosecution chose not to pursue additional charges of reckless conduct endanger life and attempted arson. By pleading guilty as and when you did, you saved the community from the cost and time of a trial and spared the victims, in particular Mr Ermel, from the ordeal of giving evidence. Accordingly, you are entitled to a commensurate sentencing discount.
No evidence of Remorse
29At the plea hearing, your counsel did not seek to rely on remorse as a mitigating factor in this case. That was understandable as I can discern no evidence of any remorse on your part. When interviewed, you denied lighting the fire or even being in the vicinity at the relevant time. Whilst you pleaded guilty, there are sound pragmatic reasons for you having done so given the strong prosecution case and the negotiated withdrawal of additional charges, including the most serious charge of reckless conduct endanger life.
Pre-sentence detention
30Immediately after being interviewed on 29 August 2022, you were charged and remanded in custody. However, only one day pre-sentence detention can be declared for today’s sentence as the Adult Parole Board revoked your parole for the life sentence on 30 August 2022 and so, from that date, you have been serving your life sentence whilst also being held on remand for the current matter.
Prior criminal history
31On any view, Mr Larson, you have a very relevant criminal history.[11]
[11] See Criminal Record dated 5 March 2024 and Police Summary for the circumstances of his offending on 29 July 2009 (Exhibit C on the Plea, page 2.7) for which he was sentenced on appeal to the County Court on 10 November 2011.
32On each occasion that you have been released on parole, you have breached it and then been returned to custody, by order of the Adult Parole Board, to serve the balance of the life sentence you received in 1983.
33So, but for the murder, all of your other offences seem to have been committed while you were subject to release on parole.
34Those offences include engaging in unlawful conduct relating to violence, dishonesty, public disorder, drunkenness and driving. More particularly, you were sentenced for wilfully damaging property and discharging a missile to damage property in 1982, for intentionally damaging property (on appeal) in 2010, and for five further offences of intentionally damaging property in 2011.
35Of most significance for present purposes is your prior conviction for the offence of reckless conduct endangering life. On appeal to the County Court on 10 November 2011, you were sentenced for that offence to a term of imprisonment which equated to time already served, namely 12 months.
36The circumstances in which that offending occurred are not in dispute and are summarised in the police summary that was tendered as Exhibit C, as follows:
'The defendant is a 43-year-old male. He resides at 14 Clements Grove, Reservoir. It is a DHS house; he has lived there for between two and three years.
…
On the night of 29 July 2009, Larson was at home. He was banging on bins and other items in his back yard and yelling and making excessive noise. Police were called on three occasions by neighbours, but Larson was not visible when they attended.
At about 11.30 pm, Larson entered and exited the garden shed twice. Shortly after this he entered the front yard of 16 Clements Grove…and crossed to the northern side of the house. At this time the three occupants of the house were at home; all lights were off. He had with him 1.25 litre and 2 litre plastic Coke bottles containing petrol. He poured the petrol onto the plinth boards of the house and on the ground in the vicinity of the chimney and ignited it. He then returned to his own house. The occupants of the house were able to extinguish the fire. Larson was arrested a short time later in his house. He was in an intoxicated state.'
37I note that as a result of numerous court appearances between January 1982 and November 2011, you have been placed on probation, fined and sentenced to an immediate term of imprisonment on multiple occasions, with those terms varying between one month and life.
38The second lengthiest sentence you have received to date was a head sentence of 10 years with a non-parole period of eight years for offences of armed robbery, burglary and theft.
Pending charge
39For the sake of completeness, I note that a second summary charge of breach parole is listed for hearing at the Bendigo Magistrates’ Court on 3 April 2024. That offence is said to have also been committed by you on 29 August 2022 when you consumed alcohol in breach of a prescribed condition of your parole.
Personal circumstances
40Mr Larson, I now turn to consider your personal circumstances which have been briefly outlined by your counsel in his written submissions.[12]
[12] Exhibit 1 on the Plea.
41You were born in Shepparton and raised mainly in the Shepparton/Bendigo area. You have one sibling, an older brother. After leaving school at the end of Year 8, you worked with your father as a roof tiler for about a year, after which you worked on a casual basis at a bakery.
42When just 17 years of age, you were arrested and charged with murder and armed robbery. After being convicted at trial, you were sentenced to a term of imprisonment for your natural life for the murder and a concurrent sentence of nine years with a six-year non-parole period for the armed robbery. When legislation was later passed to allow prisoners serving a life sentence to make application to the Supreme Court for the fixing of a non-parole period, you did so and received a non-parole period of 12 years.
43You were 29 years of age when first paroled in 1995. On release, you lived with a girlfriend in Reservoir, with whom you had two children. They are now aged in their mid-20s but you have no contact with them or their mother.
44However, you have ongoing contact with your mother and brother who are now aged 80 and 60, respectively. Your father died from cancer in about 2010, while you were in custody.
45Between 1995 and 1997, you ran a gardening business and also worked as a cleaner. In about 1997, you began to experience depression and anxiety, which interrupted your ability to work.
46According to your counsel, your mental health issues have become more complex since then. As the result of being severely assaulted in 2009, you sustained numerous injuries and still experience ongoing pain. You believe that assault caused you to sustain an acquired brain injury and to develop psychosis and schizophrenia, for which you have been medicated ever since. Currently, you are prescribed Seroquel and Lyrica. You have had no substantive psychological treatment or counselling for your mental health issues.
47You have no history involving the use of illicit substances.
48However, you have abused alcohol in the past, for which you have sought some treatment.
Matters in mitigation
49There are few matters in mitigation in your case, Mr Larson.
50Of those arising, your relatively early plea is the most significant.
51You also have a proven capacity to obtain and maintain gainful employment and to be part of a stable relationship.
52Whilst you appear to have ongoing family support, it is unclear what, if any, other support you have in the community.
Gravity of the offending
53
This court must also have regard to the objective gravity of your offending,
Mr Larson.
54As demonstrated by the relatively high applicable maximum penalty, arson is, by its very nature, an inherently serious offence.
55There are some serious aspects to the offence that you committed, including the fact that it occurred whilst you were on parole. As is clear from the fact that you travelled some distance to the scene and brought with you the necessary fuel (fire starters) and ignition device (lighter), it was pre-meditated offending. The property that you chose to set fire to was a highly combustible weatherboard house. That conduct on your part was highly dangerous and it was only due to good fortune, not design, that the entire house was not destroyed. As the only occupant was asleep at the time, he and you are very fortunate that the concerned neighbour, Mr Simmons, was as vigilant as he was.
56On the other hand, it must be recognised that the actual damage caused was fairly limited. But, that was due to Mr Simmons’ intervention and not because you immediately regretted having started the fire. The fact that you left the property while the fire was well underway and then returned in the circumstances that you did, evidences a clear intention and persistence on your part.
57Ultimately, I have concluded that your degree of moral culpability for this offence is high given that you appear to have been motivated by some grievance against either Ms Hynes or Mr Ermel or both. Furthermore, you have previously set fire to a residential property in the context of some type of neighbourly dispute.
58Whilst the related summary offence of breach parole by breaking the law is by no means a trivial offence, care must be taken in order to avoid doubly punishing you as the unlawful conduct founding that summary charge is the very same as that for which you must be sentenced on the indictable charge of arson.
Relevant sentencing principles
59General deterrence and denunciation are very important sentencing considerations in this case. By the sentence it imposes, this court must seek to discourage others minded to engage in such conduct while motivated by personal grievances and make clear the community abhorrence for such serious criminal conduct.
60Personal deterrence and community protection are also significant factors in this sentencing exercise. You must be personally discouraged from behaving in this or any similar fashion in the future and the community must be protected from you.
61This court must also have regard to your age and prospects of rehabilitation. As best I can gauge on the material available, your prospects are quite limited. It would appear that you need to develop better strategies for dealing with conflict and anger and to receive professional treatment and counselling for your serious drinking problem.
62In your particular situation, the totality principle assumes considerable significance. In that context, a number of sections of the Sentencing Act 1991 ('the Act') need to be considered.
Presumed Cumulation under the Sentencing Act
63As this arson offence was committed while you were on parole, s 16(3B) of the Act is engaged. It states that any term of imprisonment imposed for an offence committed while on parole must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment required to be served in custody on cancellation of the parole order.
64In a similar vein, s 16(3BA), states that every term of imprisonment imposed on a prisoner for an offence against s 78A of the Corrections Act 1986, must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment required to be served in custody on cancellation of the parole order under which he was released when he committed the offence against s 78A, and on any period of imprisonment imposed on the prisoner for an offence committed while released under the parole order.
Exceptional Circumstances
65In light of the fact that I have ultimately determined to convict and discharge you for the related summary charge of breach parole by breaking the law, about which I will say more shortly, there is no need to consider whether the exception relating to s 78A of the CorrectionsAct is established.
66However, given the fact that the sentence to be imposed for the arson charge will be a custodial one, the exception allowed for under s 16(3B) does require consideration.
67Notably, in the rather unusual circumstances of this case where you are now serving a life sentence in prison as the result of the Adult Parole Board revoking your parole based on your current offending,[13] the defence and the prosecution submitted that it was both open and appropriate for the court to find that exceptional circumstances existed. The parties also jointly submitted that in the event that the court made such a finding, it would be appropriate to order that any sentence for the arson charge be served concurrently with the life sentence you are currently undergoing for your murder conviction.
[13] And also, perhaps, on the basis of his alleged intoxication at the time given one of the conditions of his parole was a prohibition on consuming alcohol.
68As noted by Tate JA in the case of Roberts v The Queen ('Roberts'),[14] a finding that life imprisonment amounts to an 'exceptional circumstance' within the meaning of s 16(3B) operates to enliven a discretionary power in a judge to direct otherwise as between different offences committed while on parole.[15] But as she also noted, by reference to a number of previous authorities, it is a different situation when it comes to the question of cumulation as between the sentence for those offences and any life sentence as it is 'well established that once a prisoner has been sentenced to life imprisonment, any later offence can only be served concurrently because of the nature of a life sentence'.[16]
[14] (2012) 226 A Crim R 452 (Nettle JA and Ferguson AJA agreeing).
[15] Ibid, [100] (Nettle JA and Ferguson AJA agreeing).
[16] Ibid, R v Chamberlain [2001] VSCA 159 at [15] (Charles JA, with whom Brooking JA and Chernov JA relevantly agreed), citing R v Jolly [1982] VR 46; and R v Tsaikmaskis (1986) 19 A Crim R 383.
69In my considered view, the joint submissions of the parties should be accepted in the rather unusual, and certainly exceptional circumstances of this case, for the same reasons as were given in the case of Roberts. In that case, the prosecution had likewise conceded the existence of exceptional circumstances under s 16(3B) as the sentence for which the offender was on parole was a life sentence.[17] That concession also acknowledged that concurrency between the sentence imposed and the sentence for which the offender was on parole was appropriate.[18]
[17] Ibid, [89].
[18] Ibid, [89] and footnote 61 (citing R v Jolly [1982] VR 46 and R v Chamberlain [2001] VSCA 159).
Proportionality
70I also note that the law requires this court to impose a proportionate sentence for the current offences; that is, one that is proportionate to the level of criminality involved.
Need to avoid Double Punishment
71As I have already noted, in effect, there is a considerable overlap between the two charges for which you now fall to be sentenced, Mr Larson, as the conduct the subject of the arson charge is the very unlawful conduct on which the summary offence of breach parole is based.
72In circumstances where, as here, the court intends to treat the fact that the offender was on parole as an aggravating factor for the indictable offence, there is a need to proceed with caution so as to avoid doubly punishing the offender for the same conduct.
73In my view, such a danger can be avoided by simply convicting and discharging you for the summary charge of breach parole by breaking the law.
Sentencing submissions
74Whilst the prosecution referred to different aspects of this offending when making their respective sentencing submissions, they were in agreement with the defence as to the appropriate penalty, namely a head sentence in accordance with the previous sentence indication, together with a suitable non-parole period for the arson charge, and conviction and discharge for the related summary charge.
75Having regard to those submissions and to all of the relevant circumstances that arise in this case, I have concluded that it would be appropriate to sentence you in that manner, Mr Larson. In that context, I do not consider it appropriate to decline to fix a non-parole period under s 11 of the Act.
Sentence
76Mr Larson, after having carefully considered, balanced, and weighed all of the relevant sentencing considerations in your case, I have decided to sentence you as follows.
77On the charge of arson, you will be convicted and sentenced to a term of three years’ imprisonment.[19]
[19] On the morning of 14 March 2024, the defence made a second application for a sentence indication which was limited to a single charge of arson. The application was not opposed by the prosecution. At 12 pm on that date, the court granted the application and gave a sentence indication of three years’ imprisonment, pursuant to s 207(1)(b) of the Criminal Procedure Act 2009. Later that afternoon, the defence advised that Mr Larson accepted the sentence indication. At 3.15 pm, Mr Larson was arraigned and pleaded guilty to a filed over plea indictment containing one charge of arson and to the related summary offence of breach of parole.
78On the related summary offence of breach of parole by breaking the law, you will be convicted and discharged.
79In respect to the sentence of three years imposed for Charge 1, I fix a non-parole period of two years.
80In accordance with my previous finding as to the existence of exceptional circumstances based on your life sentence, I intend to exercise my discretion under s 16(3B) to 'otherwise direct'. Accordingly, I order that the sentence imposed for Charge 1 on this indictment is to be served concurrently with the life sentence that you are presently undergoing.
Pre-sentence Detention
81Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of one day pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the court’s records.
Section 6AAA indication
82Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to the charge of arson, you would have been sentenced to a term of four years’ imprisonment for that offence with a non-parole period of three years.
Other matters
83Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Lewis?
84MR LEWIS: No, Your Honour.
85HIS HONOUR: Thank you. Mr Cordy?
86MR CORDY: No, Your Honour.
87HIS HONOUR: Thank you.
88Please adjourn the court, Mr Tipstaff.
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