Director of Public Prosecutions v Lester

[2016] VCC 1445

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01060

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE LESTER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 September 2016
CASE MAY BE CITED AS:	DPP v Lester
MEDIUM NEUTRAL CITATION:	[2016] VCC 1445

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Piggott
For the Accused	Mr A Pyne

1HER HONOUR: Lee Lester, you have pleaded guilty before me to five charges of intentionally causing a bushfire, that is in what are called rolled up charges, and six charges of intentionally causing a bushfire.

2The facts underlying your offending are as follows: 

3Between 2 and 19 February 2016, a series of bushfires were started and burned in the Ashwood, Holmesglen and Chadstone areas.  Many of them were in Holmesglen Reserve, which is located off Power Avenue, Ashwood.  All of them were in reserve parkland, surrounded by residential accommodation. 

4At the date of the offences, you were staying with Ashley Hainger.

5A former girlfriend with whom you had resumed a relationship, who lived at Flat 2/27 Power Avenue in Ashwood.  Your co‑accused in this matter resided at Unit 1/27 Power Avenue, that is was a neighbour, that is directly opposite where you and your girlfriend were staying. 

6The fires were deliberately lit by yourself and your co‑accused.

7I will briefly go through the various fires but I annex the extremely detailed and helpful prosecution opening to my sentencing remarks. 

8Charges 1 relates to three separate fires which were lit between 2 and 3 February 2016, located in the Holmesglen Reserve and involved the burn‑out of small areas of scrub on each occasion.  Charge 2 relates also to three separate fires occurring between 3 and 4 February 2016, again occurring in the Holmesglen Reserve off Power Avenue.  They were located between 10.20 pm and 1.48 am.  Again small‑ish areas of undergrowth were burnt out in the fires.  Accelerant was smelt at the scene.

9I should add that in relation to the fires underlying Charge 1, your co‑accused was spoken to by police after he was seen watching the Metropolitan Fire Brigade attending the fires.  That co‑accused was also seen, spoken to by police outside his unit as he was having a cigarette and again watching the MFB, he telling police that he had seen a man run out of the reserve after the fire brigade arrived.

10Charge 3 relates to a small fire in scrub area close to residential buildings, directly opposite the accused's address.  Charge 4 relates to a fire where scrub and undergrowth were burnt along the Gardiners Creek track within the same reserve. 

11Charge 5 relates to a fire on 10 February which was ignited and burnt an area of ten by ten metres of scrub and bushland towards the western end of the reserve area, near a bicycle park. 

12Charge 6, on 11 February 2016, a fire was located off a walking track on the southern side of railway tracks, parallel to a railway pedestrian crossing in Chadstone.  There were three fires lit in sequence in an area of scrub and grassland which backed directly on to residential houses and the fire fact was less than five metres away.

13Charge 7, on 12 February 2016, a fire was lit in the same areas as the fires in Charge 6.  It was extinguished by a passer-by.

14Charge 8, on 13 February, related to fires in scrub area adjacent to a railway line and on the northern side of a railway overpass near the corner of Power Avenue and Paringa Court.  Forensic scientists attended the scene and identified accelerant such as kerosene and firelighters.  Apparently the opinion was that the fire was started by the ignition of available material such as the vegetation and leaf litter using firelighters.

15Charge 9, on 15 February 2016 relates to two fires noted within approximately an hour of each other, at 5.35 pm and 6.30 pm, in the rear car park of the reserve.

16Finally, then Charge 10 occurred on 17 February 2016, a two by two‑metre fire located in the south‑east area of a walking track bridge.  Charge 11 occurred on 19 February 2016 and involved two separate seats of fire located at 3.20 am next to the railway line between 3 Myara Court, Ashwood.  Accelerant was smelt at the scene and fabric stuffing was located which had been used to assist the spread of the fire as it was stuffed in various locations of scrub.

17Later on 19 February, two search warrants were executed at the residence of your co‑accused and the unit where you were residing with your girlfriend. 

18Your girlfriend and another young woman were interviewed at the police station and provided statements confirming the involvement of yourself and the co‑accused in the fires. 

19After a while, apparently the co‑accused returned to his unit in his car, of which you were a passenger.  You told police your name was Chris Johnson. 

20A search of the car revealed an aerosol can, which was covered in plastic wrap, which is believed was used as an accelerant in some of the fires.  Your car was searched on 22 February 2016 and a bottle of mineral turpentine was found in the back in a backpack along with white fabric stuffing similar to that located at the scene of Charge 11.

21In a record of interview with police, you said you'd been staying at Ashley Hainger's apartment for a month, denied any involvement in the fires,  said you were present, however, where fires were lit, as you would drink during the day and went for walks at night.  You said you drank all day and heard someone talking about a fire and what to use to start a fire.  You told police that the co‑accused had started a fire in a tree with a lighter but denied any involvement by yourself.  You said you were present when something was poured on the ground and that you saw the co‑accused inside shrubs and saw some spark and a flick and said you knew nothing about the fires.

22Then you said that in relation to the February 2015 fire, you vaguely remembered trying to light something, that you saw fires being lit, that the co‑accused had a spray aerosol can in his pocket and you knew that you had tried to light something. 

23You admitted that you were present, that a few fires were lit, about half a dozen.  You couldn't remember the locations.

24When asked about what made you go out and light a fire, you stated there was no real explanation, just stupidity and boredom and that you "just went along like a retard".

25The co‑accused, who was also interviewed on 19 February, stated that he had been involved in some of the fires, that the two of you were drinking and were bored and said that you had lit some of the fires. 

26The statement of Ashley Hainger revealed that she was present when the two of you were drinking and walking in the reserve area near to the units where she lived.  She said she was drunk when she went on these walks and she saw the two of you come out of bushes and then shortly afterwards, would smell burning.  Apparently on the previous day, 18 February, you had sent her a text message, "LOL, fuckin' serial arsonists, hey, ha ha ha ha".  She said she had heard you and your co‑accused on previous occasions talking about fires in general and her friend, Amber Holland, in her statement to police, said that on her visits to the Power Street units where Ms Hainger lived, she had met with you and the co‑accused, drunk with you, gone out for walks with you and had seen the two of you light fires in small shrubs.

27Photographs of the burned out areas were tendered on the plea. 

28You pleaded guilty to these charges at committal mention.  The maximum penalty for each of these charges is 15 years' imprisonment. 

29The Metropolitan Fire Brigade attended, it would seem, all but one of these fires and has applied for restitution order for $61,596 which cannot be dealt with by this court but I am mentioning it simply to indicate the amount of trouble that you and your co‑accused have caused and what this has cost the community although ultimately it may be that it is going to cost you that.

30You have a relevant prior conviction. 

31On 1 November 2012 you were placed on a community corrections order for a charge of criminal damage by fire, arson, which related to you setting your mother's car on fire after a dispute with her. 

32Ultimately, you were dealt with for contravening that community corrections order due to non-compliance, that was on 13 May 2014 at which time the Corrections order was converted into a six months suspended sentence which had an operational period of 12 months. 

33You were then charged with theft and obtaining property by deception which related to the finding by you of a credit card which you kept and used and you were dealt with for breach of suspended sentence on 27 October 2015, at that time, the magistrate choosing, due to exceptional circumstances, not to restore the suspended sentence but extending the operational period.  It was only three months later that you then began offending in the way that has brought you before this court and  therefore I am to deal with that today, that is; 

34I am also required to deal with you for breaching the suspended sentence by this offending, for which I must deal with you today. 

35You are now 31 years of age.  You have a very difficult history.  Your mother was only 16 when you were born. She went on to have a number of relationships, the relationship with your father, not lasting for any great period of time.  Over the years those relationships were problematic, not just for her but obviously for you. It appears at one stage you were the subject of sexual abuse from your biological father. Fortunately, for some years now, she has been in a very satisfactory relationship and your stepfather presents as a very kind man with whom you have a good relationship.

36A great difficulty for you has been that in addition to this difficult and dysfunctional childhood and adolescence that you had to endure, it has been your belief that from a very early age that although you were born a girl, you are in fact a boy.  In other words, you have had transgender difficulties since a very early age and that, in and of itself, would be enough to wreak havoc in someone's life.  I am going to go back to your childhood in a little more detail because it seems to me that in addition to having to deal with transgender issues at a time when the community is only just becoming truly accepting and understanding of the problems that attend on people who feel that they have been born into the wrong body, you have, as I have said, had a very difficult childhood.

37Apparently your mother nearly died when you were born because of a retained placenta.  You were an only child.  Your father left when you were an infant and your mother re‑partnered when you were two and had two further daughters with her new partner.  You grew up believing this man was your father until your biological father made contact when you were eight and you found this confusing and distressing, accord to a report of Dr Nina Zimmerman, a psychiatrist, dated 12 September 2016.  Your biological father then had intimate contact with you from that time and repeatedly sexually abused you.

38Your attempts to report this were unsuccessful.

39You and your mother eventually left your stepfather, with whom you had a difficult relationship, and spent time in a refuge.

40You had a disrupted education, obviously, because of the factors in your family life.  You attended several primary schools and eventually completed Year 10, beginning a chef's apprenticeship but ultimately had an argument with your mother and were forced to leave home.  You ended up dropping out of the apprenticeship.

41Dr Zimmerman states:

"Mr Lester stated he knew he was a boy from primary years.  He said he wanted to change his name and would play with the boys at school.  He said he didn't tell other kids how he felt.  He said that he was afraid and confused because he had heard other people being gay but not people being in the wrong body". 

42You were at one stage sent to an all-girls school, which was very difficult for you.  You got into fights there and on one occasion broke a girl's jaw.  I accept that there was a great deal of emotional difficulty and confusion surrounding your childhood in any event but that there was also a great deal of dysfunction and instability.  You described a lack of stability, saying that you had been homeless at times and that in particular you yourself have had a very unstable life since leaving school partly because of a fluctuating relationship with your mother and also because it seems you very quickly turned to drug use. 

43You apparently first used ice when you were 18, at which stage you were living and working at a brothel.  Your mother paid for you to complete a residential rehabilitation program and you stopped using for some years, but then moved to Melbourne into a boarding house and began smoking ice again.

44Dr Zimmerman stated:

"He told me that has used constantly for the last two to three years.  He denied ever having injected". 

45You have also used cannabis since your teens and have periods of drinking up to 30 cans of beer a day.  It appears that at the time that you committed this offending, you were essentially living in a haze of alcohol, cannabis and ice use and that it was in this context that this offending occurred.

46You have been prescribed male sex hormones, since you were about 17, from the Monash Gender Clinic and you maintain contact with specialists at Monash.  You also have a reasonably extensive psychiatric history.  You first had contact with Werribee Mercy Mental Health program in October 2009.  You have had one psychiatric admission which was in June 2011 when you were admitted to the Alfred Hospital and you were then diagnosed with transsexualism which it appears was categorised as some sort of illness by Box Hill in 2011.  You have had contact with Box Hill Mental Health Services between July 2013 and January 2014 where you were diagnosed with emotional unstable borderline personality disorder, bipolar and substance misuse associated with "mental and behavioural abnormalities".  You had contact with the Maroondah mental health team in September 2014.  You have been prescribed anti‑depressants and anti‑anxiety medication.  I was also given a report from your treating psychiatrist, Dr Stamp.  In that report it was Dr Stamp's view that you suffer from a post-traumatic stress disorder.  His report is dated October 17, 2015. 

47It is his view that the post-traumatic stress disorder derives from essentially the difficulties of your past history, that is disruption in your family, sexual abuse from your father, transgender difficulties, drug and alcohol use.  I certainly accept that you present with a very complex constellation of difficulties.

48It has been the prosecution submission that I should deal with you by way of a sentence of imprisonment. 

49Dr Zimmerman speaks of your experiences in gaol where you have remained since your arrest.  You appear to have managed reasonably well.  It seems that you have managed to refrain from and to detoxify yourself from drug use.  You are working and you spend your days, it would appear, in a fairly constructive manner.

50At the same time, as a transgender person, it is very difficult for you, I accept, to be housed in an all-female facility. 

51It would seem that gaol, in some respects, has been a stabilising experience for you and has certainly allowed you to remove yourself from access to the subjects of your addiction, that is drugs and alcohol.

52You told Dr Zimmerman that you were drinking 30 cans of beer and taking 20 codeine tablets a day at the time of the offending as well as smoking ice.  You told her you were not sleeping for days on end and would then pass out on the couch.  You were also smoking cannabis, that your mood was unstable and you had begun to feel irritable.

53Dr Zimmerman stated: 

"I believe there is a link between Mr Lester's failure to form secure attachments in his early years and the abuse he reports having experienced at the hands of his father and stepfather and his subsequent struggles to form secure sense of himself in the world.  This has resulted in intense, rapidly changing feelings including anger, anxiety and depression.  His mood fluctuations are rapid and intense rather than the more sustained periods of elevation or depression that one would expect with a major mood disorder.  He has not been able to develop personal resources for dealing with these feelings, instead turning to acts of harming himself and substance abuse.  The consolation of intra and interpersonal difficulties that arise on a background of insecure attachment is often associated with borderline personality structure".

54It is Dr Zimmerman's belief that when you are suffering from stress or depression, your risk of self harm increases and you have reported a biological vulnerability to psychiatric illness. 

55Now, I have gone into those reports in some detail because a considerable concern is the fact that when the magistrate gave you an opportunity, in October of last year, that is allowed you to return home to live with your parents, but you seemed simply unable to take advantage of this.  It appears you almost immediately returned to abusing drugs and alcohol.  You left your mother's home and you went to reside with an associate who was an old girlfriend, as I understand it, who had drug and alcohol issues of her own.

56There appeared to be no reason for this and it is particularly concerning to the court that at a time that you have been given this opportunity to avoid gaol, you simply relapsed into the destructive behaviours I have just outlined. 

57In my view, the passage I have just read out from Dr Zimmerman's report explains this to some degree, that is that you are constantly subject to rapidly changing emotional states that you do not know how to handle and which you do tend to handle by turning to drugs and alcohol.

58During the plea I categorised your offending as immature.  Certainly in my view it bears all the hallmarks of adolescent offending.  It was a spree‑type offending, it was purposeless, there was some planning, towards the end, but generally speaking it appears to have been impetuous and meaningless.  It was inevitable that you would be apprehended by police and also it was intense offending committed on a daily basis over a period of time until you were apprehended.  Again, this is typical of adolescent behaviour.

59In your conversation with Dr Zimmerman, you appear to attribute much of the proactivity or much of the action surrounding this offending on your co‑accused and the prosecution has made it clear that both you and your co‑accused are to be regarded on an equal basis.  I do not particularly intend to enter into who was to blame.

60At the end of the day, however, Mr Lester, no matter what difficulties have beset you, you are 31 years old.  You are an adult.  You do have to take responsibility for your life, difficult though it may be and difficult though your emotional state may be.  Whether it is a result of post-traumatic stress disorder, an anxiety disorder, or borderline personality traits, it is hard to say.

61At the end of the day you are left with those conditions and they are yours to deal with. 

62If you do not decide to take responsibility for managing these conditions for which the court of course has a great deal of sympathy, but if you do not learn how to manage those conditions by legitimate means rather than turning to drugs and alcohol, your life is going to be one of a continuous return to prison. 

63Fortunately you continue to enjoy the support of your mother and stepfather.  They are now located in Maitland in New South Wales which is a very attractive option in terms of this court dealing with you because it means if you go to live with them you are removed from the sorts of associates that have been damaging to you in Melbourne.  It appears you have a particular difficulty in choosing appropriate people to mix with and you are vulnerable to becoming involved in criminal and destructive behaviour.

64In fact for a person of 31, you do not have a particularly extensive prior criminal history, but this offending by you on this occasion is a marked escalation of previous offending and it had the capacity to go very wrong indeed.  Had a house burned down, which could easily have happened, had a person been injured or killed in a fire started by you and your co‑accused, then you, Mr Lester, would be looking at years in gaol, not sitting at the back of a court while your counsel argues for a community corrections order.

65You have pleaded guilty.  You do have the support of your mother and your stepfather who have travelled down from Maitland and have been present in court every day of this hearing. 

66Your offending, although extremely serious, was short lived and, as I have said, bore the hallmarks of immature offending. 

67You appear to have used your time in gaol usefully. 

68I accept the prosecution's admission that general deterrence is a major principle in the sentencing exercise before me, that is I need to sentence in a way that sends out a message to other persons in the community that if they offend in the same way they will be dealt with severely.

69You also need to be taught a lesson, that is there needs to be punishment and consequence to this very dangerous and lawless and reckless offending that you engaged in. 

70Finally I have to have regard to protection of the community, that is ensure, as far as possible, that the community are protected from you offending in this way again.  Normally that is said to be best done by way of a sentence of imprisonment. 

71In my view, you are still at a point of time in your life where rehabilitative dispositions have a big part to play in your long‑term future. 

72It is my view that I should deal with you by way of a combination of gaol sentence, a sentence of imprisonment, to be immediately served, and placement on a community corrections order.

73It is my view that you do have reasonable prospects of rehabilitation, most of which you have demonstrated simply because you were placed in gaol. 

74I need to make this very, very clear, Mr Lester.  This is the last time a court will ever consider a community corrections order for you.  If you offend in the future, you can confidently expect a gaol sentence.  If you ever appear in a court again, that court will have in front of it your criminal record which will include, now, the fact that you have been dealt with in the County Court for a total of 11 charges of arson and will probably seek a copy of the sentencing remarks I have made today outlining your criminal activity.  It is highly unlikely that any court in the future, armed with the information that it will be provided with about these proceedings, is ever going to give you anything in response to any future offending by you than gaol.

75I know that you suffer from anxiety difficulties and I do not wish to add to them but for your own safety, you need to keep firmly in the front of your mind that you have run your race insofar as community corrections orders or anything of a non-custodial nature is concerned.  This is it, Mr Lester.

76In sentencing you I take into account your plea of guilty.  I accept your remorse for your offending. 

77I have somewhat guarded views in relation to your prospects for rehabilitation but it is my view that both the punitive and rehabilitative aspects of a sentencing exercise before me, particularly given your own personal difficulties and the support that you still enjoy, are best met by the imposition of a combination of gaol and community corrections order.

78You have been assessed as suitable for placement on an order.

79You told the Community Corrections officer, Ms Kafcarlus, that you wish to move to Maitland and I am informed, in her report, that you can be informally supervised at Maitland community correction centre although formal supervision of the order will remain with Corrections in Victoria.

80There has already been consultation with Ms Kafcarlus with Maitland Community Corrections officers who have taken a tentative acceptance of a transfer should I impose a CCO.

81It appears that if I do impose a CCO, you would have to report to Dandenong Community Corrections services where, because you will be initially residing with your stepfather's parents in Murrumbeena, you will be formally inducted by Corrections in Dandenong and then transferred to New South Wales.  An appointment has also been made for you to see a Dr Amir at the Rutherford Family Medical Practice in New South Wales in order to obtain a mental health care plan and then it is intended that you attend upon a psychologist.

82A further appointment is being made for you to attend the mental health and substance use service as Mater Hospital in Newcastle in October.  In other words, a great deal of organisation has gone into the structure that you will need to adhere to on any community corrections order.

83I am also informed that plans are made for you to attend both alcoholics anonymous and narcotics anonymous.

84In all the circumstances, in my view, the term of imprisonment that I should impose is the 216 days that you have served.  That will relate both to the charges before the court but also in relation to the suspended sentence.  I restore that suspended sentence of six months and I order that it be served concurrently with the 216 days on each of the charges.

85You can stand up, please, sir. 

86I sentence you to a term of imprisonment of 216 days it, to be followed by release by you on to a community corrections order for a period of two and a half years.  Each of those sentences will be served concurrently. 

87I note, I am sorry, Ms Piggott, if you can assist me, the statement I have to make in terms of the serious offender? 

88MS PIGGOTT:  That he's sentenced on, I think, the first charge onwards as a serious offender.

89HER HONOUR:  I note that you are sentenced from Charge 1 on of the indictment as a serious arson offender.  That will also be on your record.  You understand? 

90ACCUSED:  Yes, Your Honour.

91MS PIGGOTT:  Just two other matters, Your Honour, and I'm sorry to interrupt Your Honour.  The s.6AAA of the sentencing ‑ ‑ ‑ 

92Before I can place you on a community corrections order, I must get your consent.  I will therefore outline to you the conditions that you probably know off by heart, given the opportunities you've had in the past, Mr Lester.

93Whilst you are on the order you must not commit any offence punishable by imprisonment either inside or outside Victoria.  So offending in New South Wales will also breach this order.  Do you understand? 

94OFFENDER:  Yes, Your Honour.

95HER HONOUR:  Secondly, you must report to the Office of Corrections within two working days of being placed on this order, that is by Friday of this week. 

96Whilst on the order, you may not leave Victoria without the permission of the Community Corrections office.  That means even though you're deadset keen ongoing to Maitland, you first have to go and live with your stepfather's family and report to the Dandenong Community Corrections Centre and you may not go to Maitland until the transfer has been approved.  You have to be patient.

97You must inform the Office of Corrections of any change of address or employment within 48 hours of that change. 

98Whilst on the order, you must not attend upon Community Corrections whilst under the influence of drugs or alcohol.  You must report to and receive visits from the Community Corrections office and you must obey all lawful directions of the Community Corrections office.

99I also order that you be assessed and treated for mental health difficulties and I order that you be assessed and treated for drug and alcohol difficulties.

100Are you prepared to enter this order? 

101OFFENDER:  Yes, Your Honour.

102HER HONOUR:  Thank you, have a seat.  That's it.  That's the last time.

103OFFENDER:  Thank you.

104HER HONOUR:  I'm not going to organise judicial monitoring.  It's too hard.  He's going to go to Maitland and, really, if the message hasn't got home to Mr Lester by this stage, well, you know, we're done.

105MS PIGGOTT:  That's correct, Your Honour.  There's really nothing the prosecution could say in relation to that.

106Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two years and six months and order that you serve a minimum term of 15 months. 

107MS PIGGOTT:  I also have the application, Your Honour, for a forensic sample.

108HER HONOUR:  Yes, I'm prepared grant that. 

109MY PYNE:  Your Honour, there's just one matter that I would raise.  Just in relation to pre‑sentence detention ‑ ‑ ‑ 

110HER HONOUR:  Yes, I declare that ‑ ‑ ‑ 

111MY PYNE:  ‑ ‑ ‑ 216 ‑ ‑ ‑ 

112HER HONOUR:  ‑ ‑ ‑ 216 days, thank you. 

113MY PYNE:  That's right, 216 days includes today.

114HER HONOUR:  Yes, I understood that.  I declare that 216 days of this sentence have already been served by way of pre‑sentence detention. 

115Now, I am going to order that you must report to police; that you are to provide police with a forensic sample.  They will simply swab your mouth.  I need to advise you that if you resist attempts by police to take this sample, that they may use reasonable force in order to obtain it.

116So you need to go to the Murrumbeena Police Station within the next 28 days and do that, all right? 

117OFFENDER:  Yes, Your Honour.

118HER HONOUR:  Just don't muck this up, Mr Lester, okay? 

119OFFENDER:  No, Your Honour.  Thank you very much for this opportunity.

120HER HONOUR:  That's all right.  You know, this is all about you getting some internal structure, making some reasonable decisions.  We'll get you to sign that. 

121MY PYNE:  Your Honour, if I could step away from the Bar table while my client signs the Community Correction Order.

122HER HONOUR:  Yes, of course.  Thank you.  Thank you for your attendance. 

123Good luck, Mr Lester. 

124OFFENDER:  Thank you very much, Your Honour.

125HER HONOUR:  Let this be the last time I ever, ever see you, all right? 

126OFFENDER:  Thank you.

127HER HONOUR:  Thank you for your assistance, Ms Piggott and thank you very much, Mr Payne.

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