Director of Public Prosecutions v Lord

[2018] VCC 1613

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01216

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND LORD

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2018
DATE OF SENTENCE:	3 October 2018
CASE MAY BE CITED AS:	DPP v Lord
MEDIUM NEUTRAL CITATION:	[2018] VCC 1613

REASONS FOR SENTENCE
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Subject:Criminal law – Sentencing – Arson – Rare Circumstances – Adjourned Undertaking without Conviction Imposed – Undertaking to Assist Authorities – s5(2AB) Sentencing Act 1991

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bate	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms K. Ljubibic	Dribbin and Brown Criminal Lawyers

HER HONOUR:

1Raymond Lord, you pleaded guilty to one charge of arson and that arose out of an incident that occurred at approximately 11.10 pm on 8 November 2017. It concerns you pouring cleaning fluid that you purchased from a Bunnings store over the driver's seat of a vehicle belonging to your grandmother, Janette Arbour, and then set it alight, causing the vehicle to be totally destroyed.  The value of the vehicle is $1,000.

2The context to the offending was that you were encouraged by your mother to do what was done because she had a grievance with her mother who had evicted her from the unit.

3I do not propose to go through chapter and verse all the background and circumstances of the context to the offending, because it is comprehensively referred to in the prosecution opening, paragraphs 1 through to 6.

4Importantly, the Crown accepts that you did not intend for the fire to cause the consequential damage that was done to another vehicle, a carport and also the significant smoke and water damage to your grandmother's unit.

5Following the commission of the offence you left Victoria and went to Queensland. Enquiries were made and eventually you were located by the police.  Initially you told police you would not return, but ultimately you did return to Melbourne and you indicated your willingness to be interviewed.

6On 29 November 2017 you voluntarily attended the Maroondah Crime Investigation Unit and made a full and open record of interview, where you made admissions to the offending and stated that you lit the fire because your mother had offered you money, namely $1,000 to do so.

7On 30 November 2017, you made a formal statement to police confessing to the commission of the crime. You confirmed in that statement that your mother had contacted you whilst you were in a psychiatric ward and today, I have been advised by your counsel that you had been having treatment, having made an attempt on your life. You were at the Maroondah Hospital when you received the call.

8You explained to the police that your mother was angry because of being evicted by her mother from the unit and that she wanted revenge. She asked you to petrol bomb your grandmother's car and gave you some advice on how to do so.  She indicated that if you were to do this that she had a “treat” for you, which was known in your family to mean that she would give you some money.

9You were upset about your mother's mental health and thought she would leave you alone if you did what she wanted. You lit the fire using flammable liquid purchased from Bunnings with a match.  You understood what you did was wrong. You intended to set fire to the car but did not intend for the flames to spread and you were surprised at how fast that the fire spread.

10Your partner, Emily Wilson, was present at the scene, but did not do anything.

11Today in court you have given an undertaken to the court that you will agree to assist the prosecuting authorities in the case against your mother and there is a contested committal hearing of this matter that is due to be conducted on 29 October 2019. You will be giving evidence in accordance with your sworn statement. The fact that that undertaking was given this morning has been recorded and will be entered into the record of the court and your sentence will be reduced accordingly. I refer to s.5(2AB) of the Sentencing Act.

12I have had regard to the matters put in mitigation and I accept this is a rare and unique case, which justifies the sentencing disposition that I have outlined that does not result in a conviction for a serious crime of arson. 

13Parliament has dictated that arson is a serious crime and that is reflected in the fact that maximum penalty for such a crime is level four imprisonment and that is
15 years' imprisonment.

14However, the combination of features are as follows:  firstly, I have had regard to your full cooperation with the police at the time you were formerly interviewed and made full admissions to the offending.  I have had regard to the fact that you made a formal statement confessing to the commission of the crime on 30 November 2017 and that you have given an undertaking to the court to cooperate and provide assistance to the authorities in the prosecution of this matter against your mother.  The undertaking was recorded at today's hearing.

15The plea of guilty has real utility, it is a reflection of acceptance of wrongdoing on your behalf and is indicative of genuine remorse on your part.  Your plea will be discounted accordingly to have regard to the utilitarian value of the plea, but also having regard to the significant level of cooperation that you have undertaken to give the authorities to give evidence against your mother in accordance with the formal statement that you have adopted.

16Importantly, you are a relatively youthful person.  You were 21 at the time of the incident, you are now 22.  You have no criminal history.

17Your partner, Emily Wilson, has been charged with the offence and her trial is listed on 19 August 2019, in the County Court.  Your mother has been charged with the offence of arson and her matter is, as I have already stated, listed for a contested committal hearing on 29 October 2018.

18I have had regard to your post-offence conduct, you have successfully obtained residence at the caravan park in Dandenong and you are now working full time as a roof tiler. 

19For somebody who comes from your background, which can only be described as severely dysfunctional, that is an important and remarkable achievement on your behalf and it is further evidence that I have taken into account in deciding whether or not to exercise my discretion to record a conviction.

20Ultimately, I have exercised my discretion not to record a conviction. I have had regard to the matters set out in s.81 of the Sentencing Act 1991. I have had regard to the particular unique circumstances of the offending, notwithstanding it is a serious offence. I have had regard to your past history and the good character evidence that I have heard. You have not had any recordings of guilt against you or any convictions ordered against you in the past. Importantly, the impact of recording of a conviction upon your economic or social wellbeing or on your employment prospects for the future would have been great, having regard to the community's perception of what the crime of arson constitutes. All those factors combine such that I consider that this is a case where I can exercise my discretion not to record a formal conviction.

21I have also had regard to the powerful impact of you giving the undertaking this morning.  I have already described your family as dysfunctional.  I am mindful of the fact that you come from a family where your parents have led a very transient lifestyle and you have moved between the states of Queensland and Victoria throughout your childhood and have never had a regularised home life.  You have four other siblings, one older, two younger sisters and a younger brother.

22I have been informed this morning that your parents had problems paying their debts and rent, and that they would move about in order to avoid that.  That led to a severe interruption to your childhood development and schooling.

23You had a number of schools that you attended over the years. In high school you were bullied and had difficulty making real connections.  Notwithstanding that you were able to continue through school and you completed three terms of Year 10 and two weeks of Year 11 before leaving school.

24When your parents separated you were still relatively young, you were 12 and at an impressionable age.  You were left with your father, who was described as being abusive and a violent man, who was also a drug user and in the past he had been violent towards your mother.  You then became subjected to his abusive conduct, such that you left home at a very young, aged about 16, to travel to Victoria to setup life with paternal aunts and uncles.  You remained here for one year and did courses, including a Certificate II in Mechanics and a Certificate II in Panel Beating.

25You then went back to Queensland where you met a partner, with whom you then had a son, Jaykob, who is now aged three.  That relationship deteriorated and Jaykob remains with his mother. You have some limited telephone contact with him, but otherwise have no meaningful relationship with your son's mother.

26Notwithstanding your lack of formal training and education you have been successful in working various jobs as a carpenter, packing at a factory, and also laying carpets. Currently, you are working as an apprentice roof tiler, working between the hours 6.30 am to 4.30 pm.

27You have secured stable accommodation at the Dandenong caravan park and you have not come to the attention of the authorities in any other way.

28Your relationship with your mother has been a very problematic one over the years.  In your late teen years you maintained some contact with her and renewed that contact in mid-2017, when you were particularly vulnerable and feeling lonely. It was through her that you eventually came to meet your current partner.

29The context to the offending has been described as a time when you were at risk, you were vulnerable.  You had attended the Maroondah Hospital two days before the incident, having attempted to take your life through an overdose of medication.  Previously you had sought assistance from a GP for depression, anxiety and anger issues, and he prescribed you antidepressants and you had taken an overdose. 

30You have not had referral to a psychologist or a counsellor to deal with your underlying issues in the past.

31Following your discharge your mother called you, she was distressed and emotional.  She told you that she had attempted to commit suicide and that she wanted you to take revenge on her mother in the manner that was described earlier and she pressured you to undertake that task.

32I have formed the view that you did understand what you did was wrong, but you were very vulnerable at the time and as a consequence your judgement was impaired and that to a large extend does explain your conduct on this occasion.  I am satisfied that you were not aware of the possibility of the unintended consequences of your actions and that is accepted by the prosecution.

33In relation to sentencing discount I have had regard to the principles set in the matter of Coffee v The Queen[1], and in particular it is important for the courts to note, where a person provides assistance to the authorities that is of significance in the prosecution of other offenders, that it is very much in the public interest to encourage that.  I quote from that decision, paragraph [25],

"It's very much in the public interest that those who commit offences be given every encouragement by the courts to inform upon their co-offenders and to give evidence against them.  If that means that those who are informers receive the benefit of sentences that are significantly lower than they might otherwise merit, that is a price which society must be willing to pay".

[1] [2010] VSCA 285

34Therefore, notwithstanding that arson is a serious offence, that is reflected in the maximum penalty that is prescribed by law, and that general deterrence is ordinarily a significant feature of such offences, the unique combination of factors that I have identified today leads me to the conclusion that just punishment in all the circumstances is an adjourned undertaking for two years, with there being no conviction recorded.

35I make the compensation order sought in the sum of $1,000, in respect to the damage occasioned to the vehicle.  Finally, in relation to the application pursuant to s.464ZF, do you have instructions in relation to that?

36MS LJUBIBIC:  Yes, Your Honour, it's opposed.

37HIS HONOUR:  Yes.

38MS LJUBIBIC:  It's my submission that this order would not be in the public interest.  In order for it to be in the public interest a sample must be really likely to either deter the offender from further offending or to assist in the detection of further crime.  There's no reason, really, to suggest that either of those objectives would be achieved in this case.  The offender here has no criminal prior history and that's often an indicator of how an offender will behave in the future, their past behaviour.  So here he's not - he comes before the court for the first time and this is, as I made extensive submissions about before, a unique set of circumstances which precipitate this offending and that led to it.  There's no reason, really, to suggest that he would now after being given this chance, a good behaviour bond to comply with, that he would now go out and get involved in criminal activity that would need to be detected or that he'd need to be deterred from.  Those are my submissions.

39HER HONOUR:  Ms Bate, did you want to respond?

40MS BATE:  Your Honour, as I stated in my submissions before, whilst this is at the lower end of the scale, in terms of the gravity of examples of arsons offences, arson is generally regarded as a substantial offence, in any event and it is in the public interest to make that order.

41HER HONOUR: All right, thank you. I'll just add to my sentencing remarks. Notwithstanding it is a serious crime I do consider that this behaviour reflects behaviour at the lowest end of the scale for this serious offence. I have had regard to the matters that I have referred to already in exercising my discretion, pursuant to s.8 of the Sentencing Act in relation to the non-recording of a conviction and I consider that that combination of unique factors also comes into play when giving consideration to whether or not the public interest would be served by the taking of a forensic sample.  In all the circumstances, I refuse the order.

42MS BATE:  As Your Honour pleases.

43HER HONOUR:  I will ask you to release Mr Lord and let him come up to the Bar table, next to his counsel. 

44Raymond, the formal order of the court, is that there has been a finding of guilt against you in relation to the charge of arson.  But what I am doing is I am placing you on an adjourned undertaking that you be of good behaviour and that will go for two years.  But because the two years finishes on a Saturday the actual order goes until the Monday.  So it is from today's date until 5 October 2020.  In those two years you must be of good behaviour and not reoffend.

45OFFENDER:  Yep.

46HER HONOUR:  Otherwise you would breach your undertaking and you would be asked to come back to the court and I would have to deal with you in relation to that, all right?  And you could be punished for any offence that has been adjourned, so you could be again punished for the arson charge.  So your punishment would be reconsidered and also you could be punished for failing to be of good behaviour and also possibly fined.

47OFFENDER:  Yep.

48HER HONOUR:  So do you understand that?

49OFFENDER:  Yeah ‑ ‑ ‑

50HER HONOUR:  It is a serious undertaking.

51OFFENDER:  Yeah.

52HER HONOUR:  It is an undertaking you are giving to me that you are going to be of good behaviour for two years.

53OFFENDER:  Won't be coming to this place again.

54HER HONOUR:  All right.  Well, look, you are an impressionable young man, so it is not going to be easy.  But I sense that you are a very mature young man, notwithstanding your actions on this occasion ‑ ‑ ‑

55OFFENDER:  Stupidity.

56HER HONOUR:  ‑ ‑ ‑ were stupid and very immature.  Obviously you were quite impressionable and vulnerable at that stage, but I, again, sense that that is not the situation currently.  You are doing very well.

57OFFENDER:  Move on and live life.

58HER HONOUR:  Yes.  Yes, and I would like to encourage you to continue to do well.

59OFFENDER:  Yeah.

60HER HONOUR:  Because you have a lot to offer, notwithstanding your pretty poor start in life that you have had from your family.  You have managed to ‑ ‑ ‑

61OFFENDER:  Get somewhere.

62HER HONOUR:  ‑ ‑ ‑ get on with life and get a place to live and a job.  So that's really important.

63OFFENDER:  Yeah.

64HER HONOUR:  I think you have got a lot of potential.  All right, so I will get you to sign that.  Once you sign that I will get a copy made for you and hopefully you will not come back before the court.

(Adjourned Undertaking signed and acknowledged.)

65Good, a copy will be made and provided to the parties and once that is obtained you're free to go, all right?  Good.  Thank you, thank you both.

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