Director of Public Prosecutions v Lorenzana

[2016] VCC 236

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01835

DIRECTOR OF PUBLIC PROSECUTIONS

v

LORENZO LORENZANA

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2016
DATE OF SENTENCE:	17 February 2016
CASE MAY BE CITED AS:	DPP v Lorenzana
MEDIUM NEUTRAL CITATION:	[2016] VCC 236

REASONS FOR SENTENCE
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Subject:                   CRIMINAL LAW
Catchwords:           Sentence – arson – stalking
Legislation Cited:    Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited: R v Mazur [2000] VSCA 111, DPP v Derby [2007] VSCA 92, R v Verdins [2007] VSCA 102

Sentence:Convicted and sentenced to 18 months imprisonment and a CCO of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	Solicitor for the Office of Public Prosecutions
For the Offender	Ms W. Duncan	Allan McMonnies

HIS HONOUR:

1Mr Lorenzana, you can remain seated, please, and what I have to do is, mainly for your purposes and your family and indeed the community, is to pronounce the reasons why I am sentencing you in the manner that I intend to.  It is also important should there be any need for another Court to consider these matters or anyone else in the legal field to consider the matters, that the matters are recorded.  So, what I will do is read my reasons and then ask you, when I am about to pronounce the sentence if you could be good enough to stand. 

2In this matter, Mr Lorenzo Lorenzana pleaded guilty to two charges in Indictment No.F12658032. That matter was heard in this Court on
8 February of this year when Mr Ballek appeared on behalf of the Director and
Ms Duncan appeared on behalf of Mr Lorenzana. 

3These crimes were committed when he was aged 28. He is now aged 29. He was born on 10 November 1986 and he is a disability support carer. The Indictment itself to which he has pleaded guilty to the two charges involve firstly, Charge 1, a charge on 19 July 2015, of stalking a former girlfriend of his. Such is an offence against s.21A(1) of the Crimes Act 1958 and indicative of its seriousness is the fact that Parliament has prescribed as the maximum penalty in regard to such offence a period of imprisonment of ten years.

4The second charge in the Indictment is a more serious charge and that is the charge of arson.  I say more serious because the maximum penalty prescribed in regard to that matter is a period of 15 years.  Such is an offence against 197(6) of the Crimes Act 1958. This crime was also committed on the same day.  It was related indeed to his former girlfriend because the property that was torched was owned by her father. 

5The property was located at in Ivanhoe.  The damage caused to the property is set out in the photographs in Exhibit B.  There was extensive damage.  The best that the Court could be advised is that the repairs are continuing.  Those repairs will be in excess of $100,000.  Apparently there is another five months or so to go.  Fortunately, it would appear that there was insurance in regard to the matter.  The learned prosecutor tendered as Exhibit A, a summary of the prosecution opening, and it was accepted by Ms Duncan that such opening recorded the facts appropriate to this matter.  It does require some reference. 

6At the time, Mr Lorenzana, because of his life conditions, was under support from an agency called North East Alliance for the Mentally Ill, NEAMI, indeed, he was residing in a house which they had arranged for him.  The relationship with his former girlfriend had been going from August 2014, a period of some ten months, when Mr Lorenzana himself ended the relationship in June 2005 following a disagreement.  It is noted that the victim had not been happy herself about the relationship, she states she was too scared to end it herself.  All contact was ceased until 15 July, approximately a little over a month later, when the victim’s father, saw Mr Lorenzana close to the property, but apparently with blood on his face, which made him somewhat concerned.  

7The next day, there was a text message received by the victim that
Mr Lorenzana had visited an EB Games Centre in Swanston Street Melbourne, where he usually went to see her.  That led to 18 July, when, because of her concerns with those circumstances, and no doubt related to her earlier feelings in the relationship, she went to the police at Heidelberg and proceedings were commenced for an intervention order. 

8The offending, as I said, took place on 19 July.  The background of that was that the victim, despite the concerns on the 16th, was on her way to the
EB Games Centre in the city when she was followed by Mr Lorenzana.  There was discussion, there were issues and problems in so far as him trying to communicate, she sought refuge in a ladies public toilet in Collins Street.  He pushed his way in.  Police were called.  He was angry at the circumstances, and passers-by got involved.  The end result was that she resisted any overtures by him for discussion.  Indeed, she in fact hit him and might in fact have kicked him at some stage.  She went later that day to dinner, it seems to me not insignificant that that dinner was to celebrate her 21st birthday. 

9After the incident, Mr Lorenzana caught a train from the city to Alphington.  He then went about buying at a 7-Eleven store a bottle of methylated spirits and then walked to the victim’s family home.  Fortunately at least he had the good sense to knock on the door to see if anyone was home, but of course that is never certain and demonstrates the risks associated with the crime.  There could well have been someone there who was sick.  He then proceeded to get into the bottom of the home and set the sub-floor alight.  As I say, the photos in Exhibit B demonstrate the serious consequences of this crime.  No doubt there were other potential consequences, but fortunately no person was injured. 

10The fire brigade were called.  Mr Lorenzana had moved away from the scene of the crime but found himself back there watching.  That appears to bear similarities to the actions of arsonists.  However, he was not arrested ultimately until the following Wednesday.  Prior to him being arrested, on the day after these incidents he had mixed some dangerous substances, apparently in an attempt to commit suicide, which is not unknown in his background. 

11That essentially is the broad bones of the offending.  What seems to stand out in regard to such offending is, when read with later materials which I will come to, is a lack of anger management by Mr Lorenzana, an inability to deal with rejection and a lack of what might be called in modern parlance relationship skills, or some deficits in all those matters.

12There is not only planning to this crime, but some deliberate intent by way of revenge in the sense that this fire takes place on the date of her 21st birthday.  I consider that cannot be a coincidence.  

13Anyone faced with their house being burnt in such circumstances would obviously suffer from trauma. That is exactly what is demonstrated in the two victim impact statements, firstly of the victim in Exhibit C, and her father in Exhibit D.  She speaks of the trauma and the apprehension that she still faces and the guilt that she no doubt suffers from the family home being burnt as a result of her relationships.  Her father equally speaks of the impact upon him, that he is really keen to move out if he could. The ongoing need to repair the premises, that he feels at least safe while Mr Lorenzana is in gaol.  It seemed to me nothing in those victim impact statements was exaggerated or inconsistent with the trauma that people suffer who are the victims of arson.

14The prisoner has served already by way of pre-sentence detention, I think it was 220?

15MR BALLEK: It is now 209.

16HIS HONOUR: 209 not including today?

17MR BALLEK: That is not including today.

18HIS HONOUR: Mr Prosecutor, what did we end up with the compensation?  Is there to be a compensation order signed?

19MR BALLEK:  The compensation order, I will not persist with at the application at this stage. We are still trying to ascertain the quantum.

20HIS HONOUR:  All right.  There is a compensation order going to be sought under the provisions of the Sentencing Act 1991 and that will no doubt take place in due course.  Importantly, Mr Lorenzana at the age of 28 when this crime occurred had no prior offences. 

21On the plea, Ms Duncan tendered a number of documents, being the report of Dr Turnbull, psychologist, dated 10 January 2016, Exhibit 1; character references of his two aunties, Exhibits 2 and 3; and a further reference with school certificates from his mother, Exhibit 4.  In addition to that, Ms Duncan's own written submission, which she spoke to as well, Exhibit 5. 

22Exhibit 1 is I think of importance in this case.  It is a report, as I have said, of the psychologist, Dr Turnbull.  It gives to the Court the history of
Mr Lorenzana.  He had consulted a number of agencies and therapists for psychological issues throughout his life, prior to this time.  It would appear that he had made a number of suicide attempts.  It was put that given his remorse and the time that he has been in gaol, he now fully understands that his relationship with the victim is now over.  He says he is not interested in any other relationships, but being only 29 no doubt they will come along, and clearly he is a person who needs to develop the skills to effect a successful relationship.

23Mr Lorenzana is being treated with anti-depressant medication which he takes on a daily basis.  During various forms of treatment, but in particular a notation of p.3 of the report, notes a report of a Vivian Pamela Pereira, psychologist, of 20 April 2010 where depressive symptoms had been noted and further, such was noted in an ongoing report of Dr Susan Kloot of 11 October 2011.  And then, Dr Bill Woods was treating him and, as reported in February 2015, over a range of symptoms and concerns, concerning self-harm, abusing medication for ADD and behavioural problems. 

24It is clear that he does not suffer from any psychotic injury.  There are, as said by the specialist, no psychotic features.  He is obviously a very intelligent person, but has these personal issues that seem to have plagued him for many years.  Those issues have led to him being at times somewhat dysfunctional in his life.  His history and the matter spoken of by both his mother and the aunties point to a dysfunctional family, problems with the father, allegations of violence which I might say the father was present when those matters were put and strongly denied it in Court, but I simply make those comments.

25Suffice to say that in 2007 an intervention order was obtained by
Mr Lorenzana's mother and since that time they have not lived together.  As I said, the references tendered - his auntie Lina Castrence, Olivia Bril and indeed his mother, seek from the Court leniency for Mr Lorenzana.  They jointly talk about him as being a compassionate person, as being a person who as a carer looks after his elder disabled brother.  They confirm his remorse, as has been demonstrated by the plea in this matter and the steps taken to improve himself by the various courses referred to by his mother and tendered with her reference, while he has been in prison.

26The scenario of his life and personal factors are of such a degree that it certainly complicates this particular sentence.  In the submissions of
Ms Duncan, as detailed in Exhibit 5, and as I said, orally before me, she stressed that he is fully accepting of the inappropriateness of his criminal behaviour and is apologetic for same.  It is clear, and I accept, that the explanation - no excuse, of course - but the explanation appears to be rooted in his psychological state. 

27I accept that while a R v Verdins [2007] VSCA 102 proposition was not put by way of reduced culpability, Mr Lorenzana's state is such that the last two aspects of Verdins are very important, and there will be issues for him in gaol as there has no doubt been to date, although he seems to have done quite well.  Ms Duncan submitted that, consistent with the character references, he is a caring person as demonstrated by his occupation, and that he has made an early plea demonstrated genuine remorse, and I accept that.  She also relied on the utilitarian benefit of such plea.

28Ms Duncan submitted given his background, given his acceptance of the seriousness of this matter and the actions he has taken in gaol, the support of this family, that as far as rehabilitation goes I can be confident that he will do his best.  She noted the six and a half, nearly seven months that he has already served and essentially sought from the Court a period of imprisonment, which she accepted given the seriousness of these crimes, must be part of the sentence, but sought an immediate gaol sentence combined with a community correction order, as is allowed for in the current Sentencing Act 1991, in s.44.

29In that regard I sought a report and, as I said, that report was positive.  That report is dated 8 February 2016, it was marked Exhibit E, and the conditions were detailed, should I be inclined to grant such a report, that the office would require.  The prosecutor in response to such plea accepted that the proposition put by way of immediate gaol together with a community correction order was appropriate in the circumstances, and such determination was not opposed by the Director.

30However, the learned prosecutor put that the period served by way of immediate sentence to date was simply not sufficient. It is noted that the provisions of s.41 of the Sentencing Act 1991 do not restrict this Court, given that this is a charge of arson, to a period of two years, and I am able to impose a community correction order, even if I impose a period of imprisonment over two years.  I was also given the Sentencing Snapshot in regard to arson matters, No.144, showing the median total effective sentence in regard to the matters of three years with a non-parole period median of 1.6 years.  Those matters are all obviously there to assist the Court in its synthesis of the appropriate sentencing matters.

31Taking all those personal factors into account of course, the problem for this Court is that it is dealing first and foremost with the very serious offence of arson.  The seriousness of such crime is firstly demonstrated by the fact that a 15 year sentence is imposed by Parliament as a maximum sentence.  This crime has some nasty aspects to it.  The actual victim, that is, the owner of the home, was totally innocent.  He, however, was the father of a woman, or his daughter had been previously been the girlfriend during a ten month relationship with Mr Lorenzana.  Albeit that Mr Lorenzana had stopped the relationship, according to the summary, the victim, when Mr Lorenzana tried to contact her thereafter, had refused to see him.

32As I said, in my view there is no coincidence that these crimes occurred on her birthday.  I have no doubt that because of the personal issues in his life, that the revenge effected by this crime was motivated by such issues, insofar as the breakup and the manner in which he had been treated on that day.

33The Courts, of course, take these types of crimes very seriously.  The matter was looked at by the Court of Criminal Appeal, very early on in its existence, in R v Mazur [2000] VSCA 111. A very strong Court of the then Winneke P, Brooking and Chernov JJA expressed the view that for the crime of arson, immediate imprisonment was appropriate. In particular, the comments of Winneke P at [26] to [27] strongly illustrate that general proposition.

34I was given during the hearing DPP v Derby [2007] VSCA 92, which was a majority decision, the majority Judges being Kellam AJA, as he then was, and Vincent J. There was consideration by them of the case of Mazur, the circumstances were not all that different - the cost of the building which had been destroyed in that case was some $95,000, it was a small flat.  Trauma caused obviously was equal.  The prisoner in that case had no priors and again had issues with anger and psychological issues. 

35These are, as expressed by that Court, serious examples of this type of crime and throughout that case the Judges analysed a series of cases concerned with the crime of arson.  The sentence was overturned, and what was stressed was, in almost all circumstances, the need for a period of immediate imprisonment.  There is no issue with this. 

36Probably, the distinguishing feature between this and Derby was that in that case, Kellam J was able to talk of the facts of the crime not being actually premeditated.  That of course is not here, given the circumstances; not that there was much planning, but there was planning to the extent of going to a shop and buying an accelerant and taking that to the home.  Equally, in the case of Derby there were no priors of the prisoner and that person had also developed insight. I think of particular importance is the statement at [46] of that judgment which says:

"It is apparent that, notwithstanding the subsequent expression of remorse, specific deterrence remains as an important sentencing principle in sentencing the respondent, as does general deterrence.  Regrettably, it is far from uncommon that one party in a domestic or other relationship, as here, takes out their anger, resentment and frustration upon the other party by destruction of property.  Those who do so, particularly by fire, should be under no illusion other than that they will face salutary punishment." 

37As I say, there has been no issue that such is appropriate in this case.  The Court therefore must necessarily balance all of those factors, both pro and against, that I have referred to in regard to determining an appropriate punishment for Mr Lorenzana, and hopefully I have done so to the appropriate degree.

38Mr Lorenzana, would you please stand?  

39In regard to the first charge of stalking, you will be sentenced to a period of imprisonment of six months.  

40In regard to the second charge of arson, you will be sentenced to a period of imprisonment of 18 months. 

41I do not intend to make any orders as to cumulation, that will make the total effective sentence one of 18 months' gaol. 

42Pursuant to s.44(1) of the Sentencing Act 1991, I accept the proposition put to me by your counsel that a period of immediate imprisonment followed by a community correction order would be appropriate in your case. I intend to impose a community correction order of two years, which will have attached to it all of the conditions recommended on p.1 of the report. That community correction order is to commence, as detailed in s.44(3) of the Sentencing Act 1991 upon your release from imprisonment. 

43In regard to that 18-month immediate gaol, I do not intend to set a non-parole period.  I declare that the 209 days of which you have spent on remand are deemed to be service of this sentence, and a declaration to that effect will be lodged in this Court.  

44I order that a s.464ZF order is appropriate and should be made.  As I have indicated, the compensation order will be made in due course.

45Pursuant to provisions of s.6AAA of the Sentencing Act 1991, the order that I would have made had you not pleaded guilty was a sentence of four years with a minimum of two years. 

46The end result of all of that in plain English, Mr Lorenzana, is this:  You have currently served just on seven months.  I have sentenced you to serve a period of imprisonment of 18, so you have another 11 months to serve.  After that you will have a period of a community correction order for two years thereafter which will have the conditions that have been discussed with you.  As I say, of that
18 months, 209 days you have already served. 

47It is necessary to make this clear to you that had you not pleaded guilty, the sentence which I would have sentenced you to would have been a period of four years with a minimum period of two years.  Do I need to clarify any matters about that?

48MR BALLEK:  (Indistinct words.)

49HIS HONOUR:  Ms Duncan?

50MS DUNCAN:  No, thank you.

51HIS HONOUR:  No Court likes to sentence a person as young as you, relatively young, and you have had issues in your life which I accept, but you have also committed a very serious crime.  So I hope that with the assistance of your mother and aunties that you continue to take the steps you have while in gaol and that when you come out, we never see you again in Court.  Good luck.  Thank you.  If you just remain there, I will get this order signed.  Take a seat, Mr Lorenzana. 

52Ms Duncan, it is always difficult when a community correction order is not going to operate for some time, but it has been indicated in the report that your client is fully aware of the conditions to be imposed and his obligations, but if I could ask you to go over that pretty clearly with him again.

53MS DUNCAN:  Thank you, I did this morning but ‑ ‑ ‑

54HIS HONOUR:  Yes.

55MS DUNCAN:  ‑ ‑ ‑ of course I will do it again.

56HIS HONOUR: Thank you.  Maybe I will stand down, Mr Ballek, while we get the next one.  Perhaps the prisoner can be taken away first.

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