Director of Public Prosecutions v Lowe (a pseudonym)

[2019] VCC 1680

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL LOWE (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2019
DATE OF SENTENCE:	17 October 2019
CASE MAY BE CITED AS:	DPP v Lowe (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1680

REASONS FOR SENTENCE
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Subject:         Criminal Law
Catchwords: Plea of guilty- arson- theft-combination sentence- no prior convictions-unusual circumstances of offending- arson committed in context of protracted family law proceedings- general deterrence- community protection
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: Verdins; Buckley;Vo (2007) 16 VR 269
Sentence: Total effective sentence of 10 months imprisonment and Community Corrections Order for a period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Roper (For Plea)	Office of Public Prosecutions
Mr T. McCulloch (For Sentence)
For the Accused	Mr A. Marshall	James Dowsley & Associates

HER HONOUR: 

1Carl Lowe[1], late on Saturday afternoon of 30 June 2018, you, a 42-year-old man with no prior convictions, stole a 9 kilogram gas cylinder from the outdoor dining area of a café in Beaumaris and then used it to set fire to an adjacent childcare centre.  A passing motorist observed the flames and called emergency services.  The Metropolitan Fire Brigade attended and extinguished the fire but not before it caused extensive damage.

[1] This is a pseudonym.

2Closed-circuit television footage from the café led to your identification as the person who stole the gas cylinder and you were arrested the next morning.  You admitted your conduct and consented to police searching your apartment, which was above a shop next to the café.  You showed police how you had hidden your clothes from the night before inside a garbage bag, which you had placed inside the lining of a couch.

3Other than a geographical nexus, you had no connection to the childcare centre or its owner and attributed your actions to anger at your ex-wife over child custody arrangements. 

4Before me you pleaded guilty to one charge of arson and one charge of theft, offences which carry maximum penalties of 10 years and 15 years respectively.

5In arriving at an appropriate sentence for your conduct I am required to have regard to all the factors set out in s.5(2) of the Sentencing Act1991.  These factors are sometimes overlapping and sometimes contradictory in nature.  Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

Gravity of the offending and moral culpability

6Arson is a species of criminal damage distinguished from other types of criminal damage in the Crimes Act1958.  It attracts a higher penalty, 15 years as opposed to 10.  Over the years there have been numerous judicial pronouncements as to the fact that arson is a serious crime. 

7The most recent Sentencing Advisory Council Statistics[2] (May 2019) indicate that arson usually attracts a term of imprisonment with past terms ranging from less than one year to a maximum of 14.5 years with a median length of three years.  A community corrections order is the next most frequent sentence imposed. 

[2]As at May 2019

8Clearly no two cases are ever the same; however, counsel were not able to point me to any cases of arson even similar to this case, and nor have I been able to find one.  This is not surprising given the highly unusual circumstances of your offending.  Your counsel did, however, submit that ‘a custodial sentence for arson is not a foregone conclusion’.  I accept that this is so and, further, that current sentencing practices is just one of the factors I must take into account.

9That said, I am not persuaded that your offending is at the very low end of the spectrum of seriousness for this offence.  To the contrary, there was a degree of planning and premeditation, even if only of short duration, the damage was considerable and your moral culpability high.

10After stealing the gas cylinder, you immediately attended the childcare centre, where you smashed a window and threw the cylinder inside.  You then reached inside, turned the release valve on and lit a match to ignite the vapours.  Upon seeing the flames take hold, you did nothing to ameliorate the consequences of your actions or to indicate immediate remorse, for example, by calling emergency services.  Rather you returned to your apartment and later hid the clothes you had been wearing.

11A quotation for repairs to the building put the total cost of reinstatement at $226,299.88 cents.[3] 

[3]Exhibit B

12You told police that you knew that the childcare centre was vacant and that you would not have done what you did had it been occupied.  There are two things to say about this.  First, intentionally setting fire to the building was serious enough even if it was vacant.  

13Secondly, the building was not vacant.  At the plea your counsel accepted the assertions in the Victim Impact Statement of Beverley Jennings (the owner of the childcare centre) that the business was a going concern and further that the night before the fire she had been in the centre attending to end of financial year paperwork which she was intending to finish over the weekend.[4]

[4]Ms Jennings was present in court during the plea hearing.

14You told police you had only been living in your apartment for about two weeks prior to the offending.  This was hardly enough time to form a proper view as to the status of the business and your stated conclusion was clearly wrong. 

15I accept that you believed that no one would be inside the centre at the time that you set fire to it, however I am satisfied that at the very least you were reckless as to whether the centre was vacant or not.  As the childcare centre was in a populated area, you were also reckless as to the wider danger posed by your actions to nearby properties and persons. 

16The reason for your conduct is obscure.  On the day of your offences you learned that your wife was seeking full custody of your children.  You told police you were angry and frustrated at the custody and access arrangements.  However, there was no logical reason for you to target the owner of the childcare centre who in no sense was responsible for your predicament.  Further, your actions were entirely self-defeating as they resulted in you losing contact with your children altogether. 

17In the lead-up to the offences you were apparently stressed and sleep-deprived as a consequence of writing a university thesis and had ceased your prescribed medication, Endep, which you claimed caused your behaviour to become erratic.  Your counsel did not attribute the offending to your cessation of Endep. 

18Two reports from psychiatrist Dr Lester Walton were tendered at your plea.  Dr Walton assessed you as having normal intelligence with no intellectual compromise, although he considered that you were likely suffering from depression at the time of the offending.  Quite properly, in my view, your counsel disavowed any reliance on Verdins[5] insofar as your moral culpability is concerned.

[5]Verdins;Buckley;Vo (2007) 16 VR 269 at [32].

Impact of your offending

19In addition to the physical damage to the building, in her Victim Impact Statement Ms Jennings attested to the emotional and financial effect upon her, and indeed others, of your crimes.  Staff were laid off and the community lost a childcare centre.  She described her heartache at closing her business after 32 years because she did not feel capable of reopening after such an interruption at her age. 

Plea of Guilty, cooperation and remorse

20You were immediately cooperative upon being apprehended by police the next day, although it must be said the case against you was strong. 

21I am satisfied that you indicated your intention to plead to these offences at the first reasonable opportunity, that is, after your lawyers established that a defence of mental impairment was not available.  You in fact pleaded guilty at the second committal mention on 10 December 2018 and the matter proceeded by way of straight hand-up brief. 

22In pleading guilty at that early stage you have facilitated the course of justice and taken legal responsibility for your crimes.  Witnesses have been spared the experience of coming to court to give evidence. 

23It is often difficult to distinguish remorse from regret.  I accept that you very quickly regretted your actions.  The day after your arrest your mental state was such that emergency mental health services were contacted.  However, your expressions of regret to the interviewing police and Dr Walton on 3 December 2018 focused on the effect of your crimes upon yourself, not anyone else.  It was not until you saw Dr Walton again on 28 May 2019 that you mentioned the impact of your crime on others.  I accept that you now recognise this impact and are remorseful.

24Your cooperation and early plea of guilty entitle you to a utilitarian discount in sentence.  Your remorse entitles you to a greater discount.

Background and personal circumstances

25Your background and personal circumstances were set out in detail in the amended defence submissions tendered on your plea and marked as Exhibit 6.  Very briefly, you were raised in suburban Melbourne by your parents.  You have two siblings with whom you have little to no contact.  You were bullied at school and left school at age 16. 

26You have a steady employment history, having worked in a range of jobs including carpentry and property maintenance, finance, debt collection and infrastructure.  You have worked in management roles.  Immediately prior to and after these offences you were employed as a gambling counsellor at Crown Casino.  You have also volunteered at Alcoholics Anonymous and Men's Shed. 

27In Easter this year you left Beaumaris and moved in with your parents in Wonthaggi where you have gained work for a display home business after a period of unemployment.

28You met your wife in your late 20s and together you had two children.  You separated in 2014 and whilst your financial affairs were quickly resolved, you have been involved in protracted proceedings in the Federal Circuit Court in relation to the parenting of your children.  You have found these proceedings very stressful and currently you have no contact with your children.  The proceedings are, apparently, being held in abeyance until the outcome of this matter.

29You have a number of health issues.  You had a serious car accident when you were 22 from which you took months to recover.  In about 2005 you fell from a building and sustained serious injuries including a broken neck, back, foot and ribs and punctured liver with a lengthy recovery.  This incident led to you becoming addicted to painkillers, but you have not used them for three years.  You also misused alcohol around this time and again more recently, however you ceased drinking in May this year.

30In September 2017 you were diagnosed with testicular cancer, but after a period of treatment you are now in remission.  You were first prescribed Endep about 14 years ago, for anxiety and nerve pain, and continue to take it. 

31Dr Walton has assessed you as suffering from an ongoing depressive disorder.

Your character and risk of reoffending

32You have no prior convictions and only one subsequent matter which is unrelated and was dealt with by diversion.  You have a good employment history and have also performed voluntary work.  You are entitled to be sentenced as a person of otherwise good character. 

33After the offences you took steps to address your mental health and excess alcohol consumption.  You attended your doctor and resumed your Endep medication and also sought counselling, including attending Alcoholics Anonymous.  You have the support of your parents. 

34All these matters are cause for optimism for your future, as is your remorse and plea of guilty.  On the other hand, the fact your conduct is essentially unexplained makes it hard to be confident that you will not offend again. 

35On balance, I consider your prospects of rehabilitation to be good, especially if you actively continue to address your mental health and alcohol issues.

Purposes of sentencing

36In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed.  These are just punishment, deterrence, rehabilitation, denunciation and protection of the community from you.  A custodial sentence must only be imposed as a last resort.

37The prosecutor submitted that a combination sentence, that is, a term of imprisonment followed by a corrections order, would be within range.  Your counsel submitted that this was an exceptional case and that the imposition of a community corrections order alone would satisfy the sentencing purposes.  I do not agree. 

38I acknowledge that a community corrections order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes, however, in my view, nothing short of an actual term of imprisonment would satisfy the purposes of general deterrence, denunciation and just punishment in this case.  The offending is just too serious and the mitigating circumstances not sufficient to justify any other form of punishment.

39There is need for this court to send a clear message to any other individuals in the community who might be minded to commit arson, for whatever reason, that if they do they will receive condign punishment. 

40I also consider that some degree of specific deterrence and community protection is required, given that your offending remains unexplained.

41Having said that a custodial sentence is warranted I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes.  I also take into account that your depressive illness will make incarceration more onerous for you than others and that incarceration may aggravate your depression. 

42In my view, all sentencing purposes can be achieved by a sentence of imprisonment followed by a community corrections order.  I have had you assessed for such an order and you have been found suitable.  Given that I am imposing an actual term of imprisonment I do not consider that the corrections order needs to have a work component.  Rather its primary purpose will be to facilitate your rehabilitation and, in so doing, protect the community. 

43Because of the nexus between the theft and the arson I will impose an aggregate sentence in respect of both offences.

Sentence

44Could you stand, please, Mr Lowe.

45On the charges of theft and arson I convict and sentence you to an aggregate term of imprisonment of 10 months. 

46On both charges I also impose a single community corrections order.  The order is to commence upon your release from prison; it will last for 12 months. 

47You are to report to the Moorabbin Community Correctional Centre within two days of the order commencing.

48As well as the mandatory conditions, and there are a number of mandatory conditions for every community corrections order, there are extra conditions that I have imposed in this case:

·You are to be under the supervision of a Community Corrections Officer;

·You are to undergo assessment and treatment for alcohol;

·You are to undergo assessment and treatment for mental health; and

·You are to undergo assessment and treatment for programs to reduce your reoffending.

49Your counsel will explain that order to you in more detail, but you must make sure that you comply with the order, because if you breach it not only is that an offence in itself, for which you can be punished, but also you render yourself liable to be resentenced for these offences.  Now, obviously if resentencing were to occur a court would take into account the punishment that has already been imposed, namely the term of imprisonment and also the extent to which you complied with your corrections order.  But you do not want to be resentenced and you do not want to face another charge of breaching a corrections order, so just make sure you comply with that when you are released from prison.

50There is no pre-sentence detention.

51I indicate if you had not pleaded guilty to these offences and if you had proceeded to trial and been found guilty by a jury, I would have sentenced you to a term of imprisonment for two years with a non‑parole period of 18 months. 

52I will have that order taken up to you for you to sign, that is the corrections order.  Do you understand the terms of that order?

53OFFENDER:  Yes.

54HER HONOUR:  Do you want to go up with him?  Yes, thank you, Mr Marshall.

55MR MARSHALL:  I've explained that order to my client.

56HER HONOUR:  Yes, thank you.  Now, in terms of custody management issues, this is Mr Lowe's first time in custody, so that needs to be noted.  I think, Mr Lowe, did you want to speak to Mr Marshall ‑ ‑ ‑

57OFFENDER:  No, my mother.

58HER HONOUR:  All right.

59OFFENDER:  She's not breathing properly.

60HER HONOUR:  Right.  Mr Lowe, are you still taking Endep?  Any other medication?  Any other matters you want me to have noted into the records?  Right.

(Short adjournment.)

61All right.  Now, Mrs Lowe[6], you're all right?  What I was in the process of doing was just the custody management issues and I've noted the Endep.  First time in custody.  I don't think there was anything else.

[6] This is a pseudonym name.

62MR MARSHALL:  No, Your Honour.

63HER HONOUR:  So that just leaves that question of the 464ZF sample.  Have you spoken to your client about that?

64MR MARSHALL:  I haven't, Your Honour.  I apologise.  If I could do so very quickly now.

65HER HONOUR:  Yes, certainly.  We'll give you a copy of the order if you like.  Do you want to have a look at it?  But it's just obviously it's a sample of saliva, otherwise blood but saliva it would normally be. 

66MR MARSHALL:  Sorry, Your Honour.  I did speak to my client about it.  It won't be opposed.

67HER HONOUR:  So not opposed?  Yes.  Right, Mr Lowe, just one more thing if you could just stand up, please.  So there's an application before me to make an order that you undergo a forensic procedure, so what that means is a scraping from your mouth.  They can also do a blood sample if they need to essentially, but if you consent to a scraping from your mouth there should be no issues.  From that, DNA is extracted.  It's put onto a database. 

68So I'm making that order, having considered the seriousness of the circumstances of the forensic sample offence, which is the offence before me of arson, or two offences of arson and theft.  I'm satisfied in all the circumstances the making of the order is justified because of the seriousness of the circumstances of the offending.  The order's not opposed and the granting of the order is in the public interest. 

69Now I need to inform you that if you do not consent to the taking of a mouth scraping, which will be under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to do that.  Right, do you understand that?

70OFFENDER:  Yes.

71HER HONOUR:  Yes, all right, thank you.  Yes, if you could remove Mr Lowe, thank you.

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