Director of Public Prosecutions v Machhour
[2012] VCC 943
•11 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00082
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDULKHARIM MACHHOUR (aka AKRAM MACHHOUR) |
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JUDGE: | HIS HONOUR JUDGE WOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 18, 19, 20, 23, 24, 26, 27, 30 April, | |
DATE OF SENTENCE: | 11 July 2012 | |
CASE MAY BE CITED AS: | DPP v Machhour | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 943 | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – trial – arson, alibi, plea not guilty – aggravating circumstances; revenge – 4 years' imprisonment – 3 years non-parole period
LEGISLATION CITED –
CASES CITED – DPP v Bright [2006] VSCA 147; R v Mazur [2000] 113 ACR 67; DPP v Ralph [2004] VSCA 158; DPP v Derby [2007] VSCA 92; Quarrell v R [2011] VSCA 125
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D Manova | Solicitor for Office Public Prosecutions |
| For the Accused | Mr S Kenny | McNamaras |
HIS HONOUR:
1 On 2 May 2012, after a trial of eleven days, a jury of this Court convicted you of a count of arson, which offence was committed on or about 15 July 2007, where you damaged your wife’s home at 6 Lawry Place, Meadow Heights, by fire. This offence carries a maximum penalty of fifteen years' imprisonment. You have no prior convictions.
2 The circumstances of your offending are now summarised. Wafa Machhour and you were married in 1980. You are from Syria, whilst your wife is Lebanese. You have a daughter, who is now sixteen years of age. Together you purchased a property at 6 Lawry Place, Meadow Heights, which became the matrimonial home. Your wife and you separated on 5 February 2005 and were divorced on 21 March 2006. Thereafter, proceedings continued in the Federal Magistrates’ Court in respect of the former matrimonial home and other related property issues. At the time of the separation, you remained in the former matrimonial home and your wife and daughter went to live elsewhere.
3 Orders were made by the Federal Magistrates’ Court that you insure the house at your expense. Your former wife had concerns whether you had done so, and indeed on 23 January 2006, arranged for insurance with RACV. She paid the premium. The house was listed for sale in June 2006, but did not sell. Your former wife became concerned that you were running the house down physically in order to divert potential purchasers.
4 On one occasion when she visited the house, subsequent to your separation, Wafa returned to the house with a furniture van to collect furniture, but you had changed the locks and she could not obtain access to the house. You continued in exclusive possession of the property at all relevant times.
5 Besides being married, Wafa and you are related by marriage. Your sister, Ayda’s second husband is Wafa’s uncle. He, Michael Haddad and Ayda Haddad, separated in 2001. They had two daughters and a son; namely Julianna, Vivian and Andrew. Subsequent to their separation, Ayda and Wafa’s relationship grew strained. However, Wafa remained on speaking terms with her cousin, Rhonda, who is Wafa’s uncle’s daughter by his first marriage.
6 The Federal Magistrates’ Court conducted a hearing on 20 April 2007 in relation to the division of the matrimonial property. Four days later, you telephoned the RACV insurance and cancelled the insurance that your wife had taken out over the property, stating that the house was already insured with QBE and “double insurance is not good”. In accordance with your direction, RACV sent you a refund of the premium of about $200.
7 On 6 July 2007, the Federal Magistrates’ Court made an order in relation to the property, which order provided you with two options; either to pay Wafa the sum of $216,363.88 (being the assessed value of her share in the property) or to vacate the property and permit her to vacant possession in exchange for her indemnifying you from your obligations under the mortgage. The order required you to act on the option within 30 days.
8 After learning of the orders, Ayda visited you on Monday, 9 July 2007 and found you in a distressed state. The following day, being the Tuesday, Ayda returned to your home and indeed slept there that evening. On that day, being Wednesday, furniture was removed from the house under your instruction and according to Ayda, the house was not damaged; in particular, there were no holes in the walls. You slept at your sister’s place on the following three evenings; namely, Wednesday, Thursday and Friday, before departing for Syria on Saturday, 14 July 2007.
9 According to Ayda, you were in her company continuously, save for two occasions. Firstly, on Thursday, 12 July 2007, when you went to your house to collect some things and then on to a friend’s place for dinner, returning at Ayda’s house that evening, and Friday, 13 July 2007 for a period of 45 minutes to one hour in the morning, probably between 10.00 and 11.00 am when you went to Chadstone Shopping Centre to purchase a suitcase. Ayda stated it would take you at least one and a half hours to get from her place to your place using public transport as was your practice, so she stated. According to Ayda, you were in her company continuously at her place on Saturday, 14 July all day and departed for Tullamarine in order to catch a flight to Syria. You were driven to Tullamarine by your niece, Vivian, and your flight departed at about 6.39 pm that day. Vivian’s son and your sister, Ayda, were present during the course of the journey to Tullamarine.
10 The evidence is clear, both from Vivian and Ayda that you were deeply depressed and tearful during the time they saw you in the week commencing Monday, 9 July, through to your departure on 14 July 2007. Your distress was such that your sister made arrangements with her son, Andrew, to buy a ticket to visit relatives in Syria. The other purpose for your visit, according to your comments to police in the interview and the evidence of your sister, was to raise funds in the region of $30,000 to appeal the decision of the Federal Magistrates’ Court.
11 Vivian visited you at your home on Thursday, 12 July 2007, at her mother’s suggestion, to transport some of your personal belongings from Meadow Heights to your sister’s property. She, too, said you were distressed at this time. She stated to police that you were so angry that you punched a hole in the wall and when she tried to calm you down, you told her you would smash up the kitchen and bathroom and the walls and the carpet, so no one could live there, or buy the house. At trial, she denied seeing you punch a hole in the wall but stated there was a hole in the wall near the entry of the house, which you told her was caused by the removalists. I shall return to the evidence of Vivian later, because it is of significance.
12 After leaving you at the airport, Vivian drove to Ayda’s house where she left her son to be babysat and then travelled to her home in Brighton.
13 At 3.48 am on 15 July 2007, a fire was reported at your home to the Somerton Fire Station. Fire fighters forced entry through the front door, which was locked. They also found that the laundry door was locked. They broke out several windows in order to contain the fire and eventually extinguished it.
14 At about 10.15 am on Sunday, 15 July 2007, forensic chemist, George Xydias, attended at your property where he observed that rooms had been ransacked and vandalised, damage to sections of walls, doors and other fittings throughout the premises, in the form of many holes consistent with the use of a sharp instrument such as an axe or a hammer, flammable liquid spread through several rooms and along the central passageway, a large trail of partly burnt and evaporated liquid. He found two burnt toasters in two rooms of the house; one in the wardrobe of the master bedroom which had been connected to an extension lead running across the floor and plugged into a power point above the skirting boards, and another toaster in the kitchen pantry plugged into the extension cord from the master bedroom “piggy back style”. Between the power point and the extensions leads, he observed a twenty-four hour Arlec timer. He concluded that the timer was set to deliver power to the toasters at about 3.30 am on 15 July 2007 and thus it needed to be set within the immediate preceding twenty-four hour period. These toasters were badly burnt in the fire, though Mr Xydias described them as basic toasters. He could not say whether they were of a type whose mechanism was such that one could not depress the slide lever unless power was available to the toaster.
15 It was put by your counsel on a hypothesis that if the toasters were of the latter variety, the arsonist would need to secure a method of holding down the slide button notwithstanding that power was not being delivered in order for the timer to properly operate. In short, Mr Xydias could not say whether the toasters were of that variety or otherwise, although he described them, as I say as being standard. There was no other evidence as to the nature of these toasters.
16 In addition, Mr Xydias found trails of petrol in the carpet and concluded that from his observations that this petrol would have been deposited within twenty-four hours of his attendance at 10.15 am on Sunday, 15 July 2007. That is because of the estimated evaporation rate of petrol and thus such liquid would have had to have been deposited some time within the preceding twenty-four hours and notably at about 10.00 am on Saturday, 14 July at the very earliest.
17 Mr Cheshire, a fireman, stated the fire was mainly in the kitchen and the pantry. He observed a 5 litre can of petrol with its cap off in the main bedroom. On the top wardrobe shelf he found an oil can and oil also on the top shelf of the second and third bedrooms. He also observed cut marks in the wardrobe doors in bedrooms two and three. He stated that the main bedroom and the shared bedroom had severe fire damage. Mr Xydias observed on the top shelf of the wardrobe where the first toaster was found various oily and heavily sooted papers and a severely melted black container labelled “Castrol GTX2”. He also found in that bedroom a partly burned metal container labelled “Victa Mower Fuel”.
18 When interviewed by police, you told them that there were no flammable materials in the house and indeed your lawn mower and your lawn mower fuel were taken from the house before you left for overseas. Presumably, you took it to your friend’s place on Thursday, 12 July when you dropped off at his place various mechanical tools.
19 The informant, Detective Leading Senior Constable Costa, took a statement from Vivian at her home at about midday or shortly thereafter. During the course of this statement, Vivian made the following comments. On the Monday preceding your departure, you telephoned her and were hysterical, yelling, crying, stating you had lost the court case and that your ex-wife was getting the house. Secondly, that on the following Thursday, when she visited you, she saw you punch a hole in the wall, that on the afternoon of Friday, 13 July, her mother informed her, this being mid-afternoon, that you were not there and were “still doing things at his house”. That when she visited you on the Thursday, when she tried to calm you down, you told her that you had cancelled the insurance on the house. That after learning the house had been damaged, she recalled statements made by you to your sister over a year ago, that if you lost the property dispute, you would burn the house to the ground; that she said, “How would you do that?”, to which you said, “I would get someone else to do it.” Vivian stated she did not take you seriously at the time and added that she thought your sister and nephew may have heard you make threats. At committal, Vivian retracted or sought to modify these statements, the effect being an attempt to exculpate you from allegations she made in statements she gave to the police.
20 Of real significance was a revelation during the course of the trial that in the early hours of 15 July 2007, Vivian and her husband travelled from her home in Brighton to exit the Tullamarine Freeway in the vicinity of Bell Street and then to return back onto the highway about fifty minutes later and return home. During this fifty minute absence, a telephone call was made on Vivian’s husband’s mobile phone at 3.45 am to Ayda’s landline and another call at 5.00 am that morning from Ayda’s landline to Vivian’s mobile. The Crown case was that Vivian travelled at this hour of the morning to 6 Lawry Place to watch the fire and to report to her mother that the house was alight and then return home. This evidence was a revelation in the case and was inconsistent with three other accounts given by Vivian as to her movements at that time.
21 She presented as a very poor and unreliable witness. Your counsel put to the jury that it ought to disregard everything she had said. The Crown, however, maintained that the account she gave to police in her statement shortly after the fire was accurate and should be acted on.
22 I turn now to the alibi evidence provided by your sister, Ayda. Ayda was adamant that you were in her presence throughout the period Wednesday, 11 July until your departure to Syria on 14 July, being the Saturday, with the exception of the two periods; namely, the afternoon of Thursday, 12 July and the morning of 13 July. She was adamant that you did not leave the house on 14 July, the date of your departure.
23 When interviewed by police, Ayda stated that she received death threats from a person she suspected as being Wafa’s lover. These death threats were in respect of you and she informed the police officer that she received these calls on a mobile phone 0411 874 594. That phone number was registered to a person, Rin Haydar, at 22 Kabareen Drive, North Kaminar, Victoria, 3175. This number is different to another mobile number which Ayda gave to Mr Kosta. During her evidence, Ayda denied any knowledge of the Rin Haydar phone.
24 The prosecution contended that the Rin Haydar phone was operated by Ayda and that Rin Haydar and Ayda were one and the same. This issue loomed as very significant in undermining the credit of Ayda Haddad and the Crown relied upon it to prove beyond reasonable doubt that Ayda provided a false alibi. In short, the telephone records recalled that that mobile phone number was used to telephone Ayda’s two daughters, Julianna and Vivian, her step daughter, Rhonda, her son and yourself during the period 10 July 2007 to 17 July 2007. Those records reveal that the Haydar mobile phone was used to telephone you on four occasions on 13 July 2007, between 2.00 pm and 6.34 pm; these being times when Ayda said she was in your presence. Clearly, there was no occasion to use a mobile phone to contact each other whilst you were in the same house.
25 Of greater significance, perhaps, is a call on the Haydar phone to you at 10.28 am on 14 July 2007. The Crown case is that at this time, you were laying the fuel at your home, to which I have already referred.
26 Rhonda stated that Ayda telephoned her and told her to ring Wafa’s daughter and tell her, “If she wants to know why her dad did this, I'll explain to her, if Wafa wants to catch him, let her catch him.” The Crown case was that this evidence is inconsistent with Ayda’s alibi for you and, to the contrary, shows that she knew it was your intention to cause the fire and believed that you had acted on that stated intention.
27 You returned to Australia about fourteen months after the fire and were interviewed by police on 6 November 2008. You stated that you learnt of the fire from your brother about two days afterwards and that your sister, Ayda, had telephoned him. Your brother told you not to worry about looking for money for the appeal because the house had been burnt. You stated you did not know at that time whether the house was insured and denied having cancelled the insurance and when informed that the insurance company had records of such conversations, you still maintained that you did not cancel the insurance. This, the prosecution contended, was an implied admission of guilt, being a lie.
28 You stated that on your departure, you locked the house and did not give the keys to anyone but denied having changed the locks. You maintained that Wafa had one set and you had the other. You denied causing damage to the house and in particular denied causing the fire. You confirmed Ayda’s evidence that you had been threatened by Wafa’s lover, whom you identified by name. You stated that you had no intention of lighting the fire because you loved the house and you were going to appeal the decision, and presumably win, so therefore you reasoned, why could it be said that you had a motive to light the fire?
29 The jury retired for a period of over two hours, following my charge. They returned at 10.00 am the following morning and one hour later I took their verdict.
30 The case against you was an overwhelming one and it is a tribute to the dedication and resourcefulness of the investigators, particularly Detective Leading Senior Constable Kosta, in tracking down some almost five years later Citylink and telephone records which served to demonstrate that both Vivian and Ayda gave false evidence. I am of the view that both of them perjured themselves and I have requested the Director of Public Prosecutions to examine that issue thoroughly.
Personal Circumstances
31 You were born in Homs, Syria on 10 January 1952 and are the youngest of five brothers. You have an older sister and two younger sisters, the youngest being Ayda. Apart from Ayda, your siblings live overseas and one is deceased. Your parents are also deceased. You were educated to the equivalent of Year 12 in Syria and then attended the Friendship University in Moscow between 1972 and 1978, where you graduated in mechanical engineering and the Russian language and then did a Masters Degree in Mechanical Engineering.
32 Upon your return to Syria, you opted to work in Saudi Arabia for five years, which employment in part excused you from compulsory military service. I say in part because you were obliged to pay the government some $5,000. After your time in Saudi Arabia, you returned to Syria where you worked for a further three years until you emigrated to Australia in 1988. Your sister, Ayda, had emigrated here some twelve years earlier.
33 You met your former wife, Wafa Haddad, in 1976. She is Lebanese. She accompanied you to Saudi Arabia and to Australia. Upon your arrival in this country, you lived with your sister for some months and undertook an English course at TAFE for some eighteen months. The recession of 1990 made it difficult for you to obtain employment and you worked at Ford as a contract engineer for a couple of years following which you established your own business initially as a mobile mechanic between 1993 and 1998. Thereafter, through the facility of Mr George Awad, you operated an independent motor mechanic’s business at his service station. That arrangement finished following the breakdown of your marriage in February 2005. You have not worked since. Wafa and you married in Syria in September 1980. Your daughter, Latifi, was born in 1996, a special event because your wife found it difficult to become pregnant, but did so after she received donor eggs.
34 In 1998, you purchased a property at 6 Lawry Place for $35,000. The marriage was a happy one, it seems, until about 2005 when, according to you, you discovered that your wife was conducting an extramarital affair. Wafa left the matrimonial home taking Latifi with her, though in recent times Latifi has left her mother and resides with you and your current wife, Myriam Nasser.
35 As I have stated, you left Australia in July 2007 to return to Syria. There you met your current wife who is nine years your junior and a pharmacist by profession. You married her on 4 October 2007 and thereafter she closed her pharmacy business and together you returned to Australia on 4 October 2008. Upon your return, you lived with your sister. Thereafter, together with your wife, I gather from resources from her assets in Syria, you purchased a house in Roxburgh Park in early 2009. After searching for your daughter, Latifi, you met her at a shopping complex in late 2009 and spent a couple of days with her over the Christmas period 2009 and again in Easter 2010. On 25 April 2010, your daughter came to live with you and your wife, where she remains at present and attends a local secondary college.
36 In May 2009, your wife was diagnosed with breast cancer and had a mastectomy. Reports of her general practitioner, Dr Eisa, dated 5 June 2012 and Dr Goh dated 29 May 2012, were tendered from which it would appear that this surgery took place in late May or early June of 2012.
37 Latifi attends Year 11 at high school and I am informed that you have concerns that her outlook is such that she may quit school. Moreover, you have obvious concerns for your wife and her recovery, aggravated by the fact that she speaks little English.
38 It was not submitted by your counsel, and properly so, that these circumstances constitute exceptional hardship, such as would justify a more lenient sentence. Rather, it was submitted that the circumstances are relevant to your frame of mind because those circumstances will burden you during the time your are in prison. To that extent, it was submitted, and I accept, that your punishment must be mitigated because your time served carrying such burdens will be greater upon you than would be the hardship of a person without such burdens. I have made allowance for this factor.
39 Testimonials under the hands of George Awad, George Salloum, Father Aphram, Mrs Ghali and your nephew, Andrew Haddad, were all tendered.
40 Mr Awad has known you for twelve years and, as I have mentioned, he operates a service station where you conducted your business. He attests to your generous nature, your kindness, the fact that you are honest and trusted. He notes that you left your business with the marriage breakdown and the attendant court proceedings which have, as he put it, “taken their toll on Akram and have worn him down psychologically”.
41 Mr Salloum represents the Syrian ethnic community in Victoria and he has known you for twenty-years. He has visited you whilst you have been incarcerated and during his visits you have expressed your concern for the health of your wife and your daughter.
42 Father Aphram has known you through the Syrian Orthodox Church for some twenty years. He assesses you to be of good character and honest. He concludes with the statement: “I believe the charges against him have affected his mental, physical and emotional state. He had not taken this lightly and increases his stress, worries and anxiety especially after his wife was diagnosed with breast cancer”.
43 Mrs Ghali has known you for ten years and is your pharmacist. She is now a close friend of your current wife, as they studied pharmacy in Syria. It is her opinion that your separation from your first wife and more particularly your daughter have had a dramatic effect upon you. She considers you to be well respected in the community and the charge of arson definitely out of character.
44 Your nephew, Andrew Haddad, has known you since you came to this country in 1988. Mr Haddad is Wafa Haddad’s first cousin. He describes you as a father like figure to him and attributes credit to you for assisting him in his successful career in IT, having obtained a Bachelor of Computer Systems Engineering from RMIT. Mr Haddad describes the closeness of your relationship with your daughter and it is apparent that Latifi left her mother’s home in April 2010. In conclusion, he states: “He has always been a compassionate, loving and beautiful man.” I note Mr Andrew Haddad has been present for parts of the trial, was present for the plea hearing last week and, indeed, is present in court this morning. It is a mark of his regard for you that he has attended on these occasions, so it would seem to be obvious.
45 As I remarked earlier this morning when I entered the court to sentence you, Mr Kenny, your counsel, handed to me a testimonial under the hand of Dr Adel Beshara, who gives a professional address at the University of Melbourne in the Department of History. She has known you for twenty years, assesses you to be polite, responsible, extremely kind and well regarded among your peers. She states that you are a person of good moral character and that you are decent "at the core". She attests to your hard work, integrity and good will and states that you have many friends, all of whom respect you.
46 Your former wife, Wafa, swore a Victim Impact Statement on 25 June 2012. She describes the destruction of her home as “heartbreaking”. In particular, she lost family photographs. She experiences trouble in sleeping and suffers from nightmares. She states that she is under stress constantly and is sick most of the time, requiring taking sick leave from work. Because she is a casual employee, she does not get paid during this time.
47 As a consequence of the fire and Wafa’s inability to cope with the various trades due to her emotional state, the house was sold in a fire damaged condition. The RACV, as an ex-gratia payment, paid $35,000. In addition, the Federal Magistrates Court ordered you pay your former wife, Wafa, another $50,000 by way of damages done to the home.
48 A report of Mr Bernard Healey, clinical psychologist, who saw you on 16 June 2012, was tendered. It is detailed insofar as your personal circumstances are concerned and much of the material which I have referred to already is contained in this report. Mr Healey conducted various tests and determined you had an average IQ but that personality testing indicated depression (for which you are prescribed medication), anxiety and a mild paranoid trend. However, he concludes you have no major health problems other than medication for your depression.
49 Mr Kenny, your counsel, took me to the sentencing snapshot of the Sentencing Advisory Council for offences of arson between 2005 – 2006 and 2009 – 2010 and drew to my attention that over that period, 140 people were sentenced for arson of whom 51 per cent were given an immediate custodial sentence. Forty per cent received periods of imprisonment, of whom 22 per cent were wholly suspended. The median sentence was two and a half years' imprisonment. However, these statistics do not inform whether the prisoner pleaded guilty or was convicted at trial, namely the prisoner in those statistics.
50 The prosecutor referred to decisions of the Court of Appeal in DPP v Bright [2006] VSCA 147, R v Mazur [2000] 113 ACR 67, DPP v Ralph [2004] VSCA 158, DPP v Derby [2007] VSCA 92, and Quarrell v R [2011] VSCA 125. The last decision, as the prosecutor contended, is of limited assistance. In Mazur, President Winneke stated (at page 74):
“… courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate.”
51 In Ralph, the President Winneke commented:
“Arson is a serious crime in this State's calendar, which not only has the capacity to severely impact upon the sense of security of its immediate victims, as occurred in this case, but also is destructive of the sense of safety and security of those who are indirectly affected by it, as likewise in this case were the neighbours. This crime was, I think, a serious example of its type. It was committed for no better reason than to exact revenge upon the person who had demonstrated loyalty to the respondent and restraint in the face of his unacceptable habits.”
52 In DPP v Derby, in the judgment of Kellam AJA, as he then was, His Honour reviewed various sentences for this offence and, whilst recognising (in paragraph 34) that each case must be considered in the light of circumstances applicable to it, stated:
“this Court has stated consistently that arson is a serious crime indeed, and that circumstances which justify other than an immediate custodial sentence will be rare.”
53 The cases of Ralph, Bright and Derby have common aspects in that all accused were intoxicated at the time of the commission of the offence, all had as their motive, revenge, and all pleaded guilty. Moreover, each case was a Director’s appeal and the principle of double jeopardy was applicable.
54 Clearly, your motive was revenge. This is an aggravating factor. Your offending is further aggravated by the fact that, rather than a spontaneous drunken decision, it was a measured premeditated one in circumstances where you cancelled an insurance policy over the premises, employed a sophisticated method to ignite the fire which ignition occurred when you were outside this country, and was designed to thwart an order of the Federal Magistrates’ Court in favour of your former wife.
55 Based upon these snapshots and the cases to which I have referred, the learned prosecutor at my invitation submitted that a range of three and a half to four and a half years with a non-parole period of between two and three years was appropriate, recognising the need for general and specific deterrence, denunciation on the one hand and your rehabilitation on the other.
56 However, in respect of your rehabilitation, it must be noted that you do not admit responsibility for your offending and during the course of an interview with police, insinuated that your former wife was responsible for the fire. Moreover, in Mr Healey’s report there is no suggestion of any remorse on your part, and indeed consistent with your counsel’s plea, you did not acknowledge remorse, rather than to acknowledged that on the jury’s verdict there be aggravating circumstances of premeditation and revenge were made out.
57 Mr Kenny relied on your previous good character, your solid work history, the low risk of reoffending that you presented and set your offending in the context of a marriage breakdown exacerbated by the separation from your beloved daughter. He submitted that you were depressed by these circumstances and that your judgment was thereby impaired. Of course, that is no excuse for your offending, but I do accept that your depression at the time of your offending contributed to it, which depression has continued, up to this date, the date of sentence, some five years later. To that extent, it is my view that Verdins' principles are applicable and that contrary to the prosecutor’s submission there is a nexus between your mental state at the time of your offending in your commission of this offence. Thus general and specific deterrence must be moderated.
58 Your offending is more culpable than that of Ralph, Bright and Derby whose offending needs to be seen in the light of an unpremeditated opportunistic offence committed whilst intoxicated. Moreover, as I have said, each of those prisoners expressed remorse through their pleas of guilty. In my view, the paramount sentencing principle in this case is general deterrence, although I am satisfied that you will probably not reoffend in this way.
59 The denunciation of your conduct is also significant because you put at risk the safety of other members of the public and their property. Balanced against those circumstances, you will pay a big price for this offence for a man without prior convictions who but for these circumstances would have led, in my judgment, a blameless life.
60 Because of your impending incarceration, you will be further burdened by the lack of day to day contact and enjoyment with your daughter and your current wife and I have moderated the sentence accordingly.
61 Your will be convicted and sentenced to a term of four years’ imprisonment. I set a non-parole period of three years.
62 I declare that you have served 69 days of this term in pre-sentence detention and this period is to be reckoned as time served under the sentence which I have, this morning, imposed.
63 Finally, I make an order pursuant to s 464ZF of the Crimes Act that you supply a sample of your saliva to be retained on a database on the grounds that the offending is serious, is not opposed and that the order rests in the public interest.
64 Madam Prosecutor and Mr Kenny, is there anything you wish to raise with me?
65 MR KENNY: No, Your Honour, may it please Your Honour.
66 HIS HONOUR: Remove the prisoner, please.
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