Director of Public Prosecutions v Maddocks

[2019] VCC 188

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01968

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID MADDOCKS

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 February 2019
CASE MAY BE CITED AS:	DPP v Maddocks
MEDIUM NEUTRAL CITATION:	[2019] VCC 188

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Kretzenbacher
For the Accused	Mr D Cash

HIS HONOUR: 

1David John Hayden Maddocks, you pleaded guilty before me to one charge of arson which carries with it a maximum penalty of 15 years gaol. 

2The circumstances surrounding that offending are that you, having been born on 23 January 1988 and residing at the premises with your partner, also had acquaintanceship with a Craig Stewart of no fixed abode. At the time of the offending you used a mobile phone connected to Optus, which ended with the numbers 883.  In March 2018 a phone number was connected to a partially fictitious name of David John Maddocks and a fictitious address of 8 Geoffrey Street, Thomastown.  Your co-offender Stewart used a mobile phone connected to Telstra which ended with the numbers 537, which was connected to the name of Bradley Pettiford at an address of 26 Macarthur Avenue in Rosebud.  Just prior to the offending in question Victoria Police had obtained telephone warrants in respect of your mobile phone and were lawfully monitoring intercepted calls made by you.

3Your victim in this matter, Michael Becher, rented a property at 335 Dandenong-Hastings Road, Lyndhurst.  He was employed as a contractor restoring motor vehicles and ran his business from the property.  A large shed was located on this rural property, where restoration work was done by your victim.

4Residential premises was located on the property, some 100 metres from the shed.  The house was a four-bedroom weatherboard house.  At the time of the offence your victim was living in the house with two housemates.  On the night of the offending a third friend, Joseph Zarb, was staying at the house.

5Approximately five years prior to this offence, your victim was introduced to your older sister, Patricia Maddocks.  She and her sister Wendy wanted to agist horses on his property.  Your victim and your two sisters came to an agreement that your two sisters would pay $25 per week to agist the horses.  Over time, they fell behind in the agistment fees.  In addition, there were some disagreements between your victim and your sisters in respect of keeping the horses on the property.

6After some years, your victim sold the horses to another person, some weeks before this arson.  The matter of the sale of the horses was reported to the police, and Becher explained his reason for selling the horses to police; namely, in order to get recompense for the agistment fees that were outstanding.  Nothing further came of that matter.

7At the time of the offending you were the subject of a community corrections order, you having been sentenced at the Frankston Magistrates' Court on
31 March 2017 to a total effective sentence of 12 months' imprisonment with
 66 days pre-sentence detention reckoned as time already served.

8You were released from prison on 24 January 2018 and commenced that
24-month community corrections order upon your release.  The conditions of the community corrections order were that you were to remain under supervision, treatment and rehabilitation and perform 100 hours of community work, 40 hours of which for treatment and rehabilitation would be treated as unpaid community work hours.

9Some four days prior to your offending, you became aware of the fact that your sister's horses had been sold by your victim.

10On 3 April 2018, at 11.22 pm, you called Mr Stewart and said to him that you were at the BP on Thompsons Road, Cranbourne.  Stewart said to you that he just pinched some fuel and timber for your use.  You then told Stewart where you should meet.  Stewart said to you that he stole the wrong kindling and that he should have taken redgum, which is better for heat.  In response, you said to Stewart:

"Yeah. The shed we're goin’ in, it’s gunna be fuckin' cold, man"

11Some four hours later, at 3.28 am the following morning, you sent a text to Stewart and wrote:

"On my way to crack shack"

12Then, some two hours after that, at about 5.30 am, you, together with an unknown offender, travelled in convoy to 335 Dandenong-Hastings Road, Lyndhurst, where the victim lived.  You were in a white Commodore with your girlfriend, Kylie Haggerty.  You and the unknown co-offender parked your vehicles in Glasscocks Road, exited your vehicles, and crossed over a paddock to access the rear shed located at that address.

13The shed contained predominantly vehicles, farming equipment and other miscellaneous items.  You and the unknown offender entered the victim's property and entered into the shed on the property.

14Inside the shed, the two of you poured petrol around the shed and its contents and ignited the petrol, causing an intense fire.  After lighting the fire the two of you ran out of the shed across paddocks and back to your respective cars.  Four occupants were asleep in the main house approximately 100 metres from the main fire, and they managed to flee and escape injury.  You and your victim knew each other.

15The contents of the shed were not insured.  The fire totally destroyed the shed and its contents.  Most of the property inside the shed belonged to your victim or his customers, and the value of the property destroyed, including the shed, was about $80,000.

16The first fire brigade unit was activated at approximately 5.44 am that morning, 4 April 2018.  Although the weather conditions at the time were not classed as high or extreme, Victoria was in a fire danger period at the time of the offence.

17At about 5.50 am, having lit the fire, you called the unknown co-offender and said to him to meet him at a service station.  You said:

"I'm gunna go up and get a photo of it and I'll meet you at the servo."

18You and your girlfriend travelled west along Glasscocks Road, turned left on the Frankston-Dandenong Road, then left into the Thompsons Road where the two of you positioned yourself so that you could see the fire from an elevated area.  The two of you then attended the BP service station at McDonald's on the corner of Thompsons Road and Western Port Highway.  At this location the two of you purchased items at the drive through and then went to the north-western corner of the service station where you parked the car and again watched the fire.

19The two of you then left the BP service station and drove north along Dandenong-Hastings Road.  You, during the course of that trip, took a video of the fire as you drove north.  That video became Exhibit 2 on the plea.  I have watched that video.  Music is playing in the car as you clearly gloat at what you had done as you drove along taking a video of this fire.

20Shortly thereafter, at 6.05 am, you called your sister Patricia.  You told her that it looked like her ex-mate who used to own her horse had a "mishap" and his house caught fire.  You told her that you took photographs for her.  You said to her:

"put the news on, you fuck with my sister dog, so we just went and lit it up"

21You then said, again, that you had photographs of the fire, and said:

"go to the news you'll see it, the channel seven news fucken mate, you should see all the fire brigade and shit here.  Oi we got his shed and the house…fuck him, he shouldn't have stole the, listen to the sirens"

22You said to her:

"you should have seen how black the smoke was cunt, and all the gas tanks explode"

23During that phone call, you also said:

"so we'll see how he feels now"

24You continued to provide her with a running commentary of what was occurring:  the sirens sounding and the fire brigade arriving.  She said:

"fuck the dogs"

25And in response, you said:

"that's right they shouldn't have sold"

26Referring, of course, to the horses.

27You provided her with a detailed description of the contents of the shed, stating that your victim had upgraded all his vehicles, inclusive of RVs, a VZSS ute, and a thunder ute.  She asked about the Valiant, and you replied:

"that's gone"

28She asked about the El Camino car, and you said:

"not no more, that's gone, that's what I tipped petrol on before the bench"

29The two of you continued to talk about the cars, and then you said:

"I don't care who's it is, they shouldn't have sold your horse cunt"

30You said to her that you had left home and were driving to the Lyndhurst area and thought:

"let's go and get Craig and burn Mick's house down, he fucken sold..."

31You said to her that getting to the house was:

"hectic, I thought I was Rambo."

32You also said to her that your victim had no property left and will have to move.  You said:

"suck shit dog, you mess with my family. I still have all the dust n’ shit in my socks cunt"

33Your sister asked for photographs, and you said:

"we'll show you and then delete em, we don't want them on any of the phone, know what I mean?"

34You referred to recording the fire on video and said:

"where's this cunt gonna sleep now cunt, aw poor baby, let him threaten to lag me about the red car now"

35And you concluded your conversation by saying to her:

"I will come around and show you the photos"

36You were proud of what you had done.  You wanted to share what you had done with your sister.  You wanted to make yourself out to be the big man, showing photographs and taking a video to show your associates what you had done.  You even went to the extraordinary length of bragging about something you had not done, namely, burning the victim's house.

37This theme continues in the next telephone conversation where you ring Harold Hutchinson that morning at 8.38 am.  During that conversation, you said:

"I have a big weekend every day” and “had a bit of fun last night"

38Mr Hutchinson asked what you had got up to and you replied:

"fucken burnt down some cunt's house down with him inside"

39Hutchinson laughed, and you said:

"yeah, he sold my sister's horse, so"

40Hutchinson replied:

"nice"

41You then said:

"I went there last night and tipped a few litres of fuel around the house and sat there and recorded it"

42Hutchinson asked:

"did he get out?"

43You replied:

"I dunno the coroner turned up, so I'm assuming not"

44To which Hutchinson replied:

"wow"

45You said:

"fuck the dogs, you fuck with my family, you fuck with my fires"

46During this phone call you also said:

"my sister was heartbroken she's had that horse, it's a race horse, know what I mean…  it wasn't his right, and she was agisting it at his um on property and this cocksucker's gone, I need money and I don't have money, so I'm gonna sell your horse'"

47Again, what can only be described as some, to me unfathomable pride in what you had done, and an exaggeration of what you had done.

48Shortly after that phone call, at 8.42 am, Ms Sarah Woodyard called you.  You said to her that you were excited about what happened the previous night, she asked you what happened, and you said:

"oooohhh David may have fucken lit someone's house on fire with them trapped inside" 

49She responded:

"oh shit"

50You continued:

"motherfuckers, the fuck with my family they fuck with my fires, yeah so, I got it on video camera, so that's alright, I recorded it"

51She responded, extraordinarily:

"gold"

52You said:

"fucken coroner turns up and shit, weak dogs, huh"

53You also said that you had had fun the previous night, that the fire was "hectic" and you described how a 13 car garage dropped to the ground.  You said:

"me and Craig went and done it"

54You were arrested that same day at your Boronia Crescent, Cockatoo address at 3.36 pm.  You were cautioned and taken to the Crime Department in Spencer Street.  At about 5.35 pm you participated in an electronic record of interview.

55Police in the meantime had executed a search warrant at your Cockatoo address and seized, among other things, a black Sony camera handy cam. 
An analysis of that handy cam established that there was footage of the fire incident taken by you as you were travelling north along Dandenong-Hastings Road, past the crime scene. 

56During that record of interview you stated that you left your premises at Cockatoo in the late hours of Tuesday evening on 3 April 2018 with Haggerty.  You said that you had travelled to an address in Frankston where you met with some friends and used a quantity of drugs.  You said that the two of you left home for your friends' house at about 10.30 pm.

57You said that the two of you left the address in Frankston in the early hours of Wednesday morning and drove home and that, as you were driving home, you said you stopped at the BP service station at McDonald's at the corner of Thompsons Road and Western Port Highway.  You said that whilst you were there you noticed fire trucks drive past and you told your partner to follow where the trucks were and you drove to where the fire trucks were.

58You said that when you got to the fire, you sat there and looked at it for a bit.  You said that you spent about two minutes looking at the fire and then you and your partner returned home to Cockatoo.  You denied going to the shed and pouring petrol through it and lighting the fire.  Basically, all lies.

59This was all over a horse, perhaps more, which according to your victim, had he been paid the $450 owed for agistment, which was not paid, the horses would not have been sold. 

60In Exhibit 3, your victim, in his victim impact statement writes, among other things, the following:

"On the morning of the fire we were all asleep.  If it wasn't for my mate Ken, who was living with us at the time, getting up for work, the fire would have hit the trees and then got the house."

61I interpolate at this point in time, no aspect of my sentencing involves you being sentenced for that danger. I continue:

"It put all our lives in danger.  I feel like I now need good security because I don't feel safe in my own home."

62It is the question of even not feeling safe in his own home that I do rely on as being part of the factual matrix that I must take into account in terms of the effect on your victim.

"I also feel I should move now because I can never know who is coming or out of the farm.  Losing my shed has financially made life hard.  Losing my tools, my cars.  I feel like I'll never be able to get any of it back as it took me 20 years to collect all of that."

63He continues:

"Every day I walk outside and see my burnt shed, and all the cars and tools.  I haven't been able to work in the shed anymore.  I do up cars part-time in the shed for works, so I've lost income from this.  One of the cars that was destroyed I was working on for someone else, so he's been affected as well.  Since the fire, I've had a hard time sleeping.  Every noise outside makes me feel like someone is out there."

64And he concludes that not only has he lost the items that I have referred to, but also sentimental things as well that will never be able to be replaced.  Such are the consequences of what you have done.

65It is plain that I must strictly look to the charge in question as it relates to the shed and the shed alone, not, as I have said, the potential for further fire damage or hurt to anybody else in the house.  There are no charges in relation to such matters.  I put them aside, consistent with the principles articulated in Alexander John Semaan v The Queen and DPP v Alexander John Semaan [2017] VSCA 261, in the joint judgment of Priest, Beach and Hansen JJA, particularly at paragraphs 88 to 91 of their Honour's judgment.

66Before I turn to an analysis of the criminality that you engaged in with another on this evening it is appropriate that I refer to a comparable case:  the matter of Derek McPadden v The Queen [2018] VSCA 57 in the joint judgment of Priest and Hargrave JJA, and Kidd, AJA.

67That involved an arson and the setting fire of a restaurant which had a residential area above and premises on either side of it.  It was an arson for the purpose of an insurance fraud of considerable moment.  At paragraph 60, their Honours observe:

"With respect to the sentence imposed on the arson charge - five years' imprisonment - it was submitted that the conclusion of manifest excess is supported by an analysis of current sentencing practices.  A sentence of five years' imprisonment for arson, so it was submitted, 'is at the upper end of sentencing practices'.  The median term of imprisonment for arson, where arson is the 'principal sentence', is two years and six months' imprisonment.  Further, in the period 2011-2012 to 2015-2016, no offender was sentenced to more than four years and two months' imprisonment for arson.  Those statistics, it was contended, accord with this Court's recent observation in Beevers, that 'sentences of imprisonment of two, three or four years' imprisonment for arson perpetrated against houses ...seem to accord with current sentencing practices.'"

68Their Honours continue in relation to this arson, where there was a trial, unlike here, a plea of guilty, at paragraphs 72 onwards:

"In contending that the sentence for arson was manifestly excessive, counsel for the applicant, as we have mentioned, placed a deal of reliance on the observation in Beevers, that 'sentences of imprisonment of two, three or four years' imprisonment for arson perpetrated against houses (depending, of course, upon the individual circumstances of each case), seem to accord with current sentencing practices.'

Beevers involved an unoccupied house, detached and relatively remote from other buildings.  Setting the fire in that case posed no risk to any person, or to other buildings.  In the present case, the restaurant was situated in a row of connected commercial premises, in circumstances where there were occupied dwellings on the second storey above, it being a circumstance of aggravation that the occupants of the burned building or neighbouring building were put at risk (subject, of course, to considerations of double punishment).  Thus, Beevers and factually similar cases do little to inform an assessment of current sentencing practices for a case involving a mixture of commercial and residential premises, where innocent people are placed at risk of serious harm.

But assuming that it can be said that current sentencing process suggested that sentences of four years' imprisonment were at the upper end of the range for arson, as Gageler and Keane JJ in Dalgliesh made clear, current sentencing practices do not set boundaries on what a court may reasonably impose as a sentence.  Their Honours said [the High Court in Dalgliesh]":

"The approach to current sentencing practices described by the Court of Appeal appears to have originated in its decision in Director of Public Prosecutions v CPD.  This approach was adopted in the present case before the decision of this Court in R v Kilic.  It manifests the error identified in Kilic of treating current sentencing practices as fixing quantitative boundaries within which future sentences were required to be passed.

Section 5(2)(b) [of the Sentencing Act1991] does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence.  The court must have regard to current sentencing practices, as well as every other matter listed s 5(2).  Current sentencing practices stand in the same position as every other matter listed in s 5(2).  There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters.  Of course, an express purpose of the Sentencing Act is to promoted consistency of approach in the sentencing of offenders, to which the requirement in s 5(2)(b) may contribute. But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles, provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a 'band' derived from current sentencing practices.

Sentences are not binding precedents, but are merely 'historical statements of what has happened in the past'. …"

69Their Honours then continued, having quoted from that section, in an oft-quoted from the High Court decision in Dalgleish, at paragraph 75:

"This is a very serious example of arson, exposing, as it did, multiple commercial and residential premises to damage, and a number of occupants of the residential premises to serious injury.  Moreover, apart from the applicant's previous good character, there was very little by way of mitigation.  Certainly there was no mitigation flowing from a plea of guilty."

70And at paragraph 76:

"In those circumstances, rather than regarding the individual sentence imposed on the applicant for arson as being manifestly excessive, we regard it as being very lenient.  We think it probable that the judge imposed a lenient sentence for the charge of arson being conscious of the need to avoid double punishment.  But whatever the reason, a significantly more severe sentence would have been well-justified."

71Previous sentences such as McPadden provide a yardstick, but a yardstick only, in order to assist in the sentencing process.  Differences in the circumstances of McPadden, as opposed to the circumstances that I must sentence you, abound.

72You pleaded guilty and McPadden ran a trial.  McPadden sought financial gain and you seem not to be so motivated at all, but for reasons which I will come to. 
In McPadden there was a threat to others.  Here, there was none.  McPadden was a person of good character.  You are the opposite, having an extensive criminal history, which I will come to shortly.  And in this case, not only is there a strong need to deter you from further offending, there is also a need for the sentence that I impose to take into account the need to protect the community from you.

73And so I turn to the litany of crimes that you have committed in the past. 
On my count, you have been dealt with for no less than 138 criminal offences during the course of 15 court appearances.  They include offences of violence, three charges of unlawful assault, one charge of assault with a weapon, one charge of robbery, two charges of possessing a controlled or dangerous article, one charge of hindering police, one charge of resisting police and one charge of resisting emergency workers.

74In addition, there is a charge of aggravated burglary. I am not sure whether or not that is one which was associated with violence. 

75You have also been dealt with for charges of reckless conduct endangering serious injury or life on three occasions.  You have been charged with and dealt with for seven charges of criminal damage on four separate court appearances.  You have been charged and dealt with for recklessly causing injury and threat to kill.

76In terms of dishonesty, the aggravated burglary is one in that regard, as is the robbery which I have referred to.  But in addition, you have been dealt with for another charge of burglary, six charges of theft and two charges of either receiving stolen property or proceeds of crime.

77You have been dealt with in relation to motor offences for driving whilst disqualified or whilst your license was suspended in relation to no less than
24 charges, as well as two charges of unlicensed driving, two charges of dangerous driving, one charge of dangerous driving during the course of a police pursuit, one charge of failing to stop and one charge of failing to render assistance after an accident.  There are, in addition, some 50 other miscellaneous motor offences.

78You have been breached in relation to one intensive community order, four suspended sentence breaches, four breaches of bail, five breaches of intervention orders, one occasion of committing an indictable offence on bail and three instances of misconduct in gaol.

79Thus, over a period of ten years, from 2007 to 2018, you have been sentenced to gaol on no less than 12 occasions, resulting in you, on four separate occasions, being imprisoned.  On the last occasion, you were sentenced to be imprisoned and then to be released after 12 months on a two-year community corrections order, as I have said.  You were released on 24 January 2018, only to commit this arson ten weeks later whilst on that community corrections order.

80I conclude that those gaol periods have had no impact in deterring you from further offending.  Your prior offending demonstrates your propensity for violence and dangerous conduct.  They also demonstrate your complete disregard for court orders, including community corrections orders and the like, suspended sentence orders, bail orders, intervention orders and license disqualifications and suspensions.

81What you said and what you did, and the pride with which you spoke of the events on that night, provide a chilling insight into your lawlessness on that night in setting, watching, recording and bragging to others.  Rarely does a sentencing court have such an insight into the motivations and the actions of an offender as do I in this case. 

82An explanation has been put forward that, in the context that I will come to, your conduct in this regard reflects your poor impulse control.  But that belies the true facts, for here you knew of the suggested grievance not an hour, not four hours, but four days beforehand, in relation to the sale of your sister's horse or horses.  Further, this arson was planned and executed over a period of time, together with another unknown offender.

83The planning started at about 11.22 pm the night before.  At 5.30 am the following morning you travelled with your co-offender to your victim's address and having set the fire. You, at about 5.50 am, arranged to meet your co-offender at the service station, having taken a video of the fire.  At 6.05 am you called your sister, Patricia, to boast about what you had done, providing her with a running commentary.  At 8.38 am you called Mr Hutchinson, suggesting your victim did not get out of his burning house, among other things.  And shortly thereafter, at 8.42 am, you contacted Sarah Woodyard and you again made the same boast.

84Far from this being the result of poor impulse control, I am satisfied beyond reasonable doubt that this was a premeditated considered act of which you were proud. 

85I wish to turn to what motivated you.  It has been suggested in the written submissions of your counsel, Mr Cash, that the reason for the arson was:

"a desire to act protectively towards his sister, who has been a mother figure to him throughout his life, and who had a grievance against the victim."

86I accept in part that that explains some of your thinking, but I am satisfied beyond reasonable doubt that there are more sinister reasons which drove you to light this fire.

87First, you simply enjoyed lighting the fire and watching the aftermath. 

88Second, you lit the fire so you could brag about what you had done to your sister and to other associates. 

89Third, you wanted to cause great harm to your victim. 

90And fourth, by doing that harm you could, in some distorted way, present yourself to your sister and others as your sister's protector and avenger.  All of those reasons revolve around you and your pride in your handiwork that night.

91What I previously said informs me as to the gravity of the offending that you engaged in on this evening.  Having regard to those circumstances, what you did, what you said and why you did it, in a situation where you had just been released from 12 months' imprisonment some ten weeks earlier, evidences to my satisfaction that this is a very serious example of the offence of arson.

92And so I turn from those matters to your background, which was concisely set out in Mr Cash's written submissions on plea, and which I draw upon for my purposes.  On the topic of the accused's personal circumstances the following is written:

"Mr Maddocks is 30 years old.  His childhood was traumatic- his father was a high ranking member of a chapter of the Hells Angels who was murdered by ten of his fellow club members in front of Mr Maddocks and his family, when he was 4 years old.  His mother re-partnered with a Mr. Cairns. He survived serious and sustained family violence at the hands of his step- father Mr. Cairns, who bashed his mother and the children regularly. He was on the streets by the age of 12.  His ADHD and anti-social behaviour prevented him from applying himself at school.  He was expelled from almost every school he attended and left school altogether after completing year 10 at Campbelltown District Highschool in Tasmania. 

He commenced an apprenticeship in mechanics but failed to complete it after Mr. Cairns broke his arm in two places. Dr. Cunningham notes that he presents with Post Traumatic Stress Disorder- “He presents with severe trauma beginning from early childhood.”

To his credit, he then completed a bricklaying apprenticeship in 2007 at age 19 and has worked as a bricklayer and mechanic for various employers.  Refer to Warren Simmons psychological report. 21 November 2012.

He has one son Tyler who is the care of his mother. 

Drug and alcohol history- He started smoking cannabis in year 7, which escalated to a quarter a day at its peak.  He was smoking methamphetamine by age 16.  This escalated to daily use – up to a gram a day.  He continued use when not in custody.  He relapsed prior to the commission of this offence.  He is an alcoholic- drinking up to 24 premixed bourbons and cokes a day. 

He has been an abuser of ecstasy and a paint sniffer."

93As to priors, Mr Cash writes:

"The accused has one prior conviction for 2x arson, dealt with in 2005, when he was a teenager.  Mr. Maddocks also had reckless conduct endangering serious injury/life prior convictions, dealt with on 10/11/05, 3/12/12 and 22/1/10. 

It is conceded that the existence of the relevant prior convictions placed his prospects of rehabilitation as guarded at best."

94I have carefully read one letter and two reports. 

95First, of Dr Tony Marshall, which became Exhibit DM1 and is dated 16 May 2012. 

96Second, of psychologist Warren Simmons, which became Exhibit DM2 and is dated 21 November 2012.

97Third, Exhibit DM3, a further psychological report of Dr Aaron Cunningham dated 4 February 2019. 

98I intend to extract certain portions from each of those exhibits.  Dr Marshall writes:

"Mr Maddocks has been attending this clinic since 11th August 1997.  He has a past history of Attention Deficit Hyperactivity Disorder (ADHD)."

99It continues:

"As well as, he has had a past history of poor impulse control and an anger problem."

100He notes that you have attempted suicide on more than two occasions. That is, at that date in May 2012, when the letter was written, it concludes:

"In summary Mr Maddocks is a young man with past history of ADHD and poor impulse control and borderline personality disorder with recent situational crisis resulting in depression and suicide attempts, in the background of court cases and separation etc.  As far as we know he is still supposed to be on Dexamphetamine for the long term to help his impulse control and presumably he is still under psychiatric care with a need for ongoing counselling and rehabilitation."

101In the 2012 report, on the topic of current matters, at p.5 Mr Simmons observed:

"Mr Maddocks states that he is pleading guilty to the current charges and it was noted that the majority of these offences arise from his ongoing use of motor vehicles and that any other matters have arisen during his apprehension by police.  It would appear that these are a continuation of his previous pattern of behaviour."

102At p.6 Mr Simmons continues:

"Mr Maddocks has previously demonstrated some signs of Attention Deficit Hyperactivity Disorder, with a third of individuals diagnosed with the disorder in childhood, continuing to show some symptoms in adulthood. 
In addition, given Mr Maddocks' behavioural problems while he was growing up, it is possible that he may have met diagnostic criteria for other disorders, such as conduct disorder.  Mr Maddocks certainly presents with symptoms consistent with borderline personality disorder, a not surprising diagnosis given his early developmental history.  This latter condition is associated with periods of psychosis, usually short-lived and a response to significant distress. In addition, such individuals will also have problems in interpersonal relationships, as well as controlling and managing their mood. 

Mr Maddocks' difficulties are unlikely to be significantly impacted upon by incarceration in that both any ADHD and borderline personality characteristics are long-standing difficulties, inherent in the individual and not modified directly by simple behavioural techniques such as imprisonment. Mr Maddocks' substance use appears to have at times been a way of maintaining and modifying his mental state and has therefore been a form of self-medication."

103Later, in the last two sentences of moment, Mr Simmons continues:

"Lastly, long-term therapy for his personality difficulties seem indicated, although this may be hard to obtain and often there is a long waiting list for treatment.  However, these difficulties will take a long time to overcome and it may very well be the case that there will be further legal difficulties before significant change is made."

104Prophetic words, as it turns out. 

105In Dr Cunningham's psychological report he also outlines your background and in the summary and opinion section writes:

"Mr Maddocks is a 30-year-old male charged with arson and driving whilst disqualified.  Results of the mental state assessment were consistent with complex post-traumatic stress disorder. 

In my opinion Mr Maddocks presents with complex post-traumatic stress disorder.  His trauma stems from the violence and sexual abuse he suffered.  He suffered distressing recollections of childhood trauma. He was raised in an unstable environment and has not been able to source or maintain his own stability since this time.  He has largely been homeless when not supported by family or partners.  Many of his driving offences occur when he is living and working out of his car.  He has not engaged with long-term mental health intervention or case management in the community. His inability to manage his symptoms of trauma leads to ongoing relapses into drug abuse.  He is paranoid, on edge and hypervigilant.  He is prone to blowing events out of proportion and becoming hopeless.  His arson offence appears to have occurred in the context of perceiving that he was defending and/or supporting his sister.  He has a long history of defending his sister dating back to primary school. It is difficult to connect specific symptoms of trauma to Mr Maddocks' arson offence.  He presents with drug and alcohol abuse, negative peer associations and antisocial attitudes that are all contributing factors.  However, in my opinion, Mr Maddocks' trauma has contributed to his drug abuse and his inability to maintain stability in the community."

106In the concluding three sentences Dr Cunningham states:

"Mr Maddocks' path to rehabilitation will be difficult.  He has never had periods of stability or long-term support and has never been vulnerable enough to open himself to treatment.  Motivation towards continuing long-term engagement with treatment and rehabilitative supports would improve his prospects for rehabilitation."

107In our community it is assumed that as a basic the family life and family home provides support and stability.  That assumption is entirely wrong in this case.  Your house, your home, was no such thing.  It was a place of violence hallmarked by alcohol abuse and general domestic violence, not only by your father but also by Mr Cairns.  This dysfunctional family life has had traumatic effects on you - you, running away from home at an early age.

108In addition, you suffer from Attention Deficit Hyperactivity Disorder which has impacted on you, not only in your schooling but in the whole of your life. 
You are, at least, literate. Homelessness is for you, unfortunately, the norm. Polysubstance abuse, with you using cannabis from year 7, methamphetamine from age 16, alcohol from age 16 on a daily basis and even ecstasy from age 14.

109You do have skills.  You are a competent mechanic, as Mr Sprout has attested, who met you some two-and-a-half years ago.  You have worked in his workshop assisting in the restoration of vehicles.  He describes you as a good worker, a motivated worker, one who is capable of good work and, generously, has indicated that upon your release he will provide you with short-term accommodation in a caravan out the back of his property, together with work.  Hopefully all of that does materialise.

110You also have your ten-year-old son, Tyler, who you love very much. 

111Looking to all these matters, I agree with your counsel that your potential for rehabilitation is guarded.

112You have written a letter that was tendered two days ago and which you addressed to Your Honour Mr Stuart, myself.  You write, among other things:

"My name is David Maddocks.  I am before you today pleading guilty to 1x arson, Your Honour.  I am well aware of the matter being of a serious nature and no-one should have experienced what Mr Becher did.  If I could turn back time and stay on my medication off drugs and let the police do  there job instead of me acting on impulse of rage and drugs when my family are harmed or hurt, my life would be a whole lot better and not so suicidal alone paranoid scared or delusional."

113In the second page you continue:

"When I heard them phone calls I couldn't believe it was me I am so ashamed and embarrassed at what was said and found them confronting there is no excuse for the way I acted nor spoke."

114As to the phone calls, you "couldn't believe it was me", I doubt that.

115You are still only a 30-year-old man.  Your prospects of rehabilitation are, as submitted by Mr Cash, guarded.  Indeed, if you return to using drugs when you are released your prospects of rehabilitation are nil.  I have no doubt that if you did return to the use of drugs and alcohol your offending will continue to increase, as here, with you spending longer and longer periods of time in prison.

116General deterrence, deterring others from committing such offences as here, of arson, is the principal sentencing factor.  It must be understood that those who set fire to premises, be they occupied premises or unoccupied premises, or a combination of both, must be aware that they will face stern punishment.

117Your offending is of increasing gravity compared to your past offending.  Given your background and your extensive criminal history, and the fact that you committed these offences no less than ten weeks after having been released from custody, and whilst on a community corrections order designed to assist you reintegrate into the community and stop offending, results in me coming to the clear conclusion that deterring you is a significant sentencing factor I must take into account, as well as the need to protect the community from you, being also a significant matter I must take into account.

118There is also a need for the sentence that I impose to have just punishment as a factor I take into account, as well as a denunciation of your behaviour on this evening.

119You pleaded guilty at the earliest reasonable opportunity and that I take into account, not only in terms of its utility, as you accepted a direct hand-up brief and pleaded guilty, but I also take it into account together with your letter as evidencing some insight and some remorse for what you did.  Whether this insight and remorse is deep or shallow, is long-lived or short lived, I am unable to determine.  And so, your plea of guilty also evidences some remorse and some insight.

120It is necessary for me to take into account all these many conflicting factors in order to arrive at, as part of the instinctive synthesis, the sentence which I consider to be appropriate given all those circumstances. 

121Stand.

122On the charge of arson I sentence you to be imprisoned for a period of six years. 

123I set a minimum non-parole period of four years.

124I declare that 324 days pre-sentence detention exist.

125And I state that but for your plea of guilty I would have imposed a sentence of eight years and set a minimum non-parole period of five years.

126I declare that 324 days pre-sentence detention exists.

127And I state that but for your plea of guilty, I would have imposed a sentence of eight years and set a minimum non-parole period of five years.

128Remove him.

129MS KRETZENBACHER:  Apologies, Your Honour.  There's the compensation order that was consented to. 

130HIS HONOUR:  Yes, I will make that in chambers.

131MS KRETZENBACHER:  I should note there's an error on the order.  I'll ask my instructor to send through a fresh copy.

132HIS HONOUR:  I will make that order in chambers.  Thank you. 

133MS KRETZENBACHER:  Thank you. 

134HIS HONOUR:  I thank you both for your assistance.

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