Director of Public Prosecutions v Mallikarachchi

[2014] VCC 2182

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01817

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAGATH MALLIKARACHCHI

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2014
DATE OF SENTENCE:	12 December 2014
CASE MAY BE CITED AS:	DPP v Mallikarachchi
MEDIUM NEUTRAL CITATION:	[2014] VCC 2182

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic
For the Offender	Ms C. Woodward

HIS HONOUR: 

1Jagath Mallikarachchi, you can stay seated for the time being.  You have pleaded guilty to an indictment charging you with burglary, Charge 1, arson, Charge 2, and handling stolen goods, Charge 3.  All the offences are said to have occurred on 3 July 2014.  You have also admitted a prior conviction, which resulted in your serving a term of imprisonment, albeit partly suspended in 2011/2012.   That offence arose out of an incident where you set a fire at the place where your previous wife was living and engaged in reckless conduct endangering serious injury.  Clearly, it is a significant and highly relevant prior conviction, albeit that you had your sentence significantly reduced on the appeal to this court.

2In relation to the offences on the indictment, the prosecution tendered and relied upon a summary of prosecution opening, which was read this morning.  I am not going to read it again, but it sets out the circumstance in relation to the offending conduct which occurred in the early hours of 3 July of this year at the Olive Tree Shopping Centre in Lilydale.  You we reliving in Lilydale.   You had been employed at that shopping centre as a cleaner, for a period between 9 December 2013 and 12 May 2014.  It seems that you lost your jobs at the shopping centre, as a cleaner.   You harboured something of a grudge, as a result, and engaged in sending text messages to your former employer, the last of which reads, "You just wake up a sleeping lion.  Thanks.  Be good."

3On Wednesday 2 July you were drinking heavily during the day and in to the evening.   In the early hours of the morning on 3 July you drove from your home address to the Olive Tree Shopping Centre.  You had retained keys, it seems, and were able to gain access and therefore commit the offence of burglary upon those premises.   Also you set a fire which caused a considerable amount of damage.

4It seems that there was at least fifty-thousand odd dollars worth of damage caused to the structure of the shopping centre and in addition you damaged or destroyed stock valued at, at least, $10,000, at one retail outlet; caused financial loss at the Cellarbrations liquor store and at Priceline Pharmacy and about $7000 loss to the IGA supermarket.

5When police executed a search warrant on your home they found cleaning chemicals and equipment valued at $971.18, the property of your previous employer.  Some of those chemicals and consumables were in sealed packaging with a delivery address at the Olive Tree Shopping Centre.  They are the subject of the charge of handling stolen goods.

6The offence of arson is a particularly serious offence, not just for the damage that it causes to property but because of the potential that the fire that you set may have spread, may have been accelerated by other accelerants on the premises, and may have resulted in a very substantial fire which would have put the emergency services, particularly the fire department, in even greater danger than they were placed by having to attend this particular fire.  This being the second occasion upon which you have engaged in conduct of that kind, apparently as a result of your feelings of frustration, to put it mildly, makes the offending conduct all the more serious.

7I regard the arson and the offence of burglary as part and parcel of the same offending conduct and I do not propose to impose sentences that are cumulative, one upon the other.  I regard the offence of handling stolen goods towards the lower end of the scale and I do not intend to impose a cumulative sentence in respect of that offence either.

8Turning to matters personal to you, I was provided by your counsel with a summary of the arguments that she sought to put before me on your behalf and a chronology of the events surrounding the offending conduct on this occasion.  She also provided me with a psychological report of a Daniel Maguire, a number of letters, or communications at any rate, from Vincent Care, under the signature of Mr Walmsley, dated 14 August 2014, and 10 October 2014, also by the same author, under the signature of Vanessa Caruso, dated 5 December 2012 and another dated 14 August 2014 under the signature of Ms Bothin and a further letter, or report, from Ms Bothin, dated 22 December 2014 together with a letter from Anglicare dated 2 December 2014, a discharge summary from the Alfred Hospital, to which you were taken as a result of burns that you suffered in the course of setting the fire, the subject of the arson charge, and a letter from Dr McCartney of Cohealth, dated 10 December 2014.  There are also a number of reports indicating that on the dates that the reports bear, you tested negative for drugs and alcohol.

9There is also a letter from you, which is Exhibit 4, which I have read, and that attaches a letter from a Bradley Pontin, concerning the course that your wife proposes to take in January next year.  Finally, I was provided with character references from your wife, your father, and from Mr Jiacoti, all of which speak about good aspects of your character which you display when you are sober.  It seems that you are a person with considerable ability, intelligence, education, background, and support, both of family and friends.  It is sad to see that for various reasons you have succumbed to alcohol addiction and have responded to stressors in your life, both in 2008, which resulted in your earlier period of incarceration, to which I have already referred, and to this offending conduct.

10It is, unfortunately, the duty of the courts not just to concern themselves with assisting rehabilitation, but with a proper regard to other sentencing considerations.  You have had some very good jobs in your time and you, I have little doubt, have the capacity to rehabilitate yourself.  You have, perhaps rather belatedly, it seems, knuckled down to setting about that task in earnest, by engaging in the programs that you have engaged in, in the last several months since the offending conduct, and it seems that you have done pretty well.  All of that would suggest that you have the capacity to rehabilitate yourself.   But I have to look also to not just denouncing this sort of conduct on behalf of the court, but to public protection, to punishing you adequately for these serious offences, to deterring you from committing offences of this kind in the future and most importantly to deterring others in engaging in conduct of this kind.  The balance, I am afraid, has to come down in favour of an immediate custodial sentence.   I have to pay proper regard to all of those competing sentencing considerations including facilitating your rehabilitation as much as I reasonably can.

11You have pleaded guilty and you have pleaded guilty at the earliest reasonable opportunity.  That is very much in your favour.  You have saved the state the cost of a trial and the witnesses the inconvenience attending, both at committal proceedings and in the trial.  All of that is in your favour.  Also, your plea of guilty is consistent with remorse, and that is other evidence of your remorse.   Indeed the letters that have been tendered on your behalf speak of your remorse.   I am able to accept that, now, in the cold light of day, you are remorseful.  You were very fortunate that you did not suffer more serious injuries.  You could easily have killed yourself in those circumstances.  I suspect that indicates the degree to which you were intoxicated.  Unfortunately intoxication is not a mitigating factor in this case, rather it is conceded that it is an aggravating factor.  It seems it played some part in the offending conduct, if the report of Dr Cunningham is anything to go by it was a relevant consideration in the previous offending conduct, that is the fire you set at your former wife's premises.  You should have been aware of the risks of engaging in binge drinking and the effect that that might have upon your capacity to control your inclinations.

12You, also, I am satisfied, were suffering from depression.  I am satisfied that that depression has got worse, probably as a result of the prospects of you facing a term of imprisonment and the consequences of your offending conduct.  I am not satisfied that it mitigates your moral culpability to any great extent, although I think it has to be taken in to consideration in that regard, and I do not think it should be seen as reducing the need for individual deterrence, that is deterring you or any general deterrence, to any great extent.  However, I am satisfied that it will make your - that is the current major depression that you apparently suffered from will make serving your time in prison harder and also there is a real risk that your serving a term of imprisonment will make your depression worse.  Obviously there will be treatment for you, but I am satisfied that a reduction in sentence should be made for a combination of those principles that are referred to as the Verdins principles.

13The prospects of rehabilitation I think will depend very much on your ability to see the terms of imprisonment that I must impose upon you as not just punishment but an opportunity.   Because there are rehabilitative programs available through the prison system and if you put your hand up for them, and I am thinking in terms in particular about Marngoneet Prison, which is set up purely for the purposes of providing rehabilitative programs, including for alcohol abuse; and if you put your hand out for programs that that prison has to offer then you should be looking at that as a positive opportunity to build on your efforts to date, of rehabilitating yourself, and to make your prospects of getting parole at the earliest reasonable opportunity, more likely.

14The degree to which you are capable of overcoming your alcohol addiction, and going back to a regular pattern of work, and obtaining more employment that is more in tune with your academic qualifications and previous job experience, will depend very much on your determination to continue to overcome your alcohol addiction.  You do not need a lecture from me to understand that that is the case.   I think it will be plain to you already that that must be your priority.

15Unfortunately I have to be guarded, at this stage, having regard to previous lapses, about your prospects of rehabilitation, but subject to your determination I would think that they are reasonably good.  One would hope that you would have learnt a lesson from the previous court appearances and the term of imprisonment that was imposed previously and would not have engaged in conduct of this kind again.  However, I cannot ignore that, because it is the second occasion upon which you resorted to setting fires.  For that reason I have to have particular regard to protection of the public and that is a factor which I have to throw in to the balance in assessing the appropriate sentence.

16I have been provided with material by the prosecution which is designed to help me identify current sentencing practice and I found that material helpful.  Obviously every case has to be determined on its own facts and previous court decisions have a limited capacity to identify the actual sentence that is appropriate in this case.   However I think I have a better appreciation now of current sentencing practice and I recognise the need to impose a sentence that is in accordance with that practice.

17The courts have made it plain that ordinarily in cases of arson, a serious case of arson, and I regard this as serious, terms of immediate imprisonment are almost always inevitable.   I have no choice other than to impose a term of imprisonment which hopefully is within the parameters of current sentencing practice but is nevertheless reduced to pay proper regard to the Verdins principles and the other factors to which I have referred, including, of course, your plea of guilty and your expressions of remorse.

18Taking all those matters in to account and balancing them as best I can, would you please stand, I am about to impose sentence upon you.

19For the offence of burglary, the subject of Charge 1, I sentence you to imprisonment for a period of two years.

20For the offence of arson, the subject of Charge 2, I sentence you to imprisonment for a period of three years and six months.

21For the offence of handling stolen goods, the subject of Charge 3, I sentence you to imprisonment for one month.

22All of those sentences will run concurrently, which makes a total effective sentence of three years and six months, and I order that you serve a period of two years and three months before you become eligible for parole.

23But for your pleas of guilty I would have sentenced you to imprisonment for a period of four years and eight months and required you to serve a period of three years and two months, before you became eligible for parole.

24I make the order for disposal of the property and the orders for compensation in accordance with the drafts, which I have been provided, and I order that you provide a forensic sample by providing a scraping from the inside of your mouth for the purposes of inclusion in the DNA database.  You will be approached by an authorised officer at some stage during your period of incarceration and requested to provide a scraping from the inside of the mouth.  If you do that and provide that sample that is the end of the matter.  If you refuse or fail to provide a scraping from the inside of the mouth when asked, the authorised officer will also be authorised to take a blood sample from you and may use reasonable force.  I am sure you will not put them to that trouble.  Are there any other orders, counsel?

25MS MALOBABIC:  No, Your Honour.

26HIS HONOUR:  All right, thank you.

27MS WOODWARD:  Your Honour, if I could just address you briefly, I spoke ‑ ‑ ‑

28HIS HONOUR:  Is there a pre-sentence detention?

29MS WOODWARD:  There is nil, no, Your Honour.

30HIS HONOUR:  I assumed there was not.

31MS WOODWARD:  If I might be clear to address you on custody management issues, just very briefly?

32HIS HONOUR:  Custody management issues?  Yes, just wait, hold on a second, there is some custody management issues.

33MS WOODWARD:  Your Honour, I tendered a report from the Alfred Hospital which indicated that Mr Mallikarachchi ‑ ‑ ‑

34HIS HONOUR:  There was some physical injuries, yes.

35MS WOODWARD:  ‑ ‑ ‑ skin grafts to his hands.  They extend up to his wrists.  I have photographs, I just wonder whether the report can be made available to prison officers, as well as the photographs.  He has indicated he has difficulty with constriction around his wrists.  Of course, being in custody, and having to wear handcuffs, I just would ask that Correctional Services, there be a notation, if Your Honour is able to do that.  I appreciate he will be assessed the moment he is taken in to custody ‑ ‑ ‑

36HIS HONOUR:  What I think I should say is that custody management issues extend both to his physical issues and the difficulty with constriction of his - is it right wrist?

37MS WOODWARD:  It is both, Your Honour.

38HIS HONOUR:  Both wrists.  Also to mental health issues, in particular to major depressive illness.

39MS WOODWARD:  Very grateful, Your Honour.

40HIS HONOUR:  So we will include those in the order.  To the extent that it is possible we will provide the photographs and reports that go to that issue.

41MS WOODWARD:  I am grateful, Your Honour.

42HIS HONOUR:  You will note that, obviously, to your custody officer, yes, thank you.

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