Director of Public Prosecutions v Martin, Peter Leslie
[2012] VCC 1577
•11 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02339
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER LESLIE MARTIN |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2012 & 8 October 201& | |
DATE OF SENTENCE: | 11 October 2012 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2012] VCC 1577 | |
REASONS FOR SENTENCE
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Catchwords: Arson - Guilty pleas - Compensation Orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. D Cordy | Solicitor for Public Prosecutions |
| For the Accused | Mr. R Thyssen |
HIS HONOUR:
1 You have pleaded guilty to nine 9 charges of arson and one 1 charge of possession of a drug of dependence (cannabis). Your offending all occurred in the township of Donald in North Western Victoria over an eleven month period between 12th October 2010 and the 22nd of September 2011. You pleaded guilty before me in Horsham on 27 June 2012 and at the conclusion of the plea I adjourned the further hearing pending receipt of a pre-sentence report. On 8th October I heard further submissions and evidence in Melbourne.
2 In sentencing you for these offences I must have regard to the maximum penalty for each offence. The maximum penalty for any one charge of arson is imprisonment for a period of 15 years. The maximum penalty for possession of a drug of dependence in the circumstances of your offending is 500 penalty units. Because of the number of arson offences you have committed Part 2A of the Sentencing Act 1961 also has application in passing sentence upon you which I will explain later.
3 Your offending was summarised in a written prosecution opening which I admitted into evidence as Exhibit C on the plea. That document was read by the learned prosecutor Mr. Cordy and it is not necessary that I repeat it here except in summary form. The document was accepted by your counsel Mr. Thyssen as being accurate and as forming a proper factual basis upon which I can proceed to sentence you for the charges. These sentencing remarks must necessarily be read together with the prosecution summary.
4 You are now aged 35 years and have lived in Donald for most of your life. That town has a population of about 1700 people and is a close knit country community. As a result of your offending which has damaged or destroyed public property your crimes caused the many people of the community of Donald to suffer in some way either directly or indirectly. I admitted into evidence as Exhibits A and B on the plea victim impact statements from representatives of the local football club and scouts which bring into graphic reality the impact which your offending can have upon groups such as those two when they are victims of offending of this kind.
5 A car dealership known as “Michael’s of Donald” was the victim of four separate arson attacks at your hands. Damage to the Community Recreation Reserve which houses the local football, cricket, netball and hockey clubs affected the work and operations of each of those bodies as well as the local scout group when you set fire to the Scout Hall. In passing sentence upon you I have had regard to the affect of your offending upon the victims of your crimes as I must.
6 In September 2010 you had a disagreement with the owner of the house you were renting and occupying with your family at 1 Wood St. You and your family moved out in October 2010 but in the early hours of the morning on 12 October 2010 you went to 1 Wood St and entered it setting a fire in the bedroom. You left the scene but later returned with your wife. The house was damaged beyond repair. An Insurance company paid out in excess of $371,000.00; Charge 1.
7 On 22 February 2011 you set fire to a vehicle at Michael’s of Donald. The vehicle was totally destroyed; Charge 2.
8 Five days later you set fire to the football club rooms at the Donald Recreation Reserve. Five fire trucks were required to attend to fight the fire which was contained to one part of the building. The fire caused $160,000 damage to the building and the football club lost property valued at more than $50,000; Charge 3.
9 About a week later on 4 March 2011 you lit fires in a public toilet block which damaged the toilets requiring repair by repainting; Charge 4.
10 On the same night, after lighting the fire in the toilet block, you took toilet paper and started a fire in another vehicle at Michael’s of Donald; Charge 5.
11 During the Victorian floods in January 2011 parts of Donald were flooded. The Donald Motor Inn was inundated and had to close and was unoccupied. Its rooms were cleared of furniture and all the doors and windows left open to assist the drying process. You entered Room 7 and lit a fire which caused some damaged to the room but which fortunately failed to fully ignite. The damage caused by your actions here was therefore fortunately limited; Charge 6. That you would light a fire in a building vacant because of the floods is particularly concerning.
12 On 26 March 2011 you returned to Michael’s of Donald and set fire to a Ford Escape vehicle. This fire also caused damage to other vehicles. As you had on previous occasions you later attended the scene where emergency services were fighting the fire you had lit. This time you goaded police saying to them “You (the police) are not doing anything about these fires” or words to like effect; Charge 7.
13 Two days later on 28 March 2011 you walked from your home to the scout hall where you started a fire which totally destroyed the building, the insurer paying out in excess of $157,000; Charge 8.
14 Finally, On 19 September 2011 you returned to Michael’s of Donald and set fire to a wooden crate containing tractor parts. Again it was fortunate that fire was extinguished before it took hold and caused more damage; Charge 9.
15 The total loss suffered by Michael’s of Donald from your offending in Charges 2, 5, 7 and 9 was $42,000.
16 You were found in possession of a small quantity of cannabis when arrested; Charge 10.
17 Your offending is very serious. Arson is a very serious offence because it has the capacity to cause not only financial loss and damage but damage to public and private property and hardship to whole community which is what happened here. Fire fighters are required to endanger their lives to extinguish the fires and once set there is no control over where the fire might end. There is no evidence here that lives were actually endangered or that the fires you lit spread out of control to other places and all of that is fortunate for you. But this type of crime has the potential for all of that to occur, that is why it is regarded so seriously by the parliament which has provided stiff penalties. That is why in sentencing for this type of offence general deterrence is a principle that needs to be applied. Others who would seek to offend in a like way must be deterred by the sentences handed down by courts dealing with such offenders.
18 Your offending all seems to have occurred whilst you were affected by alcohol and extended over a period of almost 12 months. Each offence occurred at late at night so you were not detected earlier. None of the fires can thus be described as an isolated incident. You attended many of the fires whilst police and others were attending. Mr Thyssen described your offending as a cry for help. In that he may be correct I think. You were considered a suspect for some time and a shoe imprint left by you at the scene of one fire was matched to you. You were apprehended and arrested and when interviewed you cooperated fully with the police and made full admissions so far as you could remember.
19 As I say the evidence which I accept is that you turned to alcohol and regularly drank to excess which seems to have affected the way that you reasoned. Count 1 appears to have been motivated by ill feeling by you towards your former landlord and once that offence had occurred you seem to have randomly struck as an arsonist wherever it suited you with seemingly no rhyme nor reason. Too much alcohol may explain your behaviour but it does not excuse it. I was told and accept that there was no reason for you to burn the property of the football club where your son played or for that matter the scouts hall.
20 You were born and raised in Donald where your father was a truck driver. Your parents separated when you were aged 16. You are one of four children.
21 You attended Donald High School leaving half way through year 12. You worked as a painter self employed for about five years doing general painting work including painting houses. Thereafter you did general work in the north western part of Victoria whilst residing in Donald. You have admitted some prior convictions three of which relate to possession of cannabis and one for cultivation of cannabis. Otherwise your prior history gives no hint that you might have engaged in criminal acts of this kind or at this level.
22 You have been in a long term relationship with Rachel Johnson for 13 to 14 years and you have five children of that relationship ranging from 20 months to 11 years. The school children attend Donald primary school.
23 You were working as a painter making good money shortly before your offending but your work was stopped by the Victorian floods in early 2011. Before you were remanded in custody you were supporting your family on welfare of about $500 per week of which $100 per week was paid in rent for housing. I accept that life was tough and difficult for you and your family but this does not justify your conduct in any way.
24 I was told you have been a good family man and have engaged in many activities with your children. Your partner has supported you through this time after your criminality was detected and, surprisingly, so has the local community to a limited extent. You have also been supported by the parents of your partner and from other family members and friends many of whom attended at the court in Melbourne last Monday as a sign of support for you. It is to your credit I think that you are still well regarded by so many who despite what you have done appear willing to support you. Your children have been the subject to bullying comments from others at school but the local community has generally tried to assist you and your family even after the trouble and loss you have caused. I received into evidence last Monday copies of two letters to the local newspaper in this regard which I have taken into account.
25 I think the fact you have family and other support is a positive for you because you will have support after you are eventually released from prison. I also received into evidence a letter from your partner in which she refers to the steps you have taken to seek treatment for your problems and of her continued support for you and of the undoubted hardship which your imprisonment has brought to bear on her and your children. I was told she is being evicted from her house because the landlord is to sell it and is having difficulty finding alternative housing in Donald. I have taken all of this evidence into account. As I say your imprisonment has and will cause family hardship which is invariably the case in these circumstances. That hardship here is not exceptional in my opinion.
26 I was told and accept that at the time of your offending your drinking was out of control. I was also told and accept that around the time of your offending you were abusing prescription medication that was prescribed for your partner for anxiety and depression. In addition you have been a long term user of cannabis. As I said these factors explain your conduct. They do not excuse it.
27 In your record of interview you explained all of your conduct so far as you could recall. You made full admissions and you expressed remorse for your conduct. All of these factors are to your credit. After you were arrested and charged you sought psychiatric help spending a week in a unit in Bendigo. You approached all of the hotels in Donald and implored them to refuse you alcohol. You have sought help for your problems with alcohol from your local general practitioner and through a drug and alcohol counsellor. It is to your credit that you have taken some positive steps to assist you in overcoming your drinking problem. On Monday last I was provided with a letter from you to the court in which you have again expressed remorse for your crimes and emphasised the hardship your incarceration is causing to your family and loved ones. Today I received another letter in similar terms. In passing sentence I have taken this letter into account.
28 I received a number of reports into evidence. I received a report from your general practitioner Dr Rachinsky concerning prescriptions he gave to you post offending to assist you deal with alcohol abstinence (Exhibit 2). I also received a report from one Casey Ross a social worker dealing with your efforts to overcome alcohol abuse. (Exhibit 1) I also received a copy email from a psychologist Peter Trask who has had limited contact with you. He makes it clear that whilst in jail you need ongoing psychiatric / psychological care.
29 I ordered the preparation for a pre-sentence report and have now received the report dated 8 August 2012 from Forensicare of Dr Clare McInerney. Dr McInerney’s report records that you have been assessed for mental health whilst in prison and found not have significant depression, anxiety or psychosis. Dr McInerney could find no evidence of you suffering any significant mood or psychotic illness and she could find no mental health explanation for your offending. Dr McInerney thought you of average intelligence with there being no overt evidence of you having suffered an acquired brain injury.
30 Dr McInerney opined you met the criteria for alcohol dependence syndrome and alcohol intoxication remains the most significant risk factor for recidivism. She noted that although you were prescribed treatment for depression and anxiety neither condition was clinically evident at a significant level at the time of her assessment.
31 I have taken Dr McInerney’s report and the other exhibits which I have referred to above in arriving at my sentence. I am of the opinion that you are only a moderate risk of re-offending in this way provided you do not drink to excess. In arriving at my sentence and in fixing a non parole period I have taken regard of the fact you have a good family and a number of friends who support you. I think you will benefit from a lengthy parole period because you need time in the community after release that is supervised by the parole board. Importantly, you will not be alone and will be supervised after your release on parole.
32 You have now been using your time wisely whilst on remand at Melbourne Assessment Prison. I received into evidence copies of various certificates showing you have completed a number of courses whilst on remand including attending Alcoholics Anonymous. In passing sentence I have had regard to these certificates.
33 In sentencing you I have had regard to your pleas of guilty to these charges and the time at which you indicated that you would plead guilty as I must pursuant to s.6(2)(e) of the Sentencing Act 1991. In your case you pleaded guilty at committal mention. There was no committal needed. I treat you as having pleaded guilty at the earliest possible opportunity. In so doing you have saved the community the time and costs of possibly several trials and that is to your credit. You have also saved many people from having to be called to give evidence against you. In sentencing you for these offences I have imposed a sentence less severe than I would have otherwise imposed had you pleaded not guilty and fell to be sentenced after conviction by a jury at trial for these offences. In imposing my sentence I will state the total effective sentence and non-parole period I would have imposed had you fell for sentencing after having been found guilty at trial by a jury in compliance with s.6AAA of the Sentencing Act 1991.
34 The offences in charges 1 to 9 are arson offences within clause 5 of Schedule 1 of the Sentencing Act 1991. I intend sentencing you to a term of imprisonment for each of those offences. That means that as you will be convicted of these charges and sentenced to a term of imprisonment, you are a “serious arson offender” within s 6B(2) of the Act. In those circumstances I am required to sentence you on Counts 1 to 9 as a “serious arson offender”. In doing so I must consider Part 2A of the Act.
35 In determining the length of any prison sentence imposed on charges 1 to 9, protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances. This does not mean that the principles of proportionality and totality of sentencing are to be disregarded unless, in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for here. In my opinion, the overall effective sentence I propose will properly and adequately provide for protection for the community. I note the position of the Prosecution is that I have not been asked to impose a disproportionate sentence.
36 Every term of imprisonment imposed on you as a serious arson offender for an arson offence must, unless otherwise directed by me, be served cumulatively on any other sentence I impose on you. See s.6E. I will impose some cumulation, and order some concurrency, which I regard as appropriate, taking account of all of the circumstances discussed. I am required to cause to be entered in the Court’s records that I sentence you as a serious arson offender in respect of any sentence imposed on you in that manner. Because of the number of like charges here, in arriving at a just sentence I must have regard to the principle of totality in sentencing.
37 Apart from protection of the public in passing sentence I must have regard to the application of the principle of general deterrence which I have earlier referred to. My sentence attempts to give appropriate application of this principle. I must also have regard to the principle of specific deterrence although in your case this principle has little application as you have no prior convictions for the offence of arson. Finally the sentence that I pass must record the court’s and the community’s denunciation of your offending. The sentence that I will shortly pass upon you I believe achieves this objective. Importantly, the sentence I impose must be fair.
38 In passing sentence upon you I have also had regard to current sentencing practices for the offence of arson as I must. Sentencing Snapshot no. 79 published by the Sentencing Advisory Council gives some statistics for sentencing in arson cases by Victoria’s higher courts between 2003 and 2008. Of the 72 persons sentenced for the crime of arson during that period the mean sentence imposed was two years imprisonment, meaning half of those sentence received a sentence of two years or less and half of those received a sentence of two years or more. Of the 72 persons sentenced 15 received a sentence of three years, five a sentence of four years, three a sentence of five years and one a sentence of eight years. The figures of course do not reveal the number of charges for which these individuals were sentenced nor the circumstances of offending. In passing sentence I have also had regard to a number of cases referred to in the Victorian Sentencing Manual.
39 When the plea resumed on 8 October I was asked by the prosecution to make a number of orders for compensation totalling in excess of $780,000. Those orders were not opposed by your counsel Mr Thyssen and I will make those orders which will leave you in debt for many years. Whilst in prison you may well consider entering bankruptcy as I infer from the plea made on your behalf you and your family live a very much hand to mouth existence and are fully dependent on welfare for financial survival. In passing sentence I have taken the fact of making these compensation orders into account. You will no doubt take legal advice about the effect of these compensation orders and what if anything you do about them.
Sentence
40 On Charge 1 arson you are convicted and sentenced to a term of imprisonment of four years.
41 On Charge 2 arson you are convicted and sentenced to a term of imprisonment of three years.
42 On Charge 3 arson you are convicted and sentenced to a term of imprisonment of four years.
43 On Charge 4 arson you are convicted and sentenced to a term of imprisonment of one year.
44 On Charge 5 arson you are convicted and sentenced to a term of imprisonment of three years.
45 On Charge 6 arson you are convicted and sentenced to a term of imprisonment of one year.
46 On Charge 7 arson you are convicted and sentenced to a term of imprisonment of three years.
47 On Charge 8 arson you are convicted and sentenced to a term of imprisonment of four years.
48 On Charge 9 arson you are convicted and sentenced to a term of imprisonment of one year.
49 On Charge 10 possess a drug of dependence you are convicted and fined the sum of $100.00.
50 I order and direct that twelve months of each of the sentences I have imposed on Charges 2, 3 and 8 and, four months of each of the sentences I have imposed on Charges 5 and 7 and two months of each of the sentences I have imposed on Charges 4, 6 and 9 cumulate upon the sentence I have imposed on Charge 1 and upon each other otherwise I direct that for the purposes of s 6E of the Act that the sentences I have imposed on the charges be served concurrently. This makes a total effective head sentence of eight years and two months imprisonment.
51 I direct that you serve a minimum period of five years imprisonment before becoming eligible for release on parole.
52 Pursuant to s.6F(1) of the Sentencing Act 1991 I direct that I have sentenced you on Charges 1 to 9 inclusive as a “serious arson offender” within s.6(B) of the said Act and I direct the fact of my having done so be entered into the records of this Court.
53 For the purposes of s.6AAA of the Sentencing Act 1991 I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of 12 years and I would have fixed a non parole period of eight years.
54 I declare that you have served 108 days in custody (not counting this day). Accordingly, pursuant to s 18(4) Sentencing Act 1991 I declare that the period of 108 days be reckoned as time already served under the sentences passed this day and be noted in the Court records.
55 The Office of Public Prosecutions has made application for retention of a forensic sample previously taken from you. The arson offences of which you have been convicted are each a forensic sample offence under the relevant schedule to the Crimes Act 1958.
56 Having regard to the seriousness of your offending, and the fact that the making of the order was not opposed by your counsel and it being in the public interest I am satisfied on a consideration of all the circumstances that the making of an order under s.464ZF is justified. I direct that a copy of the order and my reasons for making the order be served on you.
57 The prosecution also seeks an order for the disposal of various items taken from you as part of the investigation. That application was not opposed. Accordingly I have signed the order.
58 The prosecution seeks compensation orders which were not opposed. Accordingly I order pursuant to s 85B of the Act that you pay compensation as follows:
a. To Defence Service Homes in respect of Charge 1 the sum of $371,000.
b. To Michael’s of Donald in respect of Charges 2,5,7 and 9 the sum of $42,000.00.
c. To Buroke Shire in respect of charge 3 the sum of $160,000.00.
d. To Donald Football Club in respect of Charge 3 the sum of $35,764.00.
e. To Elders Insurance in respect of Charge 3 $114,750.00.
f. To Willis Australia in respect of charge 8 the sum of $157,316.00.
59 Any matters arising out of that Mr Dwyer?
60 MR DWYER: No, Your Honour.
61 HIS HONOUR: Mr Thyssen?
62 MR THYSSEN: No, Your Honour.
63 HIS HONOUR: Very well, would you remove Mr Martin please
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