Director of Public Prosecutions v Masterton, Thomas and Simpson, Jack
[2013] VCC 253
•6 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01766
CR-12-02064
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS MASTERTON and JACK SIMPSON |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2013 | |
DATE OF SENTENCE: | 6 March 2013 | |
CASE MAY BE CITED AS: | DPP v Masterton, Thomas & Simpson, Jack | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 253 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | MS S ISAACS | Office of Public Prosecutions |
| For the Accused Masterton For the Accused Simpson | MS J. FISCHER |
HIS HONOUR:
1 I will proceed to sentence. Both of you can remain seated for the time being.
2 Each of you has pleaded guilty to an indictment containing 11 charges. Those charges involve two offences of arson, three offences of theft, two offences of attempted burglary, three offences of criminal damage and one offence of burglary.
3 You, Masterton, have also admitted two related summary offences, that of using cannabis and an offence of going equipped to steal, being in possession of a home-made balaclava.
4 The offences to which you pleaded guilty are all serious offences. The charge of arson carries a maximum term of imprisonment of 15 years, theft, a maximum of 10 years, criminal damage, a maximum of 10 years, attempted burglary, five years, burglary, 10 years, use of a drug of dependence only five penalty units, going equipped for stealing, a maximum term of imprisonment of two years.
5 You, Masterton, also admitted prior convictions. All of those were for offences committed in New Zealand between 2003 when you were about 18/19 years of age, and 2008, when I think you were about 23 or thereabouts. None of those offences are anything like as serious as the offences on the indictment, it seems to me, and I do not regard them as significant in this sentencing exercise, although perhaps they are reflective of the kind of life that you, Masterton, have been leading since your early to mid teenage years.
6 You, Simpson, have no prior convictions.
7 The prosecution has tendered and read to the court a prosecution opening. That is Exhibit 1 on this plea, and I incorporate that in its entirety into these reasons for sentence. I am not going to read that out again. It deals with a course of conduct which you embarked on in the early hours of 2 May 2012 when both of you had been drinking tequila and scotch together for some time and were apparently intoxicated.
8 The first offence that you committed at a residential address at 90 Civic Parade Altona was the offence of arson whereby you set fire to the kitchen area of the house which was unoccupied. You caused a considerable amount of damage to the house. It required the attendance of the Metropolitan Fire Brigade who put out the blaze. In all the incident required the utilisation or movement of 11 Metropolitan Fire Brigade appliances, utilising nearly 40 fire fighters. In addition asbestos was identified on the site. That resulted in several appliances being offline for a period of time, and protective clothing being bagged and sent for specialist cleaning.
9 The cost to the owner of your offending conduct resulted in a dilemma as to whether to demolish the house or to rebuild the house. Apparently the likely cost of demolishing and cleaning the site would be about $15,000, or rebuilding between $300,000 and $400,000. In addition the owner was sent a bill by the Metropolitan Fire Brigade for $20,700 for the cost of the Metropolitan Fire Brigade attendance.
10 It is to be noted that because, even though the house appeared to be vacant, it was not clear to the Fire Brigade crews who attended that the building was empty, and it was necessary for them, wearing breathing apparatus, to conduct a search of the premises whilst simultaneously fighting the fire. That had the potential to put them in danger. Of course, having lit the fire, you had no control over what other damage might have been caused to adjoining properties, and indeed, what injuries might have resulted to fire fighters or other emergency services personnel who might be required to attend in the course of duty.
11 Arson clearly is to be regarded as a very serious offence for, amongst others, those reasons that I have identified. There is a high degree of need for the courts to denounce conduct of that kind, to punish those persons responsible adequately and to impose sentences that deter others from committing offences of that kind.
12 You went on to commit a number of other offences which were generally in the category of wanton vandalism, utterly stupid, but showing a total disregard for the property of others and with consequences that affected at least some of the owners of the property, emotionally as well as in the hip pocket.
13 Offences of burglary are serious offences. It is clear that in relation to Charges 10 and 11, and indeed Charges 8 and 9, that you were motivated by dishonesty as well as an intent to cause damage.
14 However, I accept that the other 10 offences on the indictment to which you pleaded guilty are not nearly as serious as the offence of arson, the subject of Charge 1.
15 Turning to matters personal to each of you, and dealing first with you, Masterton, your counsel tendered on your behalf reports of Mr Ball, psychologist, dated 1 March of this year, and a report from Dr Mulroney, a family physician dated 25 February of this year.
16 Conveniently, Mr Ball sets out in his report a history of your background. It is clear that you had a disrupted childhood in New Zealand and a disrupted education. It seems that you have suffered from attention deficit hyperactivity disorder for a number of years, and that will no doubt have affected your education and your childhood.
17 You apparently started self-medicating, I think is the way it was put, with cannabis and alcohol from the age of 12, then methylamphetamine from the age of 14. During your teenage years you lived on and off with your parents and other family members. You were an unskilled labourer in New Zealand and have been a casual on-call forklift driver in Australia.
18 Apparently you have made some attempt to come to terms with your substance abuse and in recent times have engaged with the Salvation Army. That is to your credit and it gives some hope for your prospects of rehabilitation.
19 There is some suggestion in the material that in addition to the attention deficit hyperactivity disorder from which you suffer there are serious personality issues, and also the possibility at least of bi-polar disorder. It may well be that you will require psychological and/or medical assistance with those conditions in the future. There is no doubt also that unless you get some further help with your what is described by Mr Ball as poly substance dependence, it will be difficult for you to lead a happy and productive life and to stay out of trouble in the future.
20 That you have made some effort to do that already does suggest that there are guardedly reasonable prospects of rehabilitation. I cannot put it any higher than that, and I think that much will depend upon your own willingness to put in the efforts required to deal with the issues identified by Mr Ball, all also perhaps by Dr Mulroney.
21 You are 27 years of age now, and although you do have prior criminal history from New Zealand, it is noteworthy that you do not have any prior criminal history in Australia, and apparently have not offended since this offending spree other than the offence that I was told about, which involved you reporting to police that you had been using cannabis, apparently because you were homeless and thought it was a better option to try and get yourself put into custody.
22 I note that you do not have the benefit of support of family, and I think that it is going to be hard for you without the kind of supporting structures that Mr Simpson, your co-offender, is fortunate enough to have.
23 Nevertheless, you have pleaded guilty to the offences at the earliest reasonable opportunity, and I accept that you have shown some remorse for your conduct on this particular occasion. It is also, I think, to be noted that you did assist the police by providing a witness statement at a time when it looked as though your evidence might be required to make out a case against your co-offender. That is a relevant consideration in determining an appropriate sentence.
24 I will now move on to deal with the circumstances personal to you, Simpson. You are 19 years of age, 19 years at the time of the offending, almost 20.
25 Your counsel provided me with a report from Mr Ian Joblin dated 12 November last year. Helpfully, it sets out much of your background which has been somewhat disrupted by the break-up of your parents' marriage. You were living with your mother for a while, but it seems that in more recent times you have been living with your father. When you went to live with your father, your grades at school all improved and you were able to complete Year 12 in 2011. That is very much to your credit, and I think to the credit of your father. I note that he has been in court and it is clear that he is there to support you. You regard him as your mate. It was unfortunate that you did not heed what I understand was his advice on the night not to go out, because if you had, you would not have got yourself into this mess.
26 Mr Joblin characteristically provides a realistic picture, which I think is incisive and balanced. Of course he had to report what you said to him about your offending conduct, and it is not his job to cross-examine you as to precisely what happened and why. The most telling aspect of his report, I think, is that you indicated to him and convinced him that you were totally regretful of your offending, that in the absence of your co-offender on that night, these offences simply would not have occurred, to quote Mr Joblin.
27 He also went on to say that you are contrite in that you are very aware of the wrongness of your behaviour. Mr Joblin went on to say, "He was self-deprecating. Under those conditions there is in my opinion evidence of contrition. There is no doubt that he is very aware of the seriousness of the offending and that he laments that."
28 Mr Joblin does not always go into bat for people and he has gone into bat for you. When he does go into bat, one takes notice of it as a Judge of this court.
29 You have pleaded guilty to these offences and I do not regard the relative lateness of your plea as being significant. It seems to me that there were issues that needed to be resolved. I am certainly not entirely convinced that you have given anybody a truthful account of exactly what occurred and why on that particular night. I think you will know in your own heart what occurred, but there has been, I think, a tendency to point the finger at your co-offender rather than accepting full responsibility for your own conduct on that particular night. I think it is important that you do face it. You have perhaps admitted it to yourself, but you may have to admit it beyond that, I think.
30 Nevertheless, I think it is fair to say that given you have no prior convictions and you are obviously an intelligent young man with good support that your prospects of rehabilitation are very good. I think it is unlikely that you will offend again. This will have been a huge lesson for you. It places a sentencing Judge in a position of some difficulty because you are a young man who ordinarily should be going into custody for the first time. There is no doubt, having regard to the report of Mr Reardon prepared today, that you meet the criteria for a Youth Justice Centre order. I think that you are particularly vulnerable. I suspect from what Mr Joblin has to say, and reading between the lines as well as the text of Mr Reardon's report that there is a real risk that by going to a Youth Justice Centre the prospects of your long-term rehabilitation may be adversely rather than positively affected.
31 There is a body of law which supports the proposition that there is a community interest in treating the rehabilitation of youthful offenders as being a very significant if not the most significant sentencing consideration.
32 I have to say that my strong inclination was to make a Youth Justice Centre order in your case. The only alternative that is open is that of a Community Corrections Order which is what your counsel has urged me to consider.
33 Parliament has introduced Community Corrections Order and the Parliamentary speeches have indicated that it is to be regarded as a sentencing option even in serious cases as an alternative to imprisonment or other custodial options.
34 On balance I am persuaded in your case that I can appropriately make that order despite the serious nature of the arson offence in particular, the subject of Charge 1.
35 The order that I have in mind making is one which will involve a substantial amount of community work, and you will be required also to abide by a number of conditions, which I will come to in a minute.
36 I now proceed to sentence each of you, and I will start with you, Mr Masterton, so if you would just stand, please.
37 Doing the best I can to balance the sentencing principles that I have to have regard to, on Charge 1, I sentence you to imprisonment for a period of two years and six months.
38 On Charge 2 of stealing property, namely the wheelie bin, I sentence you to imprisonment for one month.
39 On Charge 3, I am required to sentence you as a serious arson offender, but having regard to the submissions of the prosecution and my own view of the matter I do not see any need to impose a sentence that is disproportionate to your criminality and I do not regard the criminality of this particular arson offence as particularly high, I sentence you to a term of imprisonment of three months.
40 On Charge 4 of damaging a table belonging to a business in Altona, I sentence you to one month imprisonment.
41 On Charge 5 of attempted burglary of the Saigon Sun Restaurant, I sentence you to a term of imprisonment of 12 months.
42 On Charge 6 of attempted burglary of the Altona RSL, I sentence you to a term of imprisonment of 12 months.
43 On Charge 7 of damaging outdoor furniture at the RSL and a television at the RSL, I sentence you to a term of imprisonment of six months.
44 On Charge 8 of damaging an EFTPOS machine at the Mosaic Restaurant, I sentence you to eight months' imprisonment.
45 On Charge 9 of stealing a cash register belonging to the Mosaic Restaurant, I sentence you to imprisonment for 10 months.
46 On Charge 10 of burglary of the premises of Altona Beach Bites I sentence you to imprisonment for a period of 15 months.
47 On Charge 11 of stealing two remote controls from those premises, I sentence you to imprisonment for a period of three months.
48 For the offence of using cannabis to which you have pleaded guilty, I convict you and discharge you.
49 For the offence of going equipped to steal I sentence you to imprisonment of one month.
50 The sentence on Charge 1 is the base and I order that one month of the sentence on Charge 3, three months of the sentence on Charge 5, three months of the sentence on Charge 6, two months of the sentence on Charge 8, and three months of the sentence on Charge 10 be served cumulatively upon one another and upon the sentence imposed on Charge 1, which gives a total effective sentence of three years and six months.
51 It was urged upon me that I should give you a substantial period during which you will be the subject of the supervision of the Parole Board and I am inclined to accede to that. I order that you serve a period of two years before becoming eligible for parole.
52 But for your pleas of guilty I would have sentenced you to a total effective sentence of four years and four months and ordered that you serve a period of three years before becoming eligible for parole.
53 I make the various ancillary orders that were the subject of application, that is for the retention of a forensic sample, the disposal of property and for compensation in accordance with the drafts with which I have been provided.
54 I think there is one day, is it, pre-sentence detention?
55 MS ISAACS: Yes, Your Honour.
56 I declare that pre-sentence detention of one day is to be reckoned as time served on the sentence that I have just imposed and deducted from the sentence that you will be required to serve.
57 All right. You can take him down.
58 MS FISCHER: Could Your Honour order that the report from Dr Ball and Mulroney be sent with him.
59 HIS HONOUR: Yes, I will order that, and it will be noted on the order.
60 MS FISCHER: And that there are concerns about self-harm as well.
61 HIS HONOUR: All right. I note that there are concerns about management in connection with his mental health and concerns about self-harm and we will have that noted on the order and that the reports of Mr Ball and Dr Mulroney accompany him.
62 MS FISCHER: I have spoken to him about the release of those and he agreed with that.
63 HIS HONOUR: It might be more convenient if you left him here whilst those orders are prepared, and you can take him down in a minute.
64 MS ISACCS: Your Honour, pardon me, if I may, the only other matter ancillary in relation to Mr Masterton as for Mr Simpson is disposal orders.
65 HIS HONOUR: Yes, the disposal orders. Did I note mention that? I'm sorry, I may not have done.
66 MS ISAACS: I may have missed it.
67 HIS HONOUR: At any rate I do make the disposal order as well. You can sit down, Mr Masterton.
68 Mr Simpson, I am giving you the option of agreeing to participate in a Community Corrections Order in relation to each of the offences to which you pleaded guilty. I have it in mind that you will be required to perform community work to a total of 150 hours during the ensuing 12 months. During that time you will also have to abide by some other conditions. I am going to read those conditions to you, and unless you agree to be bound by those conditions, then I am not in a position to make the order. Do you follow?
69 PRISONER SIMPSON: Yes.
70 HIS HONOUR: The first condition is that you must not commit, whether in or outside Victoria during the period of the order any offence punishable by imprisonment. Secondly, you must comply with any obligation or requirement prescribed by the regulations. Thirdly, the offender, that is you, must report to and receive visits from the Secretary of the Department of Corrections or his or her nominee. You must report to the Community Corrections Centre specified in the order within two clear working days after the order has come into force.
71 Somebody will tell me what the Community Corrections Centre nearest to your home is. Is there one in Altona?
72 MS ISAACS: To be quite honest, Your Honour, I don't know.
73 HIS HONOUR: Do you know, Mr Reardon?
74 MR REARDON: Your Honour, I would love to be able to tell you, but I have no idea.
75 MS FISCHER: Your Honour, it may be that Sunshine Office of Corrections might be the appropriate one. I note that when these matters were in the summary stream, they were going to be at Sunshine Magistrates' Court, so that would indicate that it would be in that same area.
76 MR REARDON: Your Honour, I actually think you have to get him assessed first.
77 HIS HONOUR: Not for an order that doesn't exceed 300 hours which doesn't contain any other conditions.
78 MR REARDON: Otherwise, my understanding is that the (indistinct) officers would then supply the court the times and the dates the person would be attending and what office that they'd be attending.
79 HIS HONOUR: That would happen if I was required to have an assessment, but I am not, not for this. Anyway, we will work out which is the nearest centre for you to report to. One in Werribee?
80 MR CASEY: Yes, that would be the closest.
81 HIS HONOUR: It would save crossing the bridge. All right. You will be required to report to the Community Corrections Centre specified in the order, which will be Werribee, within two clear working days, and I guess that would be probably Monday, wouldn't it?
82 MR CASEY: I'll make sure he goes tomorrow, Your Honour.
83 HIS HONOUR: The next condition is that you must notify the Secretary of the Department of Corrections or his or her nominee of any change of address or employment within two clear working days after the change.
84 You must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary of the Department of Corrections or his or her nominee, and you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
85 I have specified that the order would be for a period of 12 months, but if you complete, or once you have completed, if you do, the 150 hours of community work that will be a condition of the order, then the order will come to an end automatically at that time. Do you follow?
86 I would say that your father will probably ensure that you keep up to the mark on this, but it is up to you also, because if you do not comply with the terms of the order, then you will be back here. It is an offence not to comply with the terms of the order, and if you do not comply, then you will come back, probably before me, but if not, maybe in front of some other judge who will almost certainly impose a custodial sentence of one kind or another in its place. All right? So this is your opportunity. Are you willing to abide by all of those conditions?
87 PRISONER SIMPSON: Yes.
88 HIS HONOUR: I will have the order drawn up, and you can consider and sign the order with your counsel in a moment.
89 But for your pleas of guilty I would have sentenced you to a Youth Justice Centre order for a period of two years.
90 In your case also I make the various ancillary orders. I think I have got the wrong order now for him to sign in relation to s.464ZF(b)(i). I will provide you with copies of those orders. Thank you Mr Reardon; thank you for your cooperation.
91 I'm sorry, Ms Isaacs, you were going to say something?
92 MR ISAACS: No, Your Honour.
93 HIS HONOUR: I will have the correct order drawn up. I have to say that the one I had drawn up was the one that would have been appropriate had he been going to the Youth Justice Centre.
94 MS ISAACS: Yes, Your Honour.
95 HIS HONOUR: But the terms of the report of Mr Reardon, I think, along with Mr Casey's advocacy - - -
96 MR CASEY: I think Mr Reardon, Your Honour. Your Honour, there was an order for my client to undergo a forensic procedure. I think Your Honour has to direct him in open court.
97 HIS HONOUR: I do, but I haven't got the correct order. I think I can probably say this, that the order will require you to provide a sample of your DNA by a scraping from the inside of the mouth, and you will have to report to a police station for that purpose. I guess that probably will be Werribee Police Station. Yes? Probably the most convenient one. And when required to provide the sample, if you provide it, well, that will be the end of the matter. If you fail or refuse to provide a sample by a scraping from the inside of the mouth, the officer will be authorised to take a sample of blood and may use reasonable force in order to obtain that sample. I am sure you will not put them to that trouble.
98 That will be the effect of the order that I will make. There will be a requirement that you attend within a specific period of time, which I think will be - - -
99 MS ISAACS: 28 days.
100 HIS HONOUR: 28 days from today. Within 28 days you will be required to report to the police at Werribee in order to provide that scraping from the inside of your mouth. Do you follow?
101 MS ISAACS: Your Honour, may I ask on this occasion, the making of a CCO, does s.6F need to be noted on the order?
102 HIS HONOUR: Yes, I think it does, in relation to the offence of arson, the subject of Charge 3, I sentence you as a serious arson offender, but as I have already indicated, I do not regard it as being necessary to impose a sentence that is disproportionate to the sentence ordinarily required for this offending conduct.
103 MS ISAACS: Thank you, Your Honour.
104 HIS HONOUR: You can sit down whilst the orders are being prepared. If I did not say it already, I make the disposal order and the various orders for compensation in accordance with the drafts that I have been provided with, and I will not read those out, but you are aware of all of those.
105 MR CASEY: Yes, Your Honour.
106 MS FISCHER: Your Honour, could we ask that a copy of the order be sent to the parties, my instructor?
107 HIS HONOUR: If you hang around, you'll probably get a copy. It is rather long, the order, because of the various compensation orders that are included in it.
108 MS FISCHER: Your Honour, while you are doing that, can I have a word to my client?
109 HIS HONOUR: Yes, of course.
110 MS FISCHER: Thank you.
111 HIS HONOUR: Ms Fischer, do you have spare copies of the reports?
112 MS FISCHER: I do, Your Honour.
113 HIS HONOUR: That might go with the - - -
114 MS FISCHER: I'm not sure that I have a spare copy of the report of the doctor in Toorak, sir, I was looking for that (indistinct).
115 HIS HONOUR: I gave my copy to be copied. You've got a copy there?
116 MS FISCHER: I've got a copy of David Ball's report there, I took an extra one, Your Honour.
117 HIS HONOUR: I'll provide a copy of this one for copying, if the two can go together with the orders.
118 MS FISCHER: Thank you, Your Honour.
119
HIS HONOUR: Mr Simpson, you can leave the dock now. We'll just wait for the material to be provided for Corrections. All right. You can take
Mr Masterton down. Mr Simpson, I am sure you realise how close you came.
120 MR CASEY: I will reinforce it, Your Honour.
121 HIS HONOUR: I thank counsel for their assistance.
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