Director of Public Prosecutions v McCracken

[2024] VCC 1081

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-02175

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMERON MCCRACKEN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2024, 18 July 2024
DATE OF SENTENCE:	19 July 2024
CASE MAY BE CITED AS:	DPP v McCracken
MEDIUM NEUTRAL CITATION:	[2024] VCC 1081

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:            Arson

Legislation Cited:           Sentencing Act 1991

Cases Cited:Nil

Sentence:  Term of imprisonment of eight months and a 20-month Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. L. Zubreckyi	Office of Public Prosecutions
For the Accused	Ms. I. Siriwardana	Victoria Legal Aid

HER HONOUR:

1Cameron McCracken, you have pleaded guilty on indictment to one charge of Criminal Damage by Fire, otherwise described as Arson, committed on 13 May 2023.

2In sentencing you for your crime, I am obliged to consider the maximum penalty for the offence to which you have entered your guilty plea. The maximum penalty for arson is 15 years' imprisonment. This maximum reflects the seriousness with which Parliament regards this offence.

3The circumstances of your offending were set out in a document entitled 'Further Amended Summary of Prosecution Opening' dated 1 July 2024. This is an agreed document and represents your acceptance of the elements of the offence, to which you have entered your guilty plea, as well as the factual basis on which I am to sentence.

The offending

4In short compass, at around 3 pm on 13 May 2023 you attended at Sacre Coeur Catholic Girls School, located at 172 Burke Road, Glen Iris. There were no children present at the time.

5You wandered around the school grounds for about 90 minutes. CCTV footage shows you peering into classrooms and looking around the grounds.

6At approximately 4.43 pm you approached two buses which belonged to Sacre Coeur. You used an unknown fire source to cause the driver's side of the bus to alight from the driver's side window that had been broken prior to your offending.

7About two minutes later you were observed walking away from the bus with a lit cigarette in your mouth and smoke emitting from the bus.

8A witness contacted Triple 0 at around 5 pm, having observed smoke and the inside of the bus on fire.

9Fire and Rescue Victoria firefighters attended the scene and extinguished the fire, and police were also contacted.

Investigation, arrest and interview

10Subsequent analysis by crime scene officers revealed major fire damage to the bus. Sacre Coeur made an insurance claim for the bus. Claims adjusters declared it as a ‘write-off ‘and that it would not be recoverable. The bus had been purchased by the school for $199,287.20.

11You were identified by police through viewing CCTV footage accessed from Sacre Coeur school. You agreed to an interview by appointment. You were arrested and interviewed by police in accordance with that appointment on 5 June 2023. In that interview you denied being responsible for setting fire to the bus. You agreed that you had been in the school grounds at the relevant time.

Offence gravity and victim impact

12There is no victim impact statement, but you are aware of the initial cost to Sacre Coeur Catholic Girls School of the bus. There was likely inconvenience caused in the loss to the school and its pupils of that bus, and for those charged with the responsibility of dealing with any insurance claim.

13Whilst your offence was committed at the weekend, reducing the risk to others, the school itself was close to residential addresses. It was neighbours to the school that were responsible for calling emergency services, not you. 

14Buses require some form of power. I am told the bus you set fire to was diesel, which raises some additional disquiet, but I have no evidence as to its potential for ignition, nor of the impact on the smoke which may have resulted and at least disturbed some of the local neighbourhood.

15I do accept that your offending appears to be spontaneous, nevertheless, it was not without its consequences and potential for harm. Arson carries significant dangers and risks in terms of damage to property, as well as potentially placing the lives of the individual, emergency services personnel and members of the community in harm's way.  Fire itself is inherently unpredictable and the risk of the fire spreading to neighbouring properties was obvious.

16The fact that your offence remains relatively unexplained is also cause for concern.

Plea of guilty

17The Sentencing Act 1991 obliges me to consider the stage at which you entered your guilty plea.

18It is conceded that yours was entered at an early stage, having been entered at committal mention proceedings held on 20 December 2023.

19It has saved the court the time and expense of contested proceedings and witnesses of the need to give evidence and therefore has utilitarian value.

20Remorse is harder to discern, but I accept that you have taken responsibility for your offending.

21These factor will all be taken into account in your favour.

Personal circumstances

22You are now aged 45 years.

23You were born in Melbourne and grew up in the family home in Moonee Ponds with your younger sister. You family later shifted to Kew where you remained until you were around the age of 13 years old.

24Your childhood would appear to be a difficult one. You report physical abuse from your father during which you sustained blows to the head, some of which lead to a loss of consciousness. Your mother and sister were also subject to your father’s violence to which you were also regularly a witness.

25Your parents separated when you were around 13 years. You moved to Mont Albert with your father and your sister remained with your mother.

26You completed a Year 9 education but were suspended in Year 10 for doing graffiti and did not return. In essence you struggled with learning at school and would also truant.

27You left home by the age of 19 years.

28Your reported employment history is as a car detailer for a few years and also as a car salesman. You struggled with the technology required for this job and were eventually fired. You have also worked in traffic control. I am told you have not worked since 2017.

29In 2018 you moved back in with your father as his carer as he had received a cancer diagnosis.

30You have had three long term relationships, but are not currently in one and do not have any children.

31You commenced drinking alcohol around the age of 16 years. Your use increased from the age of 35 when you would consume six standard drinks daily.

32You smoked cannabis in your adolescence, but have not used this substance for many years.

33You have taken Gamma-Hydroxybutyrate (GHB) on one occasion in 2017, which resulted in an overdose and your ending up in hospital in an unconscious state. You have not used that drug since.

34In your late 20s/early 30s you commenced smoking methamphetamine and would use that drug on most weekends. On your release from prison in April 2021, you ceased your use of this drug, but recommenced in December of that year and continued to do so up until your current period of incarceration.

35Your lifestyle at the time of your offending was characterised by chronic instability in your housing, living in that context with your father with whom you have a conflictual history, your poor psychological state and drug and alcohol misuse.

Criminal record

36Your criminal record is also part of your personal circumstances.

37

Your history commences at the Heidelberg Magistrates' Court on 19 September 1996 and is completed with an appearance at Moorabbin Magistrates' Court on

21 July 2022. Your history reveals some 18 court appearances.

38You have a history of causing criminal damage, dishonesty, some violence and of breaching court orders, which include bail orders, family violence orders and sentencing orders.

39It would indicate that you have not been deterred by the imposition of relatively short periods of imprisonment, nor to date have you been assisted by supervisory orders.

40Whilst not to be punished for your criminal history a second time, it is relevant to my assessment of the weight to attach in your sentencing to the principles of specific deterrence, denunciation and protection of the community. It is also a mechanism with which to assess your prospects for rehabilitation, to which I will shortly turn.

Expert reports 

41A Pre-Sentence Psychological Assessment Report dated 5 February 2024 and authored by Dr Fiona Morrison has been tendered on your behalf.

42You denied the offending to her but did report the time of your offending to be one of particular distress due to your unstable housing and not knowing the whereabouts of your mother. You were clearly using drugs at the time.

43In Dr Morrison’s opinion you meet diagnostic criteria for Paranoid Personality Disorder, Schizoid Personality Disorder and Schizotypal Personality Disorder and possibly also Borderline Personality Disorder and Avoidant Personality Disorder. 

44You also meet diagnostic criteria for Post Traumatic Stress Disorder linked to a multitude of traumatic incidents, which Dr Morrison opined would amplify some symptoms of your personality disorders - particularly in relation to paranoia and suspicion of others.

45Perhaps somewhat obviously, you were also diagnosed with Stimulant Use Disorder. Your conditions, in her opinion, partially explain your offending behaviour. Clearly your drug use also made a significant contribution.

46Dr Morrison saw your offending in the context of an “emotionally expressive fire setter.” Such fire setters have problems with communication, problem-solving and impulsivity and commit such offending as a “cry for help”.

47Your risk of future violence was rated as moderate, as was your imminent harm to others and your risk of future fire-setting. Your risk of recidivism was rated as high.

48Her assessment overall raises obvious concerns about how to best protect the community.

49Dr Morrison did indicate that you present as willing to engage with professional services, and that you have stabilised whilst in prison, given your removal from access to substance misuse.

50On your behalf a report authored by Ms Jane Lofthouse, Neuropsychologist, dated 5 May 2024 has been tendered. I should note that whilst I have had access to each of these reports in full, I am perhaps only summarising matters of relevance.

51Your Full-Scale Intelligence Quotient fell in the extremely low range. You have a pattern of global and significant impairment. It is likely, in her opinion, that you did suffer an acquired brain injury and she notes that you were found unresponsive on 4 February 2017 due to substance intoxication. This is likely to be the GHB overdose which you otherwise reference.

52Ms Lofthouse sees this impairment as a contributor to your offending. It is one that is likely to remain present into your future, so is also relevant to mechanisms to reduce your future risk.

53Ms Lofthouse notes that you have previously been diagnosed with Paranoid Personality Disorder, Schizotypal Personality Disorder and Post-Traumatic Stress Disorder, likely to be in existence since adolescence, and Stimulant Use Disorder, likely to be present since your early twenties. Ms Lofthouse opines that it is more than likely that your psychological disorders were also present at the time of your offending and were contributing factors to it. These are also likely to impinge on your future and require long term and intensive treatment.

54Whilst your use of drugs and alcohol obviously played a role, I am satisfied that a combination of your low intellect and considerable psychological disorders were in existence at that time of your offending and do provide some basis to reduce your moral culpability.   

55Dr Morrison was also of the view that your Paranoid Personality Disorder and Schizotypal Personality Disorder would make you more vulnerable in the prison setting, as you do not have adequate social skills to navigate that environment. Your presentation of paranoia would also likely result in heightened stress whilst in custody.

56To Ms Lofthouse, you did present as depressed and displayed a level of anxiety, which was above that which she expected. You obtained scores in the extremely severe range for depression and anxiety and in the severe range for stress. Ms Lofthouse described you as experiencing a significantly high level of psychological distress.

57This presentation, in combination with your other conditions, is capable of making your experience in custody more burdensome than it would be for someone without your unique presentation. This is another factor I take into consideration.

Prospects for rehabilitation

58In terms of your prospects for rehabilitation, you report a stable relationship with your father at present, although there is an intervention order in existence to which you are the respondent. You are distressed at the lack of any contact with your mother for over three years. Your sister currently has an intervention order against you as well, and I am quite uncertain, given conflicting information, as to the state of that relationship.

59In relation to this offending, you were charged and bailed by police on 5 June 2023, but were remanded into custody on unrelated offending on 11 September 2023, and your bail for the arson was revoked. On 29 April 2024, you were sentenced by the Magistrates' Court for unrelated offending to 20 days' imprisonment. You therefore have 292 days available by way of presentence detention, which is directly referable to the charge of arson. Otherwise, I take the principle of totality into account.

60Your period in custody from 11 September 2023, until today’s date, 19 July 2024, is the longest you have been required to serve to date and may well serve as both a sanction and a deterrent into the future.

61Ms Lofthouse does opine that your intellectual impairment will impact on your ability to engage in rehabilitation and needs to be considered in the development of treatment programs.  Your resort to drugs and alcohol, as you have done in the past, directly affects your other conditions and obviously needs to be addressed in order to reduce your risk. I accept that you need a considerable level of support.

62You have been able to access the assistance of the Nexus Program, which can assist you with accommodation, appropriate referrals and intensive case management upon your release. At your plea hearing evidence was called from Ms Amy Howell as to what that and the Exit 180 programme can offer. Her evidence was impressive. I note that any involvement by you in those programs would be voluntary.

63Those programs can assist you to apply for a Disability Support Pension. The advantage of the reports from Ms Lofthouse and Dr Morrison is that you and those that come to work with you are fully appraised of what problems need to be addressed and how best to approach your rehabilitation.

64The Nexus and Exit 180 programmes can co-exist with a Community Correction Order. You can be assisted with making an application for NDIS by those programs, which is recommended by Ms Lofthouse and this, in combination with the Nexus program, may well put you in a better position than you have been previously to navigate your way through life without drugs and alcohol and without intersection on the criminal justice system. It also gives the opportunity to focus on your recognised conditions and rehabilitative inputs that need to be undertaken.

65Whilst in custody you have also tried to get yourself ‘job ready’ by undertaking a Traffic Controllers Couse and undertaking other programs relevant to your return to the community. You appear to have used your time wisely. Certificates have been tendered on your behalf, as have clean urine screens.

Sentencing submissions

66The prosecution contend that a combination sentence, that is, a term of imprisonment in combination with a Community Correction Order, would adequately reflect all relevant sentencing considerations.

67Your counsel submits that time served is sufficient and rather than consider a Correction Order, the court should find comfort in the work you would be able to do voluntarily with the Nexus Program or Exit 180.

68In order to be better informed, I have had you assessed as to your suitability for a Community Correction Order.

69An assessment outcome report dated 9 July 2024 has been provided. You do have a history with Corrections Victoria. You have been assessed as suitable for a Community Correction Order. No barriers to your compliance were raised.

Sentencing

70I am about to turn to the sentencing exercise so I will just check with counsel whether there are any factual matters or other matters you need to raise.

71MS ZUBRECKYJ:  No, Your Honour.

72MS SIRIWARDANA:  No, Your Honour.

73HER HONOUR:  Thank you. The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

74I am also required to balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, offenders are rehabilitated, and safely reintegrated into society.

75I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principle of proportionality.

76Mr McCracken, on the single charge of arson you are convicted and sentenced to eight months' imprisonment, 292 days are reckoned as having already been served. I am of the view that there is considerable merit in having you supervised on your return to the community, firstly as part of a reflection of your offending, and secondly, as a means to support your rehabilitation.

77Therefore, the term of imprisonment is in combination with a Community Correction Order. The duration of that order will be 20 months.

78That order will include the following conditions:

(a)   That you be supervised by Corrections Victoria;

(b)   That you complete 125 hours of community service.  I have kept that as a minimum so that there can be focus on your rehabilitative treatment;

(c)   That you undergo assessment and referral for drug treatment;

(d)   That you undergo assessment and referral for alcohol treatment;

(e)   That you undergo assessment and referral for mental health treatment;

(f)    75 hours of treatment will be offset against the community work component.  So the more treatment, the less community work;

(g)   I will also take up the recommendation from Corrections Victoria, that you be judicially monitored by me. That has two roles. One, I can see how you are going with the Corrections Order, and secondly, I can ensure that Corrections Victoria are implementing programs which are designed to reduce your risk, noting that that risk was assessed to be a high one.

79The date for the judicial monitoring will be 17 October 2024 at 9.30 am. In addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is that you must not commit any other offences punishable by imprisonment during the 20-month period. You must also report within two working days of your release to the nearest Community Corrections office. You are also required to advise your supervising Corrections office of any change of address of where you are living or working, and you must do so within two clear working days. It is a term of all Community Correction Orders that you must submit to visits as directed and obey all of the instructions and directions of a Community Corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising Community Corrections office.

80In my view, this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. In essence, the Order can be breached if you do not comply with it in terms of the conditions or reoffend, as I have outlined, whilst it is in place.  If you do, you will have to appear before me for breaching the order and I may have to resentence you on the original charge and to sentence you for a separate charge of contravening the order. I can only place you on the order if you agree to be placed on that order and in a moment I will stand down so you can speak with Ms Siriwardana about that.

81Before I do so, s6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charge. If not for your plea of guilty, I would have sentenced you to 24 months with a minimum of
14 months before being eligible for parole.

82Ms Siriwardana, I will stand down temporarily so you can discuss the terms of the order and obtain your instructions from Mr McCracken.

83MS SIRIWARDANA:  Thank you, Your Honour.

84(Short adjournment.)

85MS SIRIWARDANA:  Your Honour, thank you for that opportunity. My client has confirmed his understanding and his commitment to adhering to that CCO,
Your Honour.

86HER HONOUR:  Thank you. I neglected to check with each of you the pre-sentence detention.

87MS SIRIWARDANA:  So 292 is correct, Your Honour.

88HER HONOUR:  Thank you. Mr McCracken, I look forward to seeing you in October and reading really good things. I certainly accept you are highly motivated to do things differently, and I am really pleased that you have got the work that you can do with Nexus. I know you have got the responsibility for the Corrections Order, but I was very impressed with what I heard from Ms Howell and I can see that she is with you today and was with you yesterday as well.

89So see you in October.  When you come in October I get a report from Corrections telling me how you are going and as I said before, sometimes that will tell me - there will be things I will need to talk to you about, about how you are going, but sometimes I will be talking to Corrections about why have you not got this moving, because you really need the help.

90Sometimes the attendance can be physical, depending on where you are living, like you come in here to the courtroom, sometimes Corrections will let you do it from their office. It is not going to worry me, as long as you show up one way or another. Any questions?

91OFFENDER:  No, Your Honour, thank you.

92HER HONOUR:  Good luck and thank you very much to Ms Howell as well. Thank you to each of you for your hard work in relation to this matter, it was very much appreciated. That completes this matter and you are excused and I will call on the next matter if you don’t mind, thank you.

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