Director of Public Prosecutions v McGrath

[2019] VCC 209

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

AT WODONGA
CRIMINAL JURISDICTION

CR 18-01826

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON JAMES MCGRATH

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Wodonga
DATE OF HEARING:	19 February 2019
DATE OF SENTENCE:	22 February 2019
CASE MAY BE CITED AS:	DPP v McGrath
MEDIUM NEUTRAL CITATION:	[2019] VCC 209

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Solicitors for the Office of Public Prosecutions
For the Accused	M H Rattray (for Plea) Ms S. Wilson (at Sentence)	Sally Wilson Legal

1HIS HONOUR: Jason James McGrath, you have pleaded guilty to one count of intentionally causing a bushfire contrary to s.201A of the Crimes Act 1958.

2In addition, you have pleaded guilty to two summary offences, namely unlawful assault, contrary to s.23 of the Summary Offences Act 1966, and contravening a family violence final intervention order contrary to s.123(2) of the Family Violence Protection Act 2008. You have consented to this court hearing your plea in relation to those two summary offences.

3The details of your offending were set out in detail in the prosecution opening, which document was tendered as Exhibit B at your plea hearing.  In summary, the circumstances of your offending were as follows.

4On 3 February 2017 you were served with a family violence intervention order issued by the Magistrates' Court at Shepparton.  That order prohibited you from committing family violence against your then de-facto partner, with whom you had resided for approximately two years.  You were permitted to continue to live at the residence where you had been residing with her.

5On the afternoon of 30 November 2017 you and your former partner argued.  You left the residence at about 3 pm and returned some five hours later.  On your return, you were affected by alcohol, and your dispute with her continued.  You again departed from the home, returning at about 11.15 pm, further affected by alcohol.  At one point during your protracted argument, you stood over your former partner, grabbed her by the throat and started to choke her.  She managed to get free herself from you.

6Police photographs taken later that night show red marks on your former partner's neck.  This conduct constituted the offences of unlawful assault and of contravening the family violence intervention order.

7You left the residence and you commenced walking, apparently towards your parents' home at Corowa, some considerable distance away.  At approximately 2.20 am on the morning of 1 December 2017, you were on the Chiltern-Rutherglen Road at or near Cornishtown.  You used a cigarette lighter to light some dry grass on the roadside.  The conditions were windy. 

8The fire burned quickly and got out of control.  You walked away along the road.  You did nothing to raise any alarm.  The fire quickly spread onto a property on the Chiltern-Rutherglen Road and towards residential premises on that property, which were occupied by a couple and their child.

9Nine CFA units attended to fight the fire, assisted by the male occupant of the property.  After some two hours, the fire was extinguished.  Eight to ten acres was burnt out, fences were damaged.  The fire burned to within some 20 metres of the house paddock.  I consider that you must, at that time of night, have seen that the fire had spread quickly onto farmland, and that CFA vehicles had attended.  You rendered no assistance.

10You were arrested by police as you continued to walk along the road about an hour after the fire was lit by you.  You denied lighting the fire.  You later participated in a record of interview with police. You again denied lighting the fire.  You denied having a cigarette lighter on you.  Later, at the conclusion of the record of interview, you told police that you had lit the fire.  You said that you had intended to stomp it out, but that it had burnt too fiercely.  You admitted to having possession of a lighter, and that you had later put it in a roadside bin.  This conduct constitutes the offence of intentionally lighting a bushfire.

11Two days after the plea hearing, your counsel tendered as Exhibit 4, with the consent of the prosecution, a document entitled "Past Weather in Rutherglen, Victoria, Australia, December 2017".  He described the document as showing that the wind at about the time that you lit the fire was reported as being 6-7 km/h at Rutherglen, with a temperature at Rutherglen of 21 degrees.  The document refers to conditions at Rutherglen, rather than Cornishtown, some distance, although not a great distance, away from where you lit the fire.

12I note that in paragraph 15 of the prosecution opening, it is said that you had stated to police that you had intended to stomp the fire out straight away, but the conditions were windy and the burning quickly became fierce and got out of control.  You are taken to have agreed to the accuracy of the prosecution opening for the purposes of your plea.  I consider that it is plain from what you told police that you understood that the conditions at the time were dry, and were windy.  It is no surprise that the fire spread quickly.

13By way of background, you are 27 years old.  At the time of your offending behaviour you were age 26.  You were raised in the Corowa area.  You are single, but the father of a two-year-old son who resides with his mother, your former partner.  You enjoy relatively good physical health.

14You completed Year 11 at school and left during Year 12.  You completed an apprenticeship as a groundskeeper at a golf club.  You ceased working in that capacity due to the loss of your driver's licence.  For a time you worked as a concreter and in the building industry.  For the year leading up to your offending, you were unemployed.

15For the past year you have been employed as a farm labourer.  Since your offending, you have resided at Corowa with your parents.  You play regular golf and squash with friends.

16A report from a neuropsychologist Leanne Matthews, dated 27 August 2018, was tendered on your behalf.  Her report contained a detailed account of your upbringing and general background, which was largely consistent with the background as provided by your counsel.  Ms Matthews noted, and I accept, that you had some anger issues during the time of your relationship with your former partner, that you had intellectual abilities in the upper bounds of the borderline range, you presented with mild levels of depression and moderate levels of anxiety and stress.  You had the capacity to learn and benefit from rehabilitation and intervention.

17The only purposes for which sentences may be imposed by this Court are to punish the offender to an extent, and in a manner which is just in all of the circumstances, to deter the offender or other persons from committing offences of the same or of similar character, to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated, to manifest the denunciation by the court of the type of conduct in which the offender engaged, and to protect the community from the offender.

18I am conscious of the provisions of s.5(4) and s.5(4C) of the Sentencing Act 1991, which provides in substance that in determining the sentence to be imposed in respect of an offence, the court must not impose a sentence that involves the confinement of the offender, unless it considers that the purpose or purposes for which the sentences imposed cannot be achieved by a sentence that does not involve the confinement of the offender, or cannot be achieved by a community correction order with certain conditions attached.

19I am required by the act to take into account a number of matters, including the nature and gravity of your offending, your culpability and degree of responsibility for the offence, the maximum penalties prescribed by Parliament for the offence, current sentencing practices, the degree to which you have shown any contrition for the offence, whether you pleaded guilty to the charge in respect of the offence and if so, at what stage of the offence, the degree to which you cooperated with law enforcement agencies, the deterrent effect that any sentence may have on you or other persons, the need to ensure that you are adequately punished for the offence, your character, antecedents, age, means and your physical and mental condition, and your prospects of rehabilitation.

20In regards to the circumstances of your offending, I find the offending to be serious, and your moral culpability to be high.  The maximum sentences prescribed by Parliament for the offence of intentionally lighting a bushfire is 15 years' imprisonment.  That maximum penalty demonstrates just how serious Parliament considers the offence to be.  The maximum penalty for unlawful assault is three months' imprisonment, and the maximum penalty for contravening a family violence intervention order is two years' imprisonment.

21With regard to the assault, I note that it appears to have been entirely unprovoked.  It was probably contributed to by your consumption of alcohol.  Violence by men towards women is regrettably a common and serious occurrence in our community.  But there would be few in this community who would condone it or consider that such conduct should not be severely punished.  Intoxication is no excuse for such conduct.

22With regard to the breach of the family violence intervention order, such breach is a serious disregard of a serious court order, of which I consider you would have had a clear understanding at the time.  It demonstrates a true contempt for that court order.

23I take into account that the assault and the breach of the order involved essentially the same conduct by you, rather than separate actions. 

24With regard to the intentional lighting of a bushfire, I consider that there would be few, if any, residents of any rural region in this state who are not fully aware of the dangers of fires and the real risks of disastrous damage to rural assets, to homes, to stock, and to human life.

25You have spent most, if not all of your life in such a rural area.  It is likely, in my opinion that residents of this region would consider that your conduct in lighting the fire was a truly despicable act.  You told police that you intended to light the fire and then stomp on it and put it out.  I have real difficulty accepting this.  I am unable to understand why anyone would light a fire if their intention was to immediately put it out.  I am not satisfied that you had that intention.

26You would have well known that the area where you lit the fire was dry, and that it was windy.  I take into account that although fire restrictions were in place, it was not a day of total fire ban in the district.  Your culpability and responsibility for this offence is plainly high.

27Notwithstanding, there are a number of matters that ought to go in mitigation of your sentence.  Firstly, you have pleaded guilty to the offence.  Although you initially denied lighting the fire, soon after your record of interview, you had confessed to it.  This was an early indication that you would plead guilty to the offence.  I consider that that plea of guilty demonstrates some remorse for your offending. 

28Further, your plea of guilty has utilitarian benefit in that witnesses were not required to give evidence at the trial, and court resources were saved.  You are entitled to a discount in penalty on that account.

29Your counsel submitted, and I accept, that you have relatively good prospects for rehabilitation.  You have a limited prior criminal history consisting of stalking, driving in a manner dangerous, minor theft, and throwing an object from a moving car.  You have a fair work history, and have been productively employed for the last year.  You appear to have good family support.  There is no suggestion that you have reoffended in the period since December 2017.

30References were tendered on your behalf from your mother, and from a Mr Hetherington.  He considers that you have learned from your mistakes and are ready to turn your life around.  He states, and I quote, that he "has full knowledge of your charges", but he does not identify in his letter what his understanding of those charges are. 

31I note that you have advised your current employer of the nature of the summary charges that you pleaded to, but you have not told him about the charge of intentionally lighting a bushfire, or your plea of guilty to it.

32Your mother comments upon how low you were at the time of your offending, and how you have progressed since.  She comments on your enthusiasm for your current work, and your enjoyment of sporting pursuits.  I take each of those references into account.

33Your counsel submitted that alternatives to incarceration were available and appropriate in your case.  He submitted that an appropriate penalty would be the imposition of a community correction order with significant conditions.  The prosecutor submitted that such a community correction order was within the range of appropriate sentences.  Nevertheless, the sentence to be imposed is my decision, and I am not bound in any way by submissions of counsel.

34I have had regard to a number of decisions of this court and the Court of Appeal regarding sentencing of offenders for lighting bushfires.  These include the matters of Marshall and Ashley in 2016, the County Court sentence in Brown, in  2016, Danielz, a 2015 County Court sentencing decision, and the Court of Appeal decisions of Robson in 2018, Saxe in 2014, and Lyle in 2017.

35Not surprisingly, the facts differ from case-to-case.  None of these other decisions to which I have referred could be described as being on all fours with your case.  In summary, in some of those cases the sentencing judge or sentencing court considered that the purposes of sentencing could be satisfied by a non-custodial sentence, whilst in others the judge or court considered that an immediate term of imprisonment was required.

36Taking all of the circumstances of this case into account, I am satisfied that the purposes for which you are to be sentenced cannot be satisfied by an entirely non-custodial sentence.  I consider that in relation to the offence of intentionally lighting a bushfire, a term of imprisonment of six months' duration with a two-year community correction order commencing on your release from prison with appropriate punitive and treatment conditions is of a just severity appropriate in all the circumstances to your offending.

37Such a combined sentence, a period of imprisonment and the community correction order, is, I consider, necessary to punish you in a manner which is just in all of the circumstances, to deter you and equally importantly others in the community from committing offences of the same or similar character in the future, and to establish conditions where your rehabilitation may be facilitated, and further to manifest the court's denunciation of your offending behaviour.

38I have received a report of Corrections Victoria dated 19 February 2019 indicating that you are considered suitable for such a community corrections order.  However, before I am able to make any such community correction order, or any combined sentence as I have outlined, the Sentencing Act requires me to ascertain that you will consent to such a Community Corrections Order. 

39In fairness, before I ask you whether or not you do consent, I should advise you of the conditions that I intend to attach to such an order.

40Firstly, there are a number of mandatory conditions which apply to every community correction order that is made. These are set out in s.45 of the Sentencing Act.  You will no doubt receive a copy of these from your solicitor in due course, but nevertheless, listen carefully now if you would.

41The first of those mandatory conditions are that you must not commit, whether in or outside Victoria, during the term of the community correction order, which will be for two years, any offence punishable by imprisonment.

42Secondly, you must report to and be prepared to receive visits from Corrections Victoria officials during the period of the order.

43Thirdly, you must report to the designated Community Corrections Centre, which is 9 Watson Street, Wodonga, within two clear working days after the community correction order comes into force.  That will be within two clear working days of your release from prison.

44Fourthly, you must notify Corrections Victoria of any change in your address or any change in your employment within two clear working days of such a change.

45Finally, the mandatory condition set out in the Act is that you must not leave Victoria except with the permission of Corrections Victoria for any reason.

As that stands, if you go to Albury, you have left Victoria, and I am sure you will understand that.  If you do at any time need to go to Albury or anywhere else out of Victoria for any reasonable reason, I am confident that permission would be granted by Corrections Victoria officials, but they need to be asked.

46In addition to those mandatory conditions, I intend to impose the following additional conditions. 

47Firstly, I will order that you complete during the two-year period of the community correction order 200 hours of unpaid community work pursuant to s.48(c) of the Sentencing Act.

48Secondly, it will be a condition that you undergo treatment and rehabilitation, including testing, with regard to alcohol, pursuant to s.48(d)(3) of the Act.  I impose that condition because it would seem to me that a large portion of the reason for committing these offences was your consumption of alcohol on the day in question.

49Thirdly, you are to be supervised, monitored or managed during the two-year period of the order by a Community Corrections officer as directed.  In effect, that means that you will have to attend at the Community Corrections office here in Wodonga when directed for general supervision pursuant to s.48(e) of the Act.

50And finally, that you undertake any program addressing factors relating to your offending behaviour pursuant to s.48(d) as directed by Corrections Victoria.

51Before handing down any sentence, I need to know whether you consent to the imposition of a community correction order with those conditions as part of the combined sentence that I have outlined.  Ms Wilson, do you want a word with your client to discuss those matters with him?

52MS WILSON:  I may please.  May I also clarify, Your Honour, whether or not the programs would come off the community work hours?

53HIS HONOUR:  No they will not.

54MS WILSON:  As Your Honour please, may I approach?

55HIS HONOUR:  Do you need time – and I am not pushing you – I am happy to leave the Bench temporarily?

56MS WILSON:  I had a discussion in relation to the suggested conditions that were outlined in the assessment report prior to coming in with my client today, Your Honour, so I do not think I ‑ ‑ ‑

57HIS HONOUR:  Yes.  Perhaps I could just make one thing clear.  The sentence to which I have ordered that Mr McGrath be imprisoned is part and parcel of the combined sentence that I have outlined.  If the community correction order is not the subject of consent, I will rethink my sentence entirely.

58MS WILSON:  If Your Honour pleases.

59HIS HONOUR:  Yes.  I will leave the Bench for a moment and you can call me when you are ready.

60(Short adjournment.)

61HIS HONOUR:  Yes, Ms Wilson, what is the position?

62MS WILSON:  My client consents to the imposition of a community corrections order, Your Honour.

63HIS HONOUR:  Thank you.  That being the case, I shall order that you be sentenced in the manner that I have described.  Mr McGrath, there is a document that sets out the terms of the community correction order.  The s.464ZF sample is sought, Mr Triandos?

64MR TRIANDOS:  That is correct Your Honour, yes.

65HIS HONOUR:  What is the position there, Ms Wilson?  Is that something that you have discussed with your client?

66MS WILSON:  I believe it was indicated the other day that it was not opposed, Your Honour.

67HIS HONOUR:  It was not opposed?

68MS WILSON:  That is correct.

69HIS HONOUR:  Yes, thank you.  Well, I will make that order.  That is an order, Mr McGrath, that you undergo a forensic procedure for the taking of a small scraping from the inside of your mouth to obtain a sample, effectively, of your DNA for the database here.  I indicate that I am satisfied that the making of the order is satisfied on the basis of the seriousness of the circumstances of your offending, and on the basis that the order is not opposed. 

70Nevertheless, I should tell you that if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.  Thank you.  I will hand to you the community correction order, which sets out the various conditions – I will hand that to my associate.  It requires your signature, you might show that to Ms Wilson first, if you would.  Thanks Ms Wilson. 

71Thank you.  I will also order that Mr McGrath pay to Steven Anderson of 933 Chiltern-Rutherglen Road, Cornishtown, 3683 Victoria, compensation in the sum of $2,500.  That is a matter of consent - the amount that was discussed on, I think it was Tuesday, was it, being the likely cost of repair of fencing.  Thank you, give a copy of that to Ms Wilson, if you would.

72Now, Mr McGrath, in relation to the conditions of that community correction order, I should spell out to you – and I am sure it will be spelt out to you also by Ms Wilson, that any breach of those conditions constitutes a further offence in itself, and that offence is punishable by up to three months' imprisonment.  If there is some reason – and there are from time-to-time, I understand – if there is some reason why you cannot comply with one of those conditions for one reason or another, then what you should do is pick up the phone and call your case officer, or someone else at Corrections Victoria and explain the situation.

73The very worst thing you can do is simply not show, not bother to turn up.  That goes down as a breach, and depending on the attitude of Corrections Victoria, you may be charged with breaching the order, in which case you come before the court, and as I say, it is an offence in itself punishable by up to three months' imprisonment.  Not to be sneezed at.  But more important, if you breach the community corrections order, one of the alternatives that the court has is to resentence you for the original offences for which it was imposed, so you would be facing a resentence on the lighting the fire charge.  And I would not have thought that is in your interests. 

74The order with regard to the offence of intentionally lighting a bushfire is that you are convicted of that offence and sentenced to a term of imprisonment of six months.  You are further sentenced to a two-year community correction order commencing upon the date on which you are released from prison with the conditions that I have previously referred.

75Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to that charge, I would have sentenced you to a term of imprisonment of 18 months with a non-parole period of 12 months.

76With regard to the two summary offences to which you pleaded guilty, unlawful assault and a breach of a family violence intervention order, you are convicted of both of those offences, and on an aggregate basis you are sentenced to two months' imprisonment, which is to be served concurrently with the sentence which is imposed in relation to the lighting of the bushfire.

77Had you not pleaded guilty to those offences, I would have sentenced you on an aggregate basis to a term of three months' imprisonment cumulative upon the earlier period of imprisonment.

78I have dealt with s.464ZF forensic procedure order, and I have dealt with compensation.  Are there any other matters that need my attention?

79MR TRIANDOS:  No, Your Honour.

80HIS HONOUR:  Ms Wilson?  Thank you.  Mr McGrath can be taken from court, thank you.

81MR TRIANDOS:  As Your Honour pleases.

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