Director of Public Prosecutions v Meekings
[2020] VCC 32
•24 January 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 17-02034
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW JOHN MEEKINGS |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 21 October 2019 – 1 November 2019 | |
DATE OF SENTENCE: | 24 January 2020 | |
CASE MAY BE CITED AS: | DPP v Meekings | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 32 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty verdict at trial – one charge of committing arson for gain – house fire – offender sought to get out of financial difficulty by destroying his home then making an insurance claim – prior criminal record – combination sentence – low risk of reoffending – imprisonment a greater burden upon you because of health issues – general deterrence – no remorse – denial.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited:Cheung v The Queen [2001] 209 CLR 1, R v Eliasen (1991) 53 A Crim R 391
Sentence: 6 months imprisonment together with a community correction order for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Guesdon (trial) Ms S Pillai (plea) Mr M Thackaberry | Office of Public Prosecutions |
| (sentence) | ||
| For the Accused | Mr A Lavery | Richard Davis & Associates |
HIS HONOUR:
Introduction
Andrew John Meekings, you have been found guilty of one charge of committing arson for gain, contrary to s 197(3) and 197(6) of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment.
You have also admitted your Criminal Record.
Circumstances of the offending
In sentencing you, I am bound by the principles in the case of Cheung v The Queen.[1] As such, I must interpret the facts in a way that is consistent with the jury's verdict.
[1] [2001] 209 CLR 1.
At the time of this offending you and your wife Paula Green lived at 13 Charles Street, Koo Wee Rup together with your daughter, then aged 12. You and your wife had owned the house for about 15 years. Paula Green’s name was on the title. The house was a four bedroom weatherboard house.
At about 12.30pm on 24 September 2016 you, together with your wife and daughter, were seen driving away from the house in a car observed to be packed with personal belongings. You were heading to Ballan to stay with your mother for the night.
Before leaving you left the family pets outside and at the back of the house. You told a neighbour that you had left the pets out and asked them to put the pets back inside at night.
Approximately five minutes later the house was seen by neighbours to be on fire with black smoke billowing from it. A neighbour called ‘000’ at 12.37pm. The fire brigade and the police were quickly in attendance.
Whilst en route to Ballan, you were telephoned and advised of the fire by neighbours and relatives.
A short time later you returned to the burning house with your wife having dropped your daughter off at a friend’s house beforehand.
The prosecution case presented at trial was that you were in financial trouble for a number of years. This had escalated in 2015 and into 2016. You and your wife had fallen behind in the mortgage payments and had been threatened with foreclosure. Over the preceding years you had relied on relatives to assist in the paying of the mortgage and ultimately, you were advised to sell the house rather than have the bank do so.
On 10 May 2016, La Trobe Financial, which was your bank mortgagee of the house, obtained judgment against your wife for the arrears and for the possession of house.
You explored various options of trying to save the house from repossession including trying to buy your wife’s share of the property.
In August 2016 you quickly arranged for the sale of the house. You advised the conveyancing company that the house was fully insured.
On 19 August 2016 the house was sold for $338,000 with settlement due on 29 September 2016.
On 24 August 2016 you took out building and contents insurance for the house with RACV for $680,000 and $220,000 respectively. You did not tell RACV that there was already other current insurance on the house and did not mention that the house had been sold. The recording of your conversation with RACV was played to the jury.
The house had, however, been previously insured for $262,000 for the building alone. This was taken out by the mortgagee, La Trobe Financial, in 2014 in order to protect their interest.
On 8 September 2016 you requested a postponement of the settlement until 27 October 2016. This was not agreed to by the purchasers.
A forensic examination of the house was conducted by an expert in the investigation of fires who was called at the trial. It was found that the front door was open at the time of the fire. The fire occurred in the front hallway where a large un-upholstered couch had been ignited together with clothing, bedding and household appliances that had been stacked on the couch. The couch was against a wall in the hallway. The fire spread on to the wall and then to the ceiling, causing it to collapse over the front rooms. There was some incidental spread of the fire to other parts of the house. The main fire damage was limited to one end of the couch. There was no wiring in the vicinity of the couch.
The damage was not consistent with the presence of any significant quantity of flammable liquid such as petrol or turpentine; however the presence of ethanol – also a flammable liquid - was found in parts of the material that was unburnt.
The cause of the fire was the ignition of the large un-upholstered couch and the household items, bedding and clothing piled on the couch. The source of the ignition was not determined, however the expert gave evidence at the trial that of the various possibilities a match or cigarette lighter was the most likely.
In the days and weeks prior to the fire you had asked your wife to move personal items from the house to a garage which was not attached to the house. You had also asked her to move some of your personal possessions, including model planes, to the garage.
The prosecution alleged at trial that your wife packed the car and was at the car with your daughter waiting to leave when you lit the fire before joining them in the car and leaving the property.
On the same day as the fire, a few hours later, you called RACV and made a claim on your recently taken out insurance policy.
On 21 November 2016 you were interviewed by police. You denied any involvement in the fire. You said you did not know how it started. You suspected it may have been caused by an oil burning lantern that you had lit that day and left in the front room and which you could not remember extinguishing. This proposition was put to the expert at trial and argued as a possible cause of the fire. The jury clearly rejected this proposition.
You said in interview that you were on a disability support pension as was your wife. You admitted to some financial difficulty. You said that on the day of the fire you were going to your mother's with your wife and daughter. You admitted to leaving some animals outside of the house and to not locking the doors. You were adamant that you had left the house at about 11 am; however, neighbours that spoke with your wife just prior to leaving and others that saw your car in the street support the fact that you left the scene just prior to the observation of smoke and the calls to 000.
Nature and gravity of the offending
It is self evident that Parliament considers the offence of arson for gain as a serious offence which is reflected by the maximum penalty of 15 years imprisonment. It is essentially a criminal damage offence by fire with the additional element of dishonesty. However, the offence can embrace a wide range of conduct and the maximum penalty is one of a number of factors to take into consideration in assessing the gravity of the offending.
In my opinion the evidence in this case is able to be distilled into simple propositions that may be taken into account in relation to assessing the seriousness of your offending. First, it is not in dispute that you and your wife were in difficult financial circumstances due to a number of unfortunate events that I will detail below. Second, your financial circumstances in relation to the house and mortgage were in such a serious state that the financial institution who provided your loan obtained judgment against you and you were forced to sell. Third, five days after the sale of the house and before settlement you took out new insurance over the building and contents which you had not previously had. Fourth, you asked your wife to place items that had sentimental value in the back shed in the days leading up to the fire and fifth, you had packed the car to go away to visit your mother in the days leading up to settlement when you were to vacate the premises.
Thus in the circumstances, in my view the prosecution case was relatively strong and the clear conclusion is that you sought to get you and your family out of financial difficulty by destroying your house and claiming on the newly acquired RACV insurance. The sad part of the story, however, is that you ultimately lost your home as a result of your conduct and any equity in it. It was inevitable that once the investigation revealed the sequence of events outlined above, you would very quickly have been detected and I accept the submission put on your behalf that this plan reflected a desperate and illogical attempt to relieve yourself of the financial stress you were under.
In all the circumstances, in my view the offending is serious, however it is confined in the sense that the only persons that have suffered loss is you and your family. There has been no compensation claim and I was told on the plea that the bank sold the land and it has been redeveloped. Further, your conduct was not motivated by revenge or directed to a particular person but rather by a misguided attempt to get you and your family out of financial difficulty where it was inevitable that your house would ultimately have been sold by the bank, rendering you and your family homeless. That said, it is an unfortunate circumstance in the current economic climate that many people fall into debt and what is known as financial stress and, as will be discussed below, conduct such as yours is not the answer and must be deterred.
Personal circumstances
You are 54 years of age. You are married to Paula Green and you have a daughter currently aged 15.
You were born in the United Kingdom and came to Australia as a young child, settling in the Melton area. You completed year 10 and began work at age 15.
You have been employed in a variety of fields including as a labourer on farms and in construction. You have qualifications as a helicopter pilot, a ships master and have worked as a tugboat operator. Between 1983 and 2000 you were a CFA volunteer.
It was when working on a merchant ship as part of the construction of Victoria’s desalination plant that you were involved in an accident causing serious injury to your leg.
You were married in 2004 and your daughter was born in the same year. Your wife has suffered from a number of mental health issues for many years which has included periods of hospital admissions. Your wife is on a disability pension relating to her mental health.
Presently you live with your mother in Ballan while your wife and daughter live with your wife’s mother in Koo Wee Rup. As I understand the situation, your family relationship is strong, however current circumstances dictate that you are unable to obtain accommodation where you are able to remain living together.
A very relevant part of your more recent history relates to the many significant health issues you continue to suffer. Not only have they greatly affected your daily life, but in particular, your leg injury effectively ended your working life, ultimately leading to your difficult financial circumstances.
I received a number of letters from treating medical practitioners. Your general practitioner, Dr Min Kim, summarises your medical history and notes that you suffer from chronic pain, thrombosis, osteomyelitis, three vessel coronary artery disease and diabetes. As a result, you take numerous medications which are also summarised.
A letter from Dr Linda Danvers of Ballarat Health Services provides further background in relation to your general health issues and specifically in relation to your coronary heart disease. As noted, you suffer from triple vessel disease and in July 2019 two coronary arteries were stented.
A letter was tendered from Associate Professor Denis Spelman who is the head of Microbiology and the Deputy Director of Infectious Diseases at the Alfred Hospital. Associate Professor Spelman has treated you over a number of years and provides some detail in relation to your leg injury.
Your left leg injury stems from a work accident that occurred approximately 10 years ago where you fell down stairs sustaining multiple fractures. From that injury you developed an infection which has resulted in skin grafts, surgical debridement and plastic surgery. As at May 2019 when Associate Professor Spelman last reviewed you, you were wheelchair bound, which was also the case during the trial and plea. You are able to move from the chair to a bed or to the car, however you are otherwise restricted to the chair. You have deformity over your anterior thigh with open wounds that require daily dressing. There are major cavities in your thigh causing obvious deformity and you have lost sensation over your thigh.
Associate Professor Spelman also reports that you have more recently been reviewed by the Vascular and Orthopaedic Units at the Alfred and have discussed amputation of your leg which is something you have indicated you wish to occur.
I also received a letter from Dr Ferdosi Akter who is your wife’s general practitioner. Dr Akter summarises the mental health issues suffered by your wife including anxiety, depression, bipolar disorder and schizoaffective disorder.
Relevant sentencing considerations
In cases such as this, general deterrence is a paramount sentencing consideration. As noted above, while your conduct was motivated by the financial difficulties you faced which included losing your home, that circumstance is not uncommon and your decision to destroy the home by fire was serious criminal conduct. A message must be sent that the committing of arson for financial or other gain is to be discouraged. Just punishment and denunciation of your conduct are also relevant sentencing principles in this instance.
As you ran a trial, you are not entitled to any discount that you would otherwise receive if you had pleaded guilty. Further, you have expressed no remorse and have stated that you continue to deny any involvement in the offences.
In all the circumstances, in my view specific deterrence should be given little weight in the sentencing discretion. You have one prior appearance in the Magistrates Court in 2005 which did involve dishonesty offences and thus it is relevant; however, that offence occurred some time ago and resulted in an adjourned undertaking without conviction. I was also told that the offences involved forging prescriptions and related to an opioid dependency due to another work-related injury. Further, there has been no subsequent offending.
Your prospects of rehabilitation in my view are very good. For the reasons stated above, this offence was motivated by the financial stress on your family in circumstances where you and your wife were both suffering debilitating health issues. Apart from your physical health issues you are otherwise an intelligent man and you have supportive relationships with your wife, your daughter, your mother and your extended family.
Your physical afflictions are of relevance in the sentencing equation. You require regular medical attention in order to manage your leg injury and it seems most likely that your leg will need to be amputated in the future if the infection does not improve.
The principles in relation to ill health are well established. Physical health or disability may be relevant in two ways. First, where imprisonment will be a greater burden because of the offender's health, or secondly, where there is a serious risk of imprisonment having a grave effect on the offender's health[2].
[2]R v Eliasen (1991) 53 A Crim R 391at 396-97.
I received a letter from the Department of Justice and Community Safety outlining the health services offered within the prison system which I have taken into account. As noted in the letter, there are currently a number of prisoners in Victoria with conditions associated with aging, complex and chronic health conditions, which are able to be managed and treated.
While your health issues will require the engagement of a number of services and facilities which are available in the prison environment, it is clear that management of your health will be more onerous in custody than if you remained in the community. It is self-evident that the arranging of appointments and treatment in the community is easier to maintain than within the prison environment where you will be entirely dependent on others.
In all the circumstances, in my view I am satisfied that imprisonment will be a greater burden upon you because of your current state of health. However, the evidence does not disclose that there is a serious risk of imprisonment having a grave effect on your health. Thus in my view the second limb of the principle is not engaged.
The prosecution submitted that an immediate term of imprisonment is warranted. Further, while also taking into account that the matter falls within s 44(1A) of the Sentencing Act 1991, the prosecution submit that a combination sentence in the circumstances is within range.
I had you assessed for a community correction order and you have been assessed as a suitable candidate. You have also been assessed as being a low risk of reoffending.
In my view in all the circumstances a term of imprisonment must be imposed given the seriousness of the offence. However, in my opinion the applicable sentencing considerations are able to be met by the imposition of a combination sentence pursuant to s 44 of the Sentencing Act 1991. A community correction order following a period in custody will also be a punitive order with an unpaid community work condition. In all the circumstances I accept the opinion of the corrections officer that your medical treatment needs are able to be managed with the support of your family and you do not have any other causally related mental or physical health issues that need to be addressed. As such, apart from the core conditions of the order, the only special condition will be unpaid community work.
Sentence
Mr Meekings, you can remain seated.
Andrew John Meekings, on Charge 1, arson for gain, you will be convicted and sentenced to six months imprisonment which will be the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.
In addition to the prison component of the sentence, upon your release you will be placed on a community correction order with conviction for a period of three years. You will be required to complete 250 hours of community work over the period of the order.
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