Director of Public Prosecutions v O'Dea

[2021] VCC 1337

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

AT MELBOURNE

CRIMINAL DIVISION

CR-21-00726

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY O'DEA

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 September 2021
CASE MAY BE CITED AS:	DPP v O'Dea
MEDIUM NEUTRAL CITATION:	[2021] VCC 1337

REASONS FOR SENTENCE

---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr A. Patton	Haines & Polites

HIS HONOUR:

1

Anthony Taka O'Dea, you have pleaded guilty to one charge of criminal damage by fire, being arson, on indictment ending 432.  You have also pleaded guilty to one charge of recklessly causing injury and one charge of intentionally damaging property on indictment ending 902.  There are also three uplifted summary matters, one of committing an indictable offence whilst on bail and two of breach an intervention order.  I will simply say at this point that the intervention order within your mind, only had a day to expire and in so far as the arson being an offence committed whilst on bail, I think double punishment means that there should no accumulation for either of those and, accordingly, on each of the uplifted matters, there will be a sentence of one month imprisonment on each all to be served concurrently and with the sentence imposed upon the arson.  Those

crimes - the arson, the reckless injury and the property - have maximum penalties of 15 years for the arson and five years for each of reckless injury and intentional damage. 

2You are now 44 years of aged.  You pleaded guilty at the earliest reasonable opportunity and I accept that.  In so far as remorse is concerned, I am well aware of the various Court of Appeal decisions on that and I accept that your plea of guilty has to be regarded by me as an indication of remorse and whilst I have had some queries about all that, you will certainly get the benefit of the doubt.  The utilitarian benefit of that plea of guilty is, in this day and age with the COVID problems, a very significant one.  It is a situation where there are attempts to relieve the pressure on an otherwise overburdened legal system and bearing in mind the decision of Worboyes, I do take that into account.  Also, you have now done some 639 days on remand.  I accept that a large portion of that has been done under COVID regulation. 

3Whilst you perhaps have not been in the worst of the prisons for that to occur, I am well aware that that involves a loss of very significant periods of time for contact visits.  There are quite often lockdowns.  I do not know whether you have been taken out to court or whether you have been put in quarantines.  I am aware that the ability to do programs is significantly reduced, even though apparently you have done one or two, and you also have the fear of contagion.  They are all matters that are taken into account in the passing of this sentence. 

4You do have a very significant criminal history and I am not going to labour it.  You have prior convictions for violence, for property damage, threats to kill and, obviously, under situations of stress or perceived stress, you act out in a violent and destructive way.  Those matters speak for themselves and you have been incarcerated, as I understand it, on a number of occasions in the past. 

5The summary of the prosecution opening is that you were 43 years of age at the time of the offending.  The victim had been your intimate partner for some time and you in fact had approximately 11 years in fact and you had three children together.  They are all aged between four and eight.  At the time of this offending they had been taken by DHHS, as they were then, and were residing in full-time foster care.  It is quite clear from the material that I have read and from your presentation that you have, be it valid or not, a significant degree of grievance against DHHS for their conduct over the years and I simply take that into account in the overall set of circumstances as to how perhaps this all came about. 

6On 1 February 2019, an intervention order was taken out against you, affectively on behalf of your former partner and the children.  I note that there have clearly been intervention orders in the past and we do not have to go down that line.  It is a relationship that has been going for 11 years but has clearly been punctuated by violence.  There are threats to damaging of property and I suspect mental health issues on both sides of the equation.  But be it that as it may, the intervention order said you were not to commit property damage or threaten to commit property damage and, as I already indicated, that intervention order expired,  as on my calculation, within two or three days of this offending occurring. 

7On 6 December at approximately 11 pm, you and your victim attended the Dorset Gardens Hotel in Croydon and were drinking.  You left the premises at approximately 1 am.  The victim was driving her vehicle and, as you left the hotel, there was some dispute as to what took place, but in any event, I am not going to buy into the nitty gritty of all of that.  The ultimate result was an argument between you and the victim and you began to become aggressive.  You apparently had an iron bar which you then used to break the reverse camera on the back of the vehicle and you then, later in the incident, punched the victim in the face and the opening says inadvertently causing her glasses to break, so I do not know if it becomes intentional property damage.  But in any event, it is the breaking of the camera and the breaking of the glasses that give rise to Charge 2 on that indictment of intentionally damaging property. 

8There was then some argy-bargy apparently over the tyre lever and at one point the victim got out of the vehicle and then she went running back to it to try and sit in the driver's seat.  You apparently, as I am told, grabbed her by her left wrist and forearm.  You twisted, whether it was hard as you could I do not know, but apparently there was a crack and I accept beyond reasonable doubt that there was a crack and the victim felt extreme pain at that point in time.  The way in which it was actually broken is up to some debate as your counsel very properly pointed out, but the fact of the matter is, whether it was by a blow or by a twisting motion, it was the result of violence from you of sufficient degree to cause such a fracture.  There was another aspect of the injury I will come to in a moment. 

9I note it was pointed the facture was undisplaced and I have certainly seen far worse fractures than that in my on the Bench but the fact of the matter is, that it is done in a situation of family violence.  It is done by a strong male to a woman and has to call for aspects of denunciation.  In any event, you got into the driver's seat.  Later, as you were driving the car, you turned around and punched her to the mouth region and that is all part of the charge of causing injury recklessly. 

10You then crashed the car.  Police attended the scene and both you and the victim nominated her as the driver of the vehicle.  It was towed from the scene and some time on 8 December, she attended at the Croydon Police Station and made a statement and said that you had been living at her address in Croydon South for an undisclosed period of time.  No suggestion before me that that was not by way of some sort of agreement and, as I have already indicated, that is just going to be concurrent, that being that breach.  She went to the Maroondah Hospital for medical treatment after the complaint.  She was then put into emergency housing and she, again, on 10 December - I am not sure if these dates are correct - attended the Croydon Police Station and said that she in fact was not the driver and that you were and police amended the intervention order that was in place but I accept that you had no knowledge of that amendment. 

11

You were arrested in regard to the allegations of assault and damage and you denied the offending and you were charged and released on bail.  On

10 December at 8.54 pm and at 8.56 pm, there were missed phone calls from a number on the victim's mobile phone.  A voice message was left which she believed was you saying, 'You lied to the police to get me charged once again.  Now I'm going to give you a real reason to actually get me charged.  You better be come home.'  She, as I stated reported it to the police.  At 11.21 pm there was another missed message and then at 11.22 received a voice message which was sent as a text message stated, 'Because you won't tell me who raped you, Susan, I'm going to burn everything in the house.'  She believed that to have been sent by you and contacted police.  That number that had left the message was a payphone located around about 600 metres from the house that was ultimately burnt. 

12She told police about the threats to burn the house and then at around about some time between 11.22 and 11.42, you attended at the house and entered the house.  Once inside - I do not know whether that is once inside or not - but it appears you used a cordless drill to remove the lock from the back door of the house.  You obtained a full plastic jerrycan of petrol and a bottle of transmission fluid and spread the accelerants through the house.  The Crown opening says the couches and chairs were moved, that the reason that that was done, if it was done, I am not going to sentence you on the basis of.  Your counsel has pointed out to me that there were already materials in that area and I am not going to aggravate the situation by taking that into account.  In any event, police knocked on the door.  They smelt petrol and noticed a light.  The next thing that occurred was that the accelerant had been spread through the house and you obviously lit it. 

13It became engulfed in flames.  The windows started to break from the fire and the fire quickly engulfed the house.  You exited from the side gate carrying two black document folders.  There is a dispute about who owned those but it does not affect my sentencing remarks.  The police, upon seeing you come out, gave you verbal directions to drop what you were carrying and to lie on the ground.  The fire brigade were called, the ambulance was called.  You were assessed by the ambulance members for smoke inhalation but declined treatment and you were then arrested and conveyed to the Ringwood Police Station. 

14An arson chemist attended the premises and photographed the house.  Samples were obtained.  The fire was caused by, on his opinion, available combustible materials in the house and a significant volume of petrol that appeared to have been poured selectively over furnishings in at least five rooms of the house.  I draw the inference from that that it was not a simple matter.  You clearly intended the fire to be of real significance and that is indeed what you have pleaded guilty to.  There was no estimate of the damage to the house before me.  The house was so damaged it needed to be replaced.  Again, there is no estimates of costs involved that have been put before me and I just work on a basic assumption as to it would have been a significant amount of money.  When interviewed about that, you quite properly exercised your rights and simply stated no comment. 

15The injuries to the victim were mild bruises lower lip, a bruise on her gum, abrasion on the thumb and, as I have indicated, an undisplaced left ulna styloid fracture, which is the bone in the wrist just down near the little finger.  That was put in plaster.  I accept that it did cause pain at the time and I accept that it still caused pain for a few months.  She apparently, after by about March, was doing pretty well, apart from having the occasional niggle if heavy lifting or trying to turn. 

16And that, essentially, sums up the matters.  I do not need to go through the chronological history of it all.  I accept that the plea was negotiated and was made, or certainly offered, at a reasonably early time and I have already indicated the aspects of remorse and the utilitarian benefit of it.  There is no Victim Impact Statement before me and I draw no adverse conclusions to you about that nor do I draw any adverse conclusions about the victim, because she in fact has not done so. 

17I had very helpful submission tendered on your behalf from your counsel and also had helpful submissions tendered on behalf the Crown which were exhibited and which I do not need to go through in great detail in this particular situation.  I also have a report, which I have read a couple of times, from Ms Ferrari, the psychologist, which takes me through your background and as outlined adequately, I think, in your counsel's outline of police submissions. 

18In simple terms, it had been a relationship fraught with difficulties over an extended period of time.  There were three children of it.  I accept that DHHS had become involved and that was a source of enormous frustration to you.  Your instructions were that this was an act against DHHS.  As the Crown say, it would tend to suggest it was an action against the victim.  In the end, I do not think I need to decide that.  The arson includes both the house and the personal possessions and it seems to me, in terms of moral culpability, I actually do not think there is any difference. 

19You had a traumatic childhood, I accept that.  You were the victim of physical and emotional abuse.  Your siblings take the view that your father, who looked after you after your mother was essentially, from what I can gather, thrown out by your father, was excessive.  It was clearly excessive discipline of you, if I can describe it in that sense.  You went to live with your mother and you had ongoing conflict between you two.  You moved out, you were homeless, spent most of your teenage years staying with friends and extended family.  You have done a number of TAFE certificates.  To your credit, you have a pretty good work history in terms of at least semi-skilled and unskilled roles.  Since the children have been taken, you have been getting a disability support pension.  I do not need, as I say, to go into any detail about the nature of the relationship.  It appears the alcohol has been a problem throughout all that and drug use as well. 

20It seemed pretty clear on the night of the reckless injury that you had both been drinking.  I accept that you probably were intoxicated.  As I have already indicated, I am not going to buy into where the tyre or everything else came from.  What has occurred is whatever happened.  It seems pretty clear that you have done your block and assaulted her in the way described. 

21The report of Ms Ferrari, as I indicated, is amply summarised in your counsel's submissions.  You suffer from a major depressive disorder and a generalised anxiety disorder, both coming from your upbringing and exacerbated by the removal of the children.  Ms Ferrari opines that it is not directly connected to the offending.  It demonstrates difficulties in regulating and controlling emotion and behaviour which, understandably, is amplified when you have been drinking and using drugs.  It is not put that this operates in this particular situation.  I accept what is put to me.  That is just the background in which all this has occurred and the difficulties that you have had since you were a small child.  You became homeless, you ended up in Turana and you have obviously, as already indicate I think, had a number of gaol sentences.  On the one basis I get the impression that you could look after yourself in gaol, but on the other basis a person with the personality difficulties, if I can use a neutral word, that you have would cause interpersonal conflicts with other prisoners and I try to take it into account. 

22I have already indicted that I am taking into account the COVID circumstances.  I accept what is in your counsel's submissions, just on general understanding and experience as to what has been occurring over the last year or two.  There has been some delay, I am not attributing blame for that.  You apparently, for a significant period of time, determined to, for reasons you had not decided, represent yourself.  The fact of the matter is that there now has been a significant period of delay and you have been on remand now for some 28 months. 

23It is not disputed that the sentence that has to be imposed has to be a custodial with a non-parole period.  I am aware of double punishment and I will be moderating the sentence as to reflect the matters that have been put on your behalf.  General deterrence has to play a part, obviously, in situations such as this.  I am always concerned about personal specific deterrence in these types of situations.  Gaol has never done much in the past and if you have the conflicting personality that seems to be becoming apparent through the materials and through what you said to me before, I have real concerns about the risk of reoffending, particularly if you use drugs.  The report says moderate to high and I think that is probably pretty right.  The prospects of your rehabilitation are really up to you.  I think it is going to be a matter of a deal, if it can be described that way, between you and the Parole Board as to what takes place when your minimum term expires and it is something which I do not think I should be buying into. 

24

I have clearly taken into account the matters put on your behalf.  I have taken into account the matters that have been put by the Crown.  I also, obviously, have taken into account all the matters which are contained within that report of

Ms Ferrari's and all I can do is apply my instinctive synthesis to what the appropriate sentence is.  As I have indicated during the course of the plea, I am well aware, from having known a number of arsons over the last few years, as to what the median sentence for a house arson is.  This was a detached dwelling, not a situation where it was attached to other buildings where there was a risk of fire going on the whole street, which I have had once or twice, but at the same time, the arson itself, whilst the property damage has been - the bulk has been sustained by DHHS, you have destroyed personal property belonging to your partner.  She has become, in effect, without secure accommodation since all this occurred and they are matters which obviously I have to take into account. 

25I do not think there are any other materials that I need to refer to specifically and, accordingly I sentence you:

·On the charge of arson, a sentence of imprisonment of a period of three years.

·On the charge of intentionally injury, six months.

·On the charge of damage on that indictment, two months to be served concurrently with the sentence imposed on the arson.

·Three months of the sentence imposed on the injury charged will be served cumulatively upon the arson which gives an total affective head sentence of three years and three months. 

26In these circumstances, I direct that you serve a minimum term of 28 months before becoming eligible for parole.  Whether you get that parole or not is not a matter for me.  It is a matter for you and the Parole Board. 

27I direct that 639 days be reckoned as having been served under this sentence. 

28

Just to indicate the value of a plea in these times of COVID, I say to you that, but for your plea of guilty, you would have been sentenced to be in prison for a period of four years and eight months with a minimum term of three years and six months.  So the affective sentence is three years and three months with a minimum term

of 28.

29No other orders I need to make?

30MR PATTON:  The disposal order I think Your Honour's already done.

31HIS HONOUR:  Disposal order's been made.

32MR PATTON:  In reading through the sentences, Your Honour referred to a charge of intentionally cause injury.  I take it that was a slip - - -

33HIS HONOUR:  A slip of the tongue.  Yes, I meant recklessly cause injury, sorry. 

34MR PATTON:  Thank you, Your Honour.  As I see, he was otherwise imposed one month each for the summary matters wholly concurrent.

35HIS HONOUR:  They're all concurrent.  Yes, just for completeness. 

36MR PATTON:  Yes.

37

HIS HONOUR:  All right?  All right, as I understand it, Mr O'Dea, we'll have to shut this all down but your counsel's going to give you a ring.  That's correct,

Mr Patton?

38MR PATTON:  It is, thank you, Your Honour.

39HIS HONOUR:  All right, thank you for that.  Thank you, Ms Paganis. 

40MS PAGANIS:  As Your Honour pleases, thank you. 

- - -