Director of Public Prosecutions v Oakley, Jason Henry
[2013] VCC 720
•27 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON HENRY OAKLEY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 May 2013 | |
CASE MAY BE CITED AS: | DPP v Oakley, Jason Henry | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 720 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. J. Doyle | Office of Public Prosecutions |
| For the Accused | Mr R. J. Thyssen |
HIS HONOUR:
1 You can stay seated, Mr Oakley, there is no need to stand up.
2 Jason Henry Oakley, you have pleaded guilty to one count of arson and one count of attempting to obtain property by deception. The maximum penalty for each of those crimes is 10 years' imprisonment.
3 You are 41 years of age. You pleaded guilty to a settled indictment, and according to a psychologist, have displayed remorse. You must also get the utilitarian benefit of that plea of guilty. This would have been a circumstantial trial of arson, and it is certainly the experience of the courts that they become unwieldy and take up an extensive period of time, with the calling of many witnesses. As I have said, you must get a significant recognition of that.
4 Also, you have no prior convictions or findings of guilt, though I am told, properly, that you have one subsequent matter involving a without conviction disposition for theft.
5 The summary of the prosecution opening I will annex to these, my sentencing remarks, but can refer to it in very simple terms.
6 You came to Australia from England in 1998. In 1999 you and your partner, Lisa Tomlinson bought a property in Jeeralang for $132,500. It was subject to a mortgage. The circumstantial case involved the house having white ants and being over-insured. In simple terms, some time in early 2001, the Crown case was that you approached a Mr Ashton and took him to the property, where he was asked to destroy it by fire. You told him, on the Crown case, to make it look like the result of an electrical fault. He apparently for that was to receive a safety vest or jacket for his troubles. You and Ms Tomlinson went overseas.
7 Meanwhile, a Ms Griffiths who had been initially contacted by you, had been told by a clairvoyant that she had been consulting that a friend of hers would be charged with fraud. Mr Ashton had been informed of this advice and accordingly decided against burning down the house. When you returned it was still there. In October of 2001 it burnt, as I understand it, very considerably.
8 Then fact was that you made an insurance claim. Some moneys were paid to you in the order of about $18,000, I think, and the balance was refused. Experts were called in by the insurance company to make their own investigations. From what I can gather, police had little interest in it. It was determined that the fire had started near a heater, but had not been caused by the heater. There are number of circumstantial factors involving insurances and the like, I do not think I need to go into that here. It is not disputed that the arson was premeditated.
9 You, on being refused, instigated Supreme Court proceedings. As I understand it, because of the investigations which those proceedings either followed or may have even instigated, the civil matter went disastrously for you. It ended up with you owing something in the order of a half a million dollars and being bankrupted.
10 The situation is that arson is very frequently a serious crime and frequently involves an active custodial sentence. Obviously it calls for the application of general and specific deterrence in the normal course of events, as well as denunciation and appropriate punishment.
11 I think in this situation the attempted obtaining property by deception is part and parcel of the arson, and accordingly there should be significant concurrency, but on any basis a custodial sentence of some sort is inevitable. That was not demurred from by your counsel who argued that I should wholly suspend it.
12 I then look to matters personal to you. In the end, as I have indicated, I have decided that wholly suspended is the appropriate disposition, essentially because you are the author of your own destruction, and because of the delay which I will refer to in a moment.
13 You were bankrupted, as I said, in around 2007, and as I read this so would have been your partner. Your history was contained firstly in a report from Mr David Ball, psychologist, as well as matters that were put to me from the Bar table. There were also a number of references tendered on your behalf.
14 I deal firstly with those references. They clearly indicate that you are in the normal course of events a very law-abiding and worthwhile member of the community. Each of those including work references, a reference from a neighbour, and references from people you have had other business dealings with, describe you as a person of integrity who endeavours to assist others. I have no doubt that normally that is the case.
15 The report from Mr Ball does not come up with any psychological disorder, and I just quote from it in brief, and it is a very open and very, very helpful report, if I may say so. He said that your mental status examination was largely unremarkable.
"But overall Mr Oakley impressed me as a person of generally good judgment, however he expressed little insight into his offending and general psychological functioning. He possesses clear consequential thinking and is well capable of planning and executing positive and self-sustaining behaviour. However, he presents as resentful, socially withdrawn and generally irritable."
16 That goes to your favour insofar as rehabilitation is concerned. He said in looking at your overall circumstances:
"Mr Oakley's rehabilitation and management in the community presents with very few challenges. He derives from a stable, supportive and caring family of origin, and while living a generally withdrawn and socially isolated lifestyle, he maintains a close and supportive relationship with his wife, who reported a consistent employment history, and I could find no record of prior offences. He presented as maintaining a non-offending lifestyle, living in his own home with his wife."
17 That puts the situation very much in summary. You have a good work record, and you have current employment. There is the stability of a home, which albeit is subject to caveats, which I understand is a small property with horses on it, and one of the references refers directly to that. You are in a stable relationship of long standing, and as indicated by Mr Ball, you should rehabilitate. In that situation I can see no valid purpose or reason from the community's point of view for you to serve an active custodial sentence.
18 In that regard, I refer to the judgment of Nettle JA in the matter of Malakovski , who said:
"Although it is possible for a sentence of imprisonment imposed which is not otherwise exceptionable to be rendered manifestly inadequate by an order wholly to suspend it, such cases are likely to be rare, and I am not persuaded that this is such a case." Here there was a long delay between the time of the offending and the date of sentence. It was that delay and its consequences which the judge considered to warrant the suspension of the sentence. As Her Honour said, if she had been sentencing the respondent at the time of sentencing Goshi and Gray, she would probably have probably have sentenced him to an immediate term of imprisonment."
19 I interpolate that that is the situation here too.
"But the delay, although in part the fault of the respondent resulted in a positive improvement in his situation, a demonstration of rehabilitation and an increase in the stability of his life and self-discipline. Her Honour took the view that those considerations and others which emerged during the period of delay operated in mitigation of sentence and in favour of a suspended sentence. With respect I see no error in that part of Her Honour's reasoning."
20 I think that particular quote is most appropriate in this situation where the offending is now albeit to a large extent because of your efforts now approaching 13 years of age, you would undoubtedly as I see it never have been charged had you not endeavoured to institute civil proceedings.
21 In any event, taking all those matters into account, on the charge of arson you are sentenced to be imprisoned for a period of 18 months. On the charge of attempted deception, 12 months.
22 I direct that six months of the sentence imposed upon Charge 2 be served cumulatively upon the sentence imposed upon Count 1, which gives an effective sentence of two years' imprisonment.
23 I direct that that sentence be wholly suspended for a period of three years for the reasons that I have outlined, and because I consider it to be in the interests of justice.
24 Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of three years with a minimum term of one.
25 Any other orders out of all that?
26 MR DOYLE: No, Your Honour.
27 HIS HONOUR: Thank you, gentlemen. Stand for a second, Mr Oakley. What I have done is, for the reasons given and because of the age of the matter and all the matters that your barrister has put on your behalf, I have given you a two-year gaol sentence and it is wholly suspended for three years.
28 That means that if in the next three years you commit any offence punishable by imprisonment, and that includes shoplifting, anything like that, then you breach it and you get brought back to be resentenced. All right? Now, you are not going to get resentenced for something like a driving offence or something like that. But I'll tell you straight. Anything involving a box of matches and you'll be going in. All right? Yes, all right.
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