Director of Public Prosecutions v Parker
[2022] VCC 1931
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01050
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Adam Parker |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 27 October 2022 | |
DATE OF SENTENCE: | 8 November 2022 | |
CASE MAY BE CITED AS: | DPP v Parker | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1931 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — arson — conduct endangering life — reckless conduct endanger life — assault — common assault — common law assault — jury verdict — plea of guilty — victim impact statement — moral culpability — criminal record — substance abuse — drug abuse — cannabis — amphetamine — residential rehabilitation program — general deterrence — denunciation — community protection — specific deterrence — prospects of rehabilitation — lack of remorse — imprisonment
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Akoka v The Queen [2017] VSCA 214
Sentence: Total effective sentence of seven years with non-parole period of five years
Section 6AAA declaration: nine months’ imprisonment on charge 5
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr H Lewis | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Barton | Sarah Pratt & Associates |
HER HONOUR:
1Adam Parker, on 7 July 2022, you were found guilty by jury verdict of the following offences:
(i)arson;
(ii)conduct endangering life; and
(iii)common assault.
2You pleaded guilty to a further charge of common assault, although there remains a factual dispute about your conduct in respect of this charge, which I will discuss more fully later in these reasons.
3The maximum penalty for arson is 15 years’ imprisonment, the maximum penalty for reckless conduct endangering life is 10 years’ imprisonment, and the maximum penalty for common assault is five years’ imprisonment.
4I find in accordance with the jury’s verdicts and, in respect of charge 5, my own assessment of the evidence, that the circumstances of your offending were as follows.
5On 31 December 2020, you were a guest at a wedding which was also attended by your friend Angela Baker and by Samuel Gordon and Tina White. Mr Gordon and Ms White were a couple and you did not know them prior to the wedding. After the wedding reception, you and Mr Gordon and Ms White went to Ms Baker’s home to continue celebrating the New Year.
6You drank alcohol over the course of the evening and arguments broke out between you and the others. This resulted in you assaulting both Mr Gordon and Ms Baker.
7You accused Mr Gordon of stealing your alcohol. You punched Mr Gordon in the face a number of times (charge 5). The prosecution alleges this occurred on two distinct occasions during the night. You do not dispute that you assaulted Mr Gordon by punching him multiple times, but you say it only occurred once. There are discrepancies between the evidence of Ms Baker and Mr Gordon on the timing of your assaults upon Mr Gordon. It is Mr Gordon’s evidence that you punched him several times to the face but in a single episode. This accords with your plea of guilty and I therefore intend to sentence you on this basis.
8You assaulted Ms Baker by striking her to the face when she tried to intervene to stop you assaulting Mr Gordon (charge 4). Your assault upon Ms Baker caused her minor injuries. After being assaulted by you, Ms Baker demanded that you leave her property. You refused, claiming to be unable to locate your mobile phone. Ms Baker threatened to call the police. You then accused Ms Baker of going to ‘dog’ on you.
9Ms Baker and Mr Gordon both gave evidence that they heard you make threats to burn Ms Baker’s house down. Ms Baker then took Mr Gordon outside and put him in a caravan which was parked in the driveway a short distance from the house. She then went to a friend’s home and called the Triple Zero service.
10Ms White left the house and joined Mr Gordon in the caravan. While in the caravan, both Mr Gordon and Ms White observed smoke and flames to be coming out of the property and, upon observing this, they left the property and returned to their hotel.
11The fire was extinguished by the CFA, who located a deceased dog in the rear bedroom of the property. The property was destroyed.
12You were arrested at around 5:50am on 1 January 2021. You gave a ‘no comment’ record of interview.
13Forensic officers from the Arson and Explosive Unit attended the property on 1 January 2021 and determined that:
(i)the first ignition point was in the main hallway of the property;
(ii)the second ignition point was in the main bedroom of the property;
(iii)no accelerants were used to light the fire; and
(iv)the fire was deliberately lit.
14A statement was tendered at your plea from Maree Millard from Housing Services for the Wimmera South-West area. The cost to repair the property is $108,000. This is a significant amount of public money out of the budget of a service that provides public housing to low-income and disadvantaged people.
15Tendered on the plea as an exhibit was a victim impact statement by Angela Baker. Ms Baker says she, her brother and her two children lost personal items in the fire. It was her brother’s dog which was killed by the smoke. She says she is devastated by the loss of her home and most of her possessions, and that she struggles to be able to afford to buy new household goods, furniture, and clothing on her Newstart allowance.
16Ms Baker says her new house does not feel like her home and she describes feeling unsettled. Ms Baker says that on the night, she was terrified that her brother was in the house. Ms Baker says that you were her friend and that she has helped you in the past when you were struggling. She says she is angry with you and cannot forgive you.
17Arson is a very serious offence. Lighting a fire is inherently dangerous. Once a fire is lit, its course is unpredictable, and terrible, even tragic outcomes often ensue. Here it is fortunate that no-one was killed, although, of course, you have also been convicted of endangering the lives of both Mr Gordon and Ms White, who were in the caravan only metres from the house, and for which you will be sentenced separately and which, in my view, calls for a significant degree of cumulation upon the charge of arson, given that it involves two further victims whose lives were put at risk.
18Ms Baker was your friend and your host on the evening in question, and it is a shocking breach of trust on your part to have destroyed her home. I treat the death of the pet dog as an aggravating circumstance of your offending. You may not have realised the dog was in the house, but this is precisely the kind of unforeseen consequence which flows from behaviour so thoughtless and so dangerous.
19I can find no explanation for your offending other than that you were intoxicated and behaved in a wholly disproportionate and irrational way to what you perceived were provocations and slights from Ms Baker and the others during the course of the evening, and which culminated in you taking retribution against Ms Baker for threatening to contact the police.
20This is an objectively serious example of the offences of arson and reckless conduct endangering life, and your moral culpability is high.
21I turn now to your personal circumstances. You were born in January 1979 and you are presently 43 years old. You were born in Warrnambool. You come from a stable family. You are one of a siblingship of four. You have the continued support of your parents, who wrote a character reference for you, as did your eldest sister Michelle. You are unmarried and have no children.
22You were not academic and your last completed year of schooling was year 9. You have had various labouring, cleaning and retail positions since you left school but your employment has been consistently interrupted by stints in custody.
23You have a criminal record for offences including unlawful assault, driving matters, possession of weapons, burglary, theft and other deception matters, drug possession and trafficking, and criminal damage. Most of the time, you were dealt with in the Magistrates’ Court. Your only previous appearances in this Court were in relation to appeals from the Magistrates’ Court.
24Since 2011, you have been sentenced to terms of imprisonment comprising periods of actual custody on a regular basis. In his written submissions, your counsel, Mr Barton, sets out what have been your limited periods of freedom from 2011. All in all, you have only been out of gaol and in the community for around four and a half years out of the past 11 years.
25Your criminal history is related to your substance abuse. You told Laura Fleming, forensic psychologist, who prepared a psychological report which was tendered at your plea, that you have used and abused various substances since the age of 15, including cannabis and amphetamine.
26You were bailed in respect of this offending to a residential rehabilitation program at The Cottage in Shepparton. You completed the program successfully and you have been drug free since this time. A report on your progress at The Cottage dated 21 December 2021 from Aaron Gilhooley, the operations manager, says you were committed to your recovery.
27A reference was also tendered from Robert Bryant, who says his company employed you as a forklift driver as a part of a team of workers from The Cottage. Mr Bryant says he was impressed with your work ethic and your trustworthiness. He says he found you to be a leader in the recovery community and in the workplace.
28I have also received a reference from Ronnie Scott and Diane Jeans, the managers of a company that has employed you for the past 12 months. They say you have been honest with them about your drug problem and the criminal charges you face. They say you have a good work ethic and have leadership qualities.
29The sentencing principles of general deterrence, denunciation and community protection are all engaged in sentencing you. The Court must send a clear message that conduct as wanton, dangerous and destructive as yours must be punished. You must also understand the consequences of your actions and specific deterrence is also a relevant sentencing consideration.
30You progressed well in addressing your substance abuse at The Cottage when you were on bail for these offences. It is regrettable that you were not able to do so earlier. You now, inevitably, face a lengthy period of imprisonment. However, taking into account your efforts at The Cottage, I am able to conclude that your prospects of rehabilitation are reasonable. Without this material, I would not have come to that conclusion, given your criminal record and your lack of remorse. You still maintain you were not the person who lit the fire.
31Your time at The Cottage, in addition to its relevance to my consideration of your prospects of rehabilitation, is also relevant because it was time spent in a residential drug treatment facility and therefore can be taken into account as a mitigating circumstance akin to pre-sentence detention, as was recognised by the Court of Appeal in the case of Akoka v The Queen.[1] I will therefore give some mitigatory effect to the time you spent in a residential rehabilitation facility, although it does not count formally as pre-sentence detention.
[1] [2017] VSCA 214.
32Taking into account all the matters I am required to under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows.
33You are convicted on all charges.
34On charge 1, arson, you are sentenced to a term of imprisonment of five years.
35On charge 2, reckless conduct endangering life, you are sentenced to a term of imprisonment of four years.
36On charge 4, common assault, you are sentenced to a term of imprisonment of nine months.
37On charge 5, common assault, you are sentenced to a term of imprisonment of six months.
38Charge 1 is the base sentence and I order two years of the sentence on charge 2 to be served cumulatively upon it.
39That makes a total effective sentence of seven years. I am directing that you must serve a period of five years before you are eligible for parole.
40Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty to charge 5, you would have been sentenced to a period of nine months’ imprisonment on that charge.
41Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 380 days of the sentence I have passed upon you, and I direct that this be entered into the records of the Court.
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