Director of Public Prosecutions v Patterson
[2016] VCC 1129
•4 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00549
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAY PATTERSON |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2016 | |
DATE OF SENTENCE: | 4 August 2016 | |
CASE MAY BE CITED AS: | DPP v Patterson | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1129 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M. Mahady | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Doogue O'Brien George |
HER HONOUR:
1 Jay Patterson, you have pleaded guilty on Indictment F13343043 to three charges of criminal damage and two charges of criminal damage by fire (arson). You have also agreed to me hearing pursuant to s145 Criminal Procedure Act and have pleaded guilty to a summary charge of committing an indictable offence whilst on bail.
2 The maximum penalty for criminal damage is 10 years' imprisonment and the maximum penalty for arson is 15 years' imprisonment. The maximum penalty for the summary offence is 30 penalty units or three months' imprisonment.
3
Each of the six charges relate to the offending on the same date, that is,
25 September 2015.
4
It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with the prosecution summary (Exhibit A).
I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
5 I turn to a brief summary of your offending.
6 On 25 September 2015, at approximately 12.50 am, you walked to the Cycle House in Para Road, Greensborough. At the time, you were in possession of a hammer, which you used to smash the glass pane on the entrance door to the store. The damage to that glass pane was approximately $790 (Charge 1).
7 You then crossed Para Road and approached a Holden Rodeo motor vehicle parked opposite the Cycle House store. You used the hammer in your possession to smash the glass on both passenger doors, both front headlights and the front windscreen. The total damage to that vehicle was approximately $2000 (Charge 5).
8 You then walked to the Yesteryear Furniture and Collectibles Store on Para Road Greensborough, two doors down from the Cycle House shop. Again, you used the hammer in your possession to smash the glass pane on the entrance door of the store. The cost of that glass replacement was about $3000 (Charge 2).
9 There was CCTV footage from a mechanical repair shop located near Yesteryear Furniture which showed you walking past and hitting a wall of that shop with the hammer still in your possession. You were observed further along Para Road, still in possession of the hammer.
10 At approximately 1.20 am you walked to Simms Road, Greensborough, not far from the stores where you had smashed the glass. Darryle Flowers had parked his Ford Utility motor vehicle in Simms Road. In the rear of his vehicle was a fishing rod, chimney sticks and brushes, a vacuum cleaner and several tools. You got into the vehicle by smashing the driver's door glass.
11 You remained in the vehicle for some time and then when you got out of it, you set fire to it (Charge 3). I was advised by your counsel it was a ‘write off’ as a result of the fire.
12 Investigators believed the fire started from the passenger seat and was lit using either a match or cigarette lighter.
13 At approximately 1.31 am you walked to Montmorency Secondary College on Para Road, Montmorency, where you smashed a glass pane on one of the doors leading into the English and Humanities staff area of the school building and entered the area, activating the school alarm.
14 You stayed inside the building for a short period of time and then set the building on fire (Charge 4).
15 Within a short time the school building was engulfed in flames.
16 The fire brigade and police attended.
17 There was CCTV footage from the College which captured you jumping a fence and walking around the school building at 1.31 am.
18 Investigators at that scene believed, once again, you had used either a match or cigarette lighter and combustible materials, such as paper, to start the fire, which commenced in the English and Humanities staff area of the school building.
19 As a result of your offending, the fire damage to the College was extensive. The English and Humanities staffroom areas were destroyed, and surrounding classrooms sustained major damage as a result of the fire travelling to those classrooms. Approximately 40 computers were destroyed, as was an extensive amount of student and teacher resources.
20 The students and staff of the college were further inconvenienced. As a result of the damage caused by the fire, six temporary portable classrooms had to be placed at the school grounds to accommodate students and staff while repairs were carried out.
21 The total damage caused by the fire at the College was in excess of $1.4 million. In that regard I note the Victim Impact Statement from the School Principal who estimated the damages at approximately $2 million.
22 At approximately 1.45 am police saw you on Para Road, outside the secondary college, and one of the officers had a conversation with you. You were wearing the same clothing depicted on the CCTV footage from the College. You said you were walking home as you only lived down the road.
23
At approximately 2.40 am, those same police officers were performing crime-scene guard duty in Simms Road at the burnt-out vehicle belonging to
Mr Flowers. You approached them and told them that prior to that car fire, you had seen three Ford motor vehicles in the street and males with torches looking into the vehicle once it had been burnt out.
24 You could not provide any further information of your alleged observations. At the time police noted you were holding a can of alcohol and appeared to be intoxicated. You then left that scene and walked towards Para Road.
25 I turn to the summary offence to which you have also pleaded guilty, that is, committing an indictable offence while on bail.
26 At the time of committing the offences that are before me on the Indictment, you were on bail for 13 separate offences involving thefts from motor vehicles.
27 As part of the bail conditions relevant to those offences, you had a curfew which required you to be at your place of residence between 9.00 pm and 6.00 am, unless in the company of your mother.
28 You were arrested for the offences before me on 25 September at your home in Para Road, Montmorency. A search warrant was executed and a number of items were taken from the property.
29 The clothing located and seized from your home was the same clothing seen on the CCTV footage worn by you when you set fire to the vehicle and to the College. A hammer located at your property was the same hammer used by you to smash the glass in your offending.
30 You were interviewed by police on 25 September 2015 and in that interview said that prior to the fires and damage to the vehicle and shop windows, you had been at the Urban Grooves Café in Greensborough, then walked home. You said you did not cause any damage and did not set the car or school on fire. You said you only walked through the school grounds to get to your home address.
31
You have a very extensive and troubling prior criminal history commencing
11 October 2002 with your most recent prior criminal offending on 2 April 2015, and I also discussed with counsel this morning some earlier offences in the Children's Court which I have disregarded, but at that hearing on 11 October 2002 you were sentenced to a Community Correction Order for a period of
12 months, with a number of conditions attached.
32 Your offending before me breached that Community Correction Order. You are, of course, not being sentenced for that breach, however such is referrable when I assess your rehabilitation prospects.
33 In the time between the first and your most recent prior court appearances, you have appeared at court on multiple occasions for offences including dishonesty, theft of motor vehicles, loitering with intent, driving offences including exceeding .05, and dealing with property suspected of being proceeds of crime.
34 Further of significance and relevance, you have appeared on multiple occasions for offences of criminal damage. The prosecution provided some details of that offending. This is very concerning behaviour by you showing a disrespect for the property of others and on some of those occasions there was reference apparently to your alcohol consumption. I do however note no prior history involving arson.
35 You have also breached in the past an undertaking, community-based orders and suspended sentences. You have also been required to serve periods in custody for your offending, although I note not extensive periods of time.
36 This brief summary of your criminal history is just that. Your offending history is extensive and I discussed that at length with your counsel and as I have already said, and I repeat, I however note that there are no prior appearances involving criminal damage by fire.
37 You have in the past been given the opportunity on numerous community-based orders.
38 Your counsel, Mr Rattray, who appeared on your behalf, acknowledged at the outset that as recently as your assessment with Mr Brewer, Consultant Clinical Neuropsychologist, on 25 May 2016, you were professing your innocence in relation to this offending. I was, however, advised by Mr Rattray that when the matter was at the Magistrates' Court for a committal hearing on 7 April 2016, you provided instructions to plead guilty to an appropriate indictment. On that date, 7 April 2016, you then pleaded guilty to the charges before me and the matter proceeded by way of hand-up brief.
39 You have pleaded guilty to the charges before me. You are entitled to have that fact taken into account in your favour, and I do so. The community, by your pleas of guilty, has been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial.
40
I also take into account you indicated your intention to plead guilty on
7 April 2016, despite your denial, in particular starting the fire at the College when interviewed by Mr Brewer on 25 May 2016.
41
Whilst I accept that your plea of guilty is indicative of some remorse by you,
I am concerned about the level of your remorse. In particular, I am concerned given your extensive history of offending. Also, on this particular occasion you specifically approached police with a story that was plainly untrue, in which you recounted alleged observations by you of the car fire. You maintained your lies at the time of the record of interview with police on 25 September 2015, denying this offending.
42 Mr Rattray indicated at the outset of his plea that he was relying on all the principles in R v Verdins & Ors[1], as applicable when sentencing you. This was later clarified by him urging Principles 1-4 would apply and that he was not relying on Principles 5 and 6 when sentencing you.
[1] (2007) 16 VR 269
43 Mr Rattray submitted his ultimate submission would be that I impose a term of imprisonment, together with a lengthy Community Correction Order. The bulk of the plea hearing will reveal extensive and rigorous analysis of the urged Verdins principles consistent with Binse v The Queen[2] and DPP v O'Neill[3]).
[2] [2016] VSCA 145 [70]
[3] [2015] VSCA 325 [35]++
44 Mr Rattray relied upon the report of Mr Brewer dated 28 June 2016, for details of your background and also in support of his submission that Verdins Principles 1-4 applied.
45 Mr Rattray conceded alcohol had a part to play in your decision-making when you committed the offences before me and that I could accept ‘beyond reasonable doubt’ you had a level of insight as to the potential adverse impact upon you of your alcohol use. He conceded you were intoxicated on the day of this offending and that concession by him is significant.
46 Mr Rattray's ultimate submission was that, relevant to the restatement of the Tsiaris Principles 1-4, there should be some moderation of your sentence but that you were marginally more culpable for this offending because of your decision to use alcohol.
47 Mr Rattray submitted your underlying cognitive impairment affected your decision-making processes, which included your decision to consume alcohol. In that regard, he relied upon the report of Mr Brewer (Para.17).
48 Mr Rattray submitted your impaired mental functioning due to your intellectual disability and cognitive impairment, even with the overlay of alcohol use on this occasion, reduced your moral culpability and general deterrence when sentencing.
49 I turn to the report of Mr Brewer. He interviewed you, as I have said, on 25 May 2016 and noted you denied committing the offending.
50 You said you had previously been diagnosed by a paediatrician with brain injury from drug and alcohol-related abuse at around the age of 17 years. You described having been prescribed Nulactyl from approximately 18 months until you were 18 years of age.
51 You reported being currently depressed and that you had suffered panic attacks in the context of your alcohol and cannabis use from your early teens, and also of ongoing nightmares.
52 You referred, in the past, to having heard male and female ‘voices’ since mid-adolescence, although I note there was no suggestion in the report of Mr Brewer that at the time of this offending you were hearing such ‘voices’.
53 Details were provided by you to him regarding your background and history. You are currently 31 years of age at time of sentence.
54 Your parents separated when you were 6 years of age, and thereafter, you had limited contact or support from your father. At the age of 6 you went to Travencore due to your aggression and absconding from school.
55 You have five siblings. The only ongoing supportive contact you said you had was with one of your brothers.
56 Your mother relied upon alcohol, which was a significant problem until you were approximately 4 years of age, which made parenting difficult for her.
57 You were slower at physical developmental milestones. You attended Broadmeadows Primary School and also attended special schools for the intellectually disabled.
58 At Travencore you were diagnosed with Attention Deficit Disorder and Oppositional Defiant Disorder.
59 At the age of approximately 7-8 years you spent time at CAAMHS as an inpatient and then three days as a day patient, with a further admission for two weeks in 1996 and again as a day patient in August 1997. You were prescribed dexamphetamine, despite not meeting all the criteria for Attention Deficit Hyperactivity Disorder.
60 In 1998 your case management from Disability Services was initiated.
61 You repeated most grades at school. In Grade 6 you were 14-15 years of age.
62 Your behaviour was an ongoing problem and you were suspended from school when 11 years of age. You then spent 12 months at home with your mother and in late 1997 commenced at Camp Meadows Primary, attending one hour daily, increasing to three-and-a-half hours, with integration support.
63 You were disruptive at school, often attracting multiple detentions and suspensions.
64 You attended Broadmeadows Special School fulltime until you were asked to attend alternative education due to your repeated suspensions for inappropriate behaviour.
65 You also spent time at Concord Special School until you were 18 years of age, during which your behaviour improved. Prior to that improvement, however, you had been expelled on a number of occasions at Concord for behaviour which included stealing.
66 You said you were bullied at primary school, but then stood up for yourself from around 8 or 9 years of age.
67 In 2004-2005 you attended Preston Reservoir Adult Community Education fulltime and then briefly commenced another course in 2006, although for a short time.
68 You ultimately achieved Year 10 level at school and completed one year of a TAFE course in mechanics.
69 You were a client of Berry Street between 2001 and 2006. During that time a bungalow was provided in 2003, for use in your mother's back yard, together with support from ACSO between 2004 and 2006. During that time you engaged with three different therapists.
70 Your alcohol abuse and use of pills commenced from mid-adolescence and I note was continuing at the time of your offending before me. I was advised by Mr Rattray that at the time of this offending you had consumed alcohol and had also taken Xanax.
71 You attracted Department of Health and Human Services attention from the age of 8 and were placed in multiple homes until the age of 13-14 years. You often ran away from that accommodation and were known as the ‘absconder’. Your mother was not able to assist at that time as she was not coping due to her own alcohol problems.
72 You first attracted police attention in your mid-adolescence for running ‘havoc’ in an abandoned school in Glenroy.
73 You discontinued dexamphetamine medication in 2006. At one stage you lived in Francis House for 12 months, which is part of an ACSO residential program, and in that regard I note reference in your criminal history to that residence and referred to on the 29 November 2006 hearing.
74 Your longest period of employment was for seven years emptying charity bins with St Vincent de Paul.
75 Mr Brewer also referred to you having been involved in a motor vehicle collision when you were approximately 24 years of age, in which you sustained a brief loss of consciousness.
76 Mr Brewer described an emotionally enmeshed relationship between you and your mother, which often resulted in conflict. I am told, however, your mother does continue to support you and visits you in custody, as does a worker from DHHS.
77 You described commencing to abuse alcohol after your sister was the victim of a sexual assault. You described using cannabis from the age of 17, up to 2 grams daily, which you said left you feeling paranoid. You said you ceased regular use of cannabis at the age of 25.
78
You then began using pills (Xanax), speed and cocaine from the age of 27.
It is unclear to me whether or not drug use, specifically speed or cocaine, was still an issue for you at the time of this offending. Clearly, from the details of your offending before me, alcohol was as was Xanax.
79 Mr Brewer noted, as do I, you do not have any prior history of arson as I have said several times.
80 A number of tests were conducted by Mr Brewer. You were assessed as falling within the "mildly impaired" range, with a full-scale IQ of 62 to 70. I discussed this in some detail with Mr Rattray when assessing the material before me upon which he relied relevant to the principles in Verdins. The transcript will reveal that discussion.
81 In his conclusions, Mr Brewer referred to your long history of drug and alcohol abuse from late adolescence, in the context of your mood and significant behavioural exacerbation from early childhood. You experienced features of psychosis, likely associated with substance use although, again as I say, there was no suggestion of psychosis at the time of this offending. Reference was made to your substance abuse from early to mid-adolescence of amphetamine/ methamphetamine, opioids and benzodiazepines.
82 Mr Brewer noted your overall neuropsychological picture reflected a man who suffered significant compromise of early socio-emotional scripts. The impact of your repeated head traumas and long history of substance abuse had served to compound your constellation of socio-cognitive emotional vulnerabilities. In his opinion, your history was consistent with a diagnosis of Mild Acquired Brain Injury.
83 In Mr Brewer's opinion, there was sufficient evidence to suggest that, at the time of the commission of these offences, you had impaired mental functioning from your intellectual disability and Acquired Brain Injury, and that it was causally (in part only) to the commission of these offences. He concluded you were, however not so sufficiently impaired that you were unable to appreciate the wrongfulness of your actions.
84 Mr Brewer, also in my opinion, significantly concluded that:
"More certainly, his substance abuse and associated anxiety and depression are very likely further contributors to his offending generally, both in and of themselves, and also as compounding agents of the impact of his underlying ABI and personality instability."
In his opinion, taking into account all relevant factors, there was sufficient explanatory weight to warrant consideration of mitigation of your responsibility to a mild-moderate extent for facing the consequences of your actions.
85 Mr Brewer also accepted, on the balance of probabilities, that your substance abuse and mood instability at the time of this offending reflected a mild-moderate compromising impact on your ability to reason and to engage in consequential thinking.
86 In Mr Brewer's opinion, you had a reasonable capacity to appreciate the extent of the impact of your behaviour upon others when not intoxicated or anxious, although your real appreciation of your behaviour at the time of this offending before me he said may have been ‘significantly impacted by substance abuse’.
87 In the opinion of Mr Brewer, if you did not participate in appropriate long-term therapy, you presented ‘at least a moderate risk for re-offending’. Given your history of poor engagement with treatment, Mr Brewer suggested your prognosis was somewhat limited.
88 A number of recommendations were made by Mr Brewer for future assistance that may be provided to you to assist your rehabilitation.
89 As I discussed with your counsel, I remain very concerned by your use of alcohol on this occasion, it would appear, to the point of being adversely affected. It is clear from your prior criminal history, albeit displayed clearly in different types of offending to that before me, that you are aware of the adverse impact upon you of excessive alcohol consumption, and I discussed that with your counsel and such is also relevant when determining your rehabilitation prospects which at this stage I have guarded optimism.
90 When assessing the applicability of any of the Verdins principles, in your case, I note your offending involved consumption of a considerable quantity of alcohol.
91 In that regard I note the decision of Johnston v The Queen[4], in which his Honour, Redlich JA stated:
[4] [2013] VSCA 362
"For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a ‘realistic connection' between the mental condition and the commission of an offence. It must have ‘caused or contributed' to the offending or have been ‘causally linked' to it. The argument raised here — that the appellant's moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction, and an underlying mental disorder — must be rejected.
Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation. Circumstances must be quite exceptional before the effects of drugs or alcohol at the time of offending can mitigate the offender's moral culpability. The underlying reason sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence. Where a person's mental state is affected by voluntary drug-taking, it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any foreknowledge of the mental state that would be induced by the taking of drugs. Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender's recourse to drugs.
Furthermore, a drug or other form of addiction will not reduce an offender's moral culpability where the nexus of the addiction to the crime is unsubstantiated. As the sentencing judge observed, nothing in the report of Dr Maher or the ARBIAS report was sufficient to establish a Verdins argument that the appellant's moral culpability was reduced on account of his depression and anxiety. As such, it would be contrary to the public interest and to a long line of authority in this Court to mitigate the appellant's culpability on the basis of such a tenuous causal link. Moreover, the reports show that the appellant had a long history of abusing both heroin and benzodiazepines at the same time. That such a combination of drugs would serve to disinhibit and disorient him was something the appellant knew all too well."
This is by no means the only authority that refers to drug/alcohol consumption and the applicability or otherwise of Verdins' principles.
92 In my opinion, any moderation of your moral culpability, consistent with Verdins' principles is not significant due to your consumption of alcohol.
93 Turning to the second principle in Verdins, I am of the opinion a term of imprisonment is the only appropriate disposition. The period of incarceration will take into account your intellectual disability, Acquired Brain Injury and cognitive deficits.
94 As with your moral culpability some slight moderation is applicable relevant to general deterrence, but again I note your alcohol consumption on this occasion.
95 Turning to Principle 4, specific deterrence is important when sentencing you, given your very extensive criminal history. Again, any moderation consistent with Verdins is not significant.
96 As I have previously stated, following further discussion with Mr Rattray, he was not relying upon Principles 5 and 6 in Verdins. In my opinion, such was an appropriate concession on all the material before me.
97 Having said that, I do take into account and accept that consistent with general sentencing principles, your Acquired Brain Injury, intellectual disability and cognitive deficits will make your time in custody more difficult than a more mentally able prisoner, and such is a relevant sentencing consideration.
98 You are currently residing in an appropriate unit at Port Phillip Prison which provides assistance to prisoners such as yourself with similar issues. I trust the prison authorities will bear this in mind following formal sentencing by me of you.
99 Mr Rattray submitted that also relevant when assessing appropriate disposition, was your dysfunctional background. In that regard, I note Scott v The Queen[5] and have taken that into account.
[5] [2013] VSCA 347 [31]-[32]
100 Mr Rattray's primary submission was that you be sentenced to a term of imprisonment together with a lengthy community correction order and that, as part of the community correction order you be assessed for a Justice Plan.
101 I discussed with Mr Rattray previously prepared Justice Plans for you, as recently as 13 December 2012 (see your prior Criminal Record) and also prior to that date (also again see your prior Criminal Record). In my opinion, obtaining a further Plan would not assist me in determining the appropriate sentence.
102 Mr Rattray's secondary submission, without abandoning his primary submission, was that if I imposed a term of imprisonment, the non-parole period should not exceed far beyond the time you have already spent in custody to date, being 307 days up to and including, 27 July 2016.
103 Ms Mahady, who appeared on behalf of the prosecution, conceded that while Verdins was established, it was limited due to your own consumption of alcohol, and I agree. I am also aware, as I say, of your previous offences involving consumption of alcohol and your knowledge of its adverse impact upon you.
104 Ms Mahady confirmed that none of your prior court appearances related to criminal damage by fire and that is of course so.
105 The prosecution submitted the only appropriate sentence for your offending was a term of immediate imprisonment. Ms Mahady relied upon your prior court appearances and previous breaches of court orders, including community correction orders and community-based orders, as they were then called.
106 Ms Mahady submitted your offending was serious, in particular that involving Montmorency Secondary College. I agree..
107 Ms Mahady submitted s6B Sentencing Act 1991 applied when sentencing. Following a term of imprisonment being imposed on Charge 3, you fall to be sentenced as a serious arson offender in relation to Charge 4. Such, she submitted, then enlivened s6D and 6E Sentencing Act 1991.
108 Pursuant to s6D, in determining the length of a sentence of imprisonment, the court:
(a) must regard the protection of the community from you as the principle purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.
109 Ms Mahady was not urging a disproportionate sentence and, in my opinion, I am able to appropriately sentence you without the need to impose a disproportionate sentence.
110 Returning to your rehabilitation prospects, as I have said, I have at best guarded optimism. You have longstanding issues, not only your intellectual disability, cognitive impairment, and recently, Acquired Brain Injury, but you have repeatedly breached court orders which had provided assistance to you through the various conditions imposed and with the assistance in the past of Justice Plans. I also note your large number of prior offending involving criminal damage, although again I note, none involving arson.
111 It is clear from the report of Mr Brewer that at least your alcohol consumption and use of either illicit drugs and/or prescription medication is an ongoing issue for you and that your rehabilitation prospects will depend, ultimately, upon your ability to successfully address those issues. Also as noted by Mr Brewer, your previous history of offending and poor response to therapeutic treatment in the past meant you, at present, had ‘at least a moderate risk’ of re-offending. Hopefully, a change to that assessment will occur if you undergo treatment offered to you in custody and upon release.
112 When sentencing you however, despite my concerns about your rehabilitation prospects, I must seek to maximise your chances of your rehabilitation as they may be.
113 There is a Victim Impact Statement from Allan Robinson, Principal of Montmorency Secondary College. I have read that statement. It is clear the school community suffered considerably in the manner described in that statement as a direct result of the fire that you lit at the College.
114 Mr Robinson referred to the emotional impact of your offending on staff and students through the destruction in the fire of school resources and offices. There existed a constant reminder of what had been lost and violated. Anxiety and uncertainty had been created. The teaching staff had to spend their personal time trying to rebuild and reclaim their teaching resources. The fire had also caused the loss of artefacts, items and treasures. School teaching resources were lost as well as current student work and records.
115 At the time of your offending this caused particular stress and anxiety to staff teaching students studying then VCE subjects, as exams were imminent.
116 Your offending destroyed years of work and exemplars that could not be recreated.
117 A number of staff lost personal belongings and had to receive professional counselling and support. The financial cost of your offending had been significant and continues.
118 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
119 As well as matters personal to you to which I have referred to date, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. As I have said, I have, consistent with the principles of Verdins, moderated to some small degree, the need for general deterrence when sentencing you.
120 I have read decisions of Quarrel v The Queen[6], DPP v Derby[7] and Martin v The Queen[8], which include offences of arson. It is however very difficult comparing cases factually, as facts vary enormously case to case, as do matters personal to offenders and in mitigation of sentence. I also again note that you are sentenced on Charge 4 as a serious arson offender and I direct that be entered into the records of the Court.
[6] [2011] VSCA 125
[7] (2007) 171 A Crim R 302
[8] [2015] VSCA 248
121 There is also the need for specific deterrence when sentencing you, given your extensive prior criminal history and numerous breaches of court orders, including breach by this offending of the most recent Community Correction Order imposed on 2 April 2015.
122 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am concerned about the need to protect members of the community from you. I am concerned about your likelihood of re-offending.
123 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
124 In my opinion, a disposition involving a term of imprisonment together with a Community Correction Order, even a lengthy one, would not appropriately reflect all sentencing considerations.
125 When sentencing you I have also taken into account the principle of totality.
126 In so determining that a community correction order is not appropriate, I have of course taken into account the decision of Boulton & Ors v R[9], which has been referred to repeatedly since then in cases including DPP v Maxfield[10], DPP v Allan[11], and most recently Gul v R[12].
[9] [2014] VSCA 342
[10] [2015] VSCA 95
[11] [2015] VCC 1083
[12] [2016] VSCA 82
127 When sentencing you, as I say, I have taken into account the principle of totality and I sentence you as follows.
128 On Charge 1, you are convicted and sentenced to 6 months' imprisonment.
129 On Charge 2, you are convicted and sentenced to 6 months' imprisonment.
130 On Charge 3, you are convicted and sentenced to 12 months' imprisonment.
131 On Charge 4, you are convicted and sentenced to 2 years and 6 months' imprisonment.
132 On Charge 5, you are convicted and sentenced to 6 months' imprisonment.
133 On the summary charge of committing an indictable offence while on bail, you are convicted and sentenced to 1 month's imprisonment.
134 I direct the following in relation to cumulation and concurrency.
135 Charge 4 is the base sentence and I direct that 2 months of Charge 1 be served cumulatively upon Charge 4.
136 I direct that 2 months of Charge 2 be served cumulatively upon Charge 4.
137 I direct that 5 months of Charge 3 be served cumulatively upon Charge 4.
138 I direct that 2 months of Charge 5 be served cumulatively upon Charge 4.
139
I direct that 7 days of the summary charge be served cumulatively upon
Charge 4.
140 That results in a total effective sentence of 3 years 5 months and 7 days' imprisonment and I direct that you serve a period of 2 years and 2 months' imprisonment before you are eligible for parole.
141 For clarity, the orders for cumulation are upon each other and upon the base sentence.
142 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to all these charges but been found guilty of them by jury verdict, I would have sentenced you to a term of imprisonment of 6 years' and set a non-parole period of 4 years and 6 months' imprisonment.
143 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 314 days in custody (up to and including yesterday 3 August 2016) by way of pre-sentence detention for these charges and I direct that be entered into the records of the Court and I want that checked by counsel.
144 The prosecution made application for a disposal order. That was consented to by counsel on your behalf and I make the order in the terms sought.
145 The prosecution also made application for compensation in the sum of $790 and counsel on your behalf consented to that order being made and I make the order in the terms sought.
146 Now, that $790 I think was relevant to Charge 1. I better check that.
147 MISS MAHADY: I think that's right, Your Honour.
148 HER HONOUR: Yes Charge 1. On my typed version it was two but it is Charge 1 and I also, as I have said, declare that you have been sentenced as a serious arson offender in relation to Charge 4 on the Indictment.
149 Now, PSD? Well, first of all the mathematics. How did you go with the maths? Anyone want help with the maths?
150 MISS MAHADY: Just the total effective sentence, Your Honour, is three years six months seven days; is that right?
151 HER HONOUR: Hold on a minute. Whatever it works out at - Ms Jackson? Well, let's work it out. Two years - - -
152 MISS MAHADY: Well five months I'm sorry, Your Honour.
153 HER HONOUR: No let's work it out. Yes that should be three years, five months and seven days.
154 MISS MAHADY: Thank you, Your Honour.
155 HER HONOUR: So does that now make sense?
156 MISS MAHADY: It does.
157 HER HONOUR: Are you happy with the maths? Do you want me to clarify any of it?
158 MISS MAHADY: No I'm happy, Your Honour.
159 HER HONOUR: How about you, Mr Rattray, are you okay with the maths? Do you want me to clarify any of it?
160 MR RATTRAY: I'm grateful for my learned friend's question, Your Honour. I would have asked it as well.
161 HER HONOUR: Would you? Well, better go through it again.
162 MR RATTRAY: No I agree that it's correct, Your Honour. I did the maths too. That's right. It's three years five months and seven days.
163 HER HONOUR: Yes that's the one. Now, yes PSD. Was that right? That's 314 days up to and including yesterday, not today but yesterday? Now, can I - it's got to be right. Every day that one does is important. It's got to be counted. It's got to be right. It has to be right I should say.
164 MISS MAHADY: We're just double-checking it now, Your Honour.
165 HER HONOUR: Well, I think you better. But did it count the day of the plea? That's the one you've got to check.
166 MR RATTRAY: It didn't count the day of the plea. No Your Honour is correct.
167 HER HONOUR: Are you sure because every day counts when you're doing it. I just want you to be sure before you leave.
168 MISS MAHADY: Yes, Your Honour.
169 HER HONOUR: If you have some bolt of lightning thought before the end of the day that that's wrong and it needs to be changed, before it's entered into the records of the court you should let Ms Jackson know. So at this stage declare the PSD, as I have said, of 314 days which is up to and including yesterday which was the 3rd of August 2015. All right, is there anything else? No?
170 MR RATTRAY: Thank you.
171 HER HONOUR: All right then. Thank you, you will have to leave. Thank you counsel for your assistance.
172 MISS MAHADY: Thank you, Your Honour.
- - -
0
5
0