Director of Public Prosecutions v Poole
[2018] VCC 2107
•13 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-17- 01090
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAYDON POOLE |
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JUDGE: | HIS HONOUR JUDGE GRANT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 June 2018 (Bendigo); 18 September 2018 (Geelong) |
DATE OF SENTENCE: | 13 December 2018 |
CASE MAY BE CITED AS: | DPP v Poole |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2107 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
For the Director | Mr A Moore Mr G Martin (13/12/18) | OPP |
For the Accused | Mr Habid | Nicholas WJ Rolfe |
HIS HONOUR:
1 Braydon Poole, you have pleaded guilty to two counts of intentionally or recklessly causing a bushfire. The maximum penalty for this offence is 15 years’ imprisonment.
2 On 14 and 15th January 2016, you were with Jacob Whitehead, Robert Humphrey and two other young men in a motor vehicle that travelled from Maryborough to Avoca and down to Ballarat, and then returned along the Sunraysia Highway through Avoca to Bealiba. During the Ballarat leg of the journey, two roadside bushfires were lit. The first was recorded at Lexton at 23.32 on 14 January, and the second at Waubra some 14 minutes later. On the journey back from Ballarat, a further roadside fire was lit at Lamplough. It was reported at 03.48 on 15 January 2016. Fortunately, each fire was extinguished following a prompt response by the CFA.
3 The site of the first fire was the grass verge on the eastern side of the dual single lane highway. An area approximately 23 metres by 19 metres was burnt. The fire had entered a paddock near its northern end but the damage was limited due to lack of vegetation along the fence line. The second fire was started near the edge of a roadside drain. It did not cause significant damage. The third fire was located on the west side of the Sunraysia Highway near Woodstock Road. The fire was started on top of an embankment and it spread to cover an area of approximately 178 meters by 25 metres along the verge, extending from near the road edge to the paddock fence. Fire had not entered the paddock significantly.
4 Your behaviour in being a party to the lighting of these three fires is covered by Charge 1 on the indictment. It is a rolled up charge.
5 On 17 January 2016, you were again in the company of Humphrey and Whitehead. At about 12.10am you were a passenger in a car travelling along the Avoca-Bealiba Road when the car stopped near a haystack on a farm at Archdale. Whitehead got out of the car and lit the haystack with a cigarette lighter. You all then left the area. The haystack was totally destroyed. The fire spread from the haystack and travelled towards a farmhouse situated approximately 50 metres from the haystack. The fire was stopped by CFA units 15 metres from the house. A 90-year-old woman was asleep inside the premises and was only alerted to the fire when she was advised by the CFA. The hay was valued at $6,000. Your involvement in lighting this fire is the basis of the second charge on the indictment.
6 I have read the victim impact statement from the victim of the second charge. He says that he has moved on from the destruction of his hay. Understandably, his main concern was the danger that arose to his 90 year old mother who was asleep in the house. As he says in his statement, “Her home was close to being burnt down while she slept.”
7 This is serious offending. Charge 1 relates to the lighting of fires in open, dry country late at night. The prospect of considerable damage is obvious. It was fortuitous that the CFA attended so quickly and limited the damage. The second charge is even more serious, exposing, as it did, an elderly woman to grave danger. General deterrence is an important sentencing consideration in this case. A strong message must be sent to any other members of the community who may be tempted to behave in the way that you did. Just punishment and denunciation are also relevant.
8 You have prior convictions. They commence with an appearance in the Maryborough Children’s Court in March 2013 for offences of theft and criminal damage. There are subsequent appearances for criminal damage in July 2013 and May 2015. There is an appearance for reckless conduct endangering serious injury in January 2015. You have been sentenced to a number of Community Corrections Orders (CCO) with conditions requiring compliance with a Justice Plan. Most importantly, on 6 May 2015 you appeared in the County Court at Bendigo for an offence of intentionally cause a bushfire, where you were placed on another CCO. It is an aggravating feature of the current offending that it occurred whilst you were on that CCO. Given your history, specific deterrence and protection of the community are relevant sentencing considerations.
9 Mr Poole, normally, when a person commits a serious offence while on a CCO they can expect a court will deal with them severely. This is particularly so when the offending is of a similar serious nature. A lengthy jail sentence is the usual outcome. However, your counsel submitted that there were a number of reasons why in your case the appropriate order would be a short jail term that recognised time served, together with a community corrections order with a justice plan. I accept his submissions and I now explain why.
10 First, there is the fact that after the offending you did spend time in custody. You were arrested on 1 March 2016 and spent 86 days on remand. You were 20 years old at the time. It was your first time in custody. When you were recently assessed by Ms Courtney Lowther, Senior Clinical Psychologist from Forensicare, you told her that prison was “horrible” and that it was a “wake up call.” I have no doubt this is true.
11 Secondly, since your release on bail your circumstances have changed and there has been a significant change in your behaviour. Your bail had strict conditions and you have been complying with those conditions. You have had no contact with your co-offenders. Most importantly, there has been no further criminal behaviour in the nearly three years that have elapsed since these offences were committed. Your personal circumstances are stable. You are in a relationship and you have a young child. You reside with the parents of your partner in Goornong. You no longer drink alcohol to excess. You are working two jobs. You are also actively involved in the Bendigo Victory Football Club, which is part of the Reclink Australia Football League. All of these matters speak very positively for your prospects of rehabilitation.
12 Thirdly, you have acknowledged responsibility for your offending by entering a plea of guilty. The plea has also saved the victims from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
13 Fourthly, you are still a young man and, even though this offending is serious and you have prior convictions, rehabilitation remains a relevant sentencing consideration.
14 Fifthly, you present with a cognitive impairment which places your full scale IQ in the borderline range. You are registered with disability services. I am satisfied that there should be some moderation of sentence because of your cognitive impairment. Ms Lowther puts it this way, “In terms of the formulation of his offending, the fire setting (including previous offence and index offence) appears to have occurred in the context of general anti-social behaviour within an anti-social peer group. At least for Mr Poole, the fire setting did not appear to be motivated by a specific interest in fire or use of fire in an instrumental or emotionally expressive way … What was apparent was that, due to his cognitive impairment, he had issues with problem solving, consequential thinking, and impulsivity, with these issues being exacerbated by his alcohol intoxication at the time. He was suggestible and would engage in behaviours he may not have necessarily agreed with, in order to get the group to like him. As a result, he was susceptible to being in a scenario where the group were involved in fire lighting.”
15
Finally, there is the issue of parity. Your co-offender, Mr Humphrey, was placed on a CCO for his role in this offending. His circumstances were different to yours. He was not as heavily involved in the offending, he offered to give evidence in any hearing against Mr Whitehead and his prior history is not as extensive as yours. These were powerful matters in his favour. However, you have, as I have already said, spent time on remand and that time has, as Ms Lowther recognises, had a significant deterrent effect. This fact weighs heavily in my decision to treat you in a way that is generally similar to
Mr Humphrey.
16 I have had you assessed by Community Corrections and by Disability Services. You have been found to be suitable for a Community Corrections Order with a Justice Plan attached. In determining the length of the order, I take account of the fact that you have been on fairly strict bail since June 2016.
17 Will you please stand?
18 You are convicted on the two charges and sentenced to an aggregate 86 days imprisonment. I make a declaration that you have served 86 days by way of pre-sentence detention.
19 In addition, you are placed on a CCO for a period of two years with the following conditions.
· You are to be under supervision;
· You are to undertake 240 hours of community work;
· You are to undergo assessment and treatment including testing for alcohol abuse or dependency;
You are to undergo offender behaviour programs as directed;
You are not to contact or associate with two of your co-offenders, namely Robert Humphrey and Jacob Whitehead;
· You are to comply with the conditions of the Justice Plan; and
· And you are to appear back before me for a judicial monitoring hearing at 10.00am on 09/04/2018.
I direct that 40 hours satisfactorily undertaken for treatment and rehabilitation will be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of 12 months imprisonment together with a two year Community Corrections Order.
20 Mr Poole, do you understand what has happened?
21 OFFENDER: Yes.
22 HIS HONOUR: You have been sentenced to a gaol term which you have served, together with a two-year community corrections order. That order will require you to come back before me on 9 April, and I will get an updated report telling me how you are progressing on the order. If you are progressing well, you have nothing to worry about. But it is important you understand that I am keeping you under my supervision.
23 You have stayed out of trouble since your release on bail, and that is very positive. You are working hard, and that is very positive. You are supporting your family, and that is very positive. That cannot slip away. There can be no more trouble, because if you breach this order by reoffending or not complying with the conditions, then you will almost certainly go back to prison.
24 You have had a taste of prison, and you have told everybody that you do not want to go back there. Well, the best way that you can ensure you do not go back to prison is to make the Community Corrections Order work.
25 Just take a seat there for a moment. I will have to get you to sign the order. There are no ancillary orders?
26 COUNSEL: No, Your Honour.
27 HIS HONOUR: Mr Habib.
28 MR HABIB: I just wanted to enquire whether Your Honour would be prepared to have Mr Poole appear by way of video from Bendigo for the judicial monitoring as opposed to coming down to Melbourne for that judicial monitoring session. Or should that be at the decision of Corrections, perhaps?
29
HIS HONOUR: Yes, it really should be, I suspect, a decision of Corrections. If he is not going well, then he needs to be before me.
If he is doing brilliantly well, then I would consider allowing him to be video linked and speaking to him via that process.
30 MR HABIB: We'll wait and see.
31 HIS HONOUR: But the whole purpose of the monitoring, really, is for me to have an understanding of how he is going, and if he needs a bit of a pep talk, to give it to him. And if I have to give him a pep talk, I want him here. So at this stage, I would say he should be here. But if Corrections are very happy with the way he is progressing then they can make an application to my associate for a video link.
32 MR HABIB: As the court pleases.
33 HIS HONOUR: And if we have got a good report, then I am prepared to accommodate that. But if he wants that to happen, then he must make sure he does really well on the order.
34 MR HABIB: Your Honour, those were raised simply as a query by myself, not on instructions. I'd also confirm with Your Honour that he'd be required to report to the Bendigo Corrections within 48 hours of the making of this order.
35 HIS HONOUR: He will have to report within two working days.
36 MR HABIB: Two working days, yes.
37 HIS HONOUR: Which would be before 4 o'clock on Monday.
38 OFFENDER: I've got an appointment 2 pm Monday.
39 HIS HONOUR: You have got an appointment 2 pm Monday? All right. That will go on the transcript. I will note that he has got that appointment.
40 MR HABIB: As the court pleases.
41 HIS HONOUR: Yes, thank you, Mr Habib.
42 MR HABIB: Thank you.
43 HIS HONOUR: There is nothing more, Mr Martin?
44 MR MARTIN: No, Your Honour.
45 HIS HONOUR: Yes, thank you.
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