Director of Public Prosecutions v Rae
[2016] VCC 899
•14 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00661
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| LUKE DANIEL RAE |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April, 14 June 2016 | |
DATE OF SENTENCE: | 14 June 2016 | |
CASE MAY BE CITED AS: | DPP v Rae | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 899 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Jury verdict of guilty to one charge of arson, pleas of guilty to two charges of theft and two charges of burglary – fire in house lit by match (reckless not deliberate) – house destroyed – no person in occupation – offender affected by alcohol – no motivation – stole items from house and from nearby house – all recovered – offender has long-standing alcohol dependency with deficient coping skills – unresolved grief and loss - limited criminal history – genuine remorse – good prospects for rehabilitation.
Sentence: TES 6 months’ imprisonment combined with 18 month CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Buckland | OPP |
| For the Offender | Mr A. Marshall - trial/plea | Vaccaro Solicitors |
Mr M. Turner - sentence
HER HONOUR:
1 Mr Rae, you can remain seated for the moment. I will ask you to stand later. Luke Daniel Rae, you have been found guilty by a jury of one charge of arson and you have pleaded guilty on a separate indictment to two charges of burglary and two charges of theft. You committed all of the offences on the same night at two houses a few doors away from where you were then living. I will be sentencing you to a term of imprisonment of six months to be followed by a community correction order for 18 months. I shall explain my reasons.
2 On 12 November 2014 in the early hours of the morning you left your home in Mannana Street, Rye after having had an argument with your partner. You had been drinking very heavily and you were angry and had broken the television set. You intended to go for a walk and went around the block and as you returned you went into number 2 Mananna Street which you thought was an abandoned house. You broke a window and entered the house and stole a chainsaw and a television set which you placed in the driveway of your house. You then went across the road to number 3 where you pushed open the front door which although it appeared to have been locked gave way easily.
3 Making two trips back to your house, you stole a television set, a DVD player, a microwave, a stereo, a grinder, a drill, a screwdriver set and a socket. It was after the first trip back to your house that the fire started. It was dark in the house and you had not tried to turn on any lights. Whilst in the centre bedroom of the three, investigating the contents of a cupboard, you attempted to light a cigarette using matches. You dropped the first match which you struck and you then lit the cigarette with a second match. At that point the nearby bed caught fire and you left the house and went home, pausing only to pick up the microwave and some tools which you had placed by the front door.
4 You did not call emergency services. The fire took hold destroying the house. Your explanation given in your record of interview was that the fire started on the bed and escalated to a large size very quickly with no opportunity for you to attempt to put it out, and it did not occur to you to call the fire brigade. You said you had not intended to commit burglaries or set fire to any house and you had not been motivated to destroy evidence of your presence in the houses.
5 The fire was investigated and a forensic officer identified the likely seat of the fire as being on the bed as you have described and as having probably been started by a match or cigarette lighter. A neighbouring property also sustained damage from the fire to a fence, with cracked windows and some other heat damage. The stolen property was found at your house the next day when police conducted a search with your cooperation. You made full admissions to the thefts and burglaries, but denied having deliberately set fire to the house. You said it was an accident caused by the dropped match.
6 The house was a holiday house owned by sisters Evelyn Harzmeyer and Gloria Parsons. They provided victim impact statements explaining that it had been built 45 years ago by their father and brother and maintained within the family for their use. It was of great importance to the entire extended family and much in the way of irreplaceable family memorabilia was lost. It was particularly important for another brother who is intellectually disabled and had a strong attachment to the house. He had found it very difficult to accept that it had been destroyed and this caused disturbed behaviour for a long time, resulting in the need for medical sedation.
7 The victim impact statements were read out in court. Your response as recorded by the psychologist, Ms Crutchfield, was of sincere and genuine remorse, recognising that the family's losses can never be made good despite the insurance they had for the property.
8 Ms Crutchfield saw you recently for the purposes of an assessment for this hearing. She set out the details of your background and your present circumstances. You are aged 29. Because of your parents' separation and your mother's illness you were raised by your grandmother. Your ongoing relationship with your father was adversely affected by this family dynamic. Although this relationship was later repaired, your father died in 2012, shortly after the death of your grandfather when you were aged 24.
9 You left school after year 9 and started an apprenticeship, but later began working as a truck driver. You married and had two children, but the marriage broke down apparently in the context of your drug and alcohol abuse. You have been unable to have contact with those children until recently as they live interstate under a witness protection program consequent upon their mother's role as a witness in a trial. Alcohol has been a problem since your teenage years and indeed is the root cause of the offending in this case. It was only after the death of your father that drug use became a problem.
10 You have been in a new relationship for the last two and half years and you are the father of twins aged about eight months. When this relationship began you ceased drug use and that is no longer a problem but you continue to drink alcohol. After the offence occurred you reduced your alcohol intake and recently you began attending Alcoholics Anonymous meetings. You reported to Ms Crutchfield that you found the support provided through those meetings very helpful and that you intend to continue. Ms Crutchfield concluded that your history of alcohol abuse masks a lack of coping skills with your resort to alcohol at a young age, having impeded the development of those skills.
11 Fortunately, however, you do not have an anti-social personality disorder and as a person of average intelligence, with full understanding of the difference between right and wrong, and with genuine remorse, your prospects for rehabilitation are good. It seems you also suffer from unresolved grief and feelings of loss following your father's death and the loss of your family. I note that your criminal history is limited to some driving charges and some other relatively minor offending for which you were sentenced to a community correction order that is still in operation.
12 These are compelling reasons for some considerable leniency in your sentence, to allow an opportunity for you to take part in programs to address the underlying problems to which I have referred. It is in the interests of the community generally that your rehabilitation be addressed, although taking into account that arson is a very serious crime with the potential for placing people at risk of death or serious injury. This was a senseless crime for which you had no motive, distinguishing it from many other incidents of arson where revenge of some sort may be the motivation.
13 The jury accepted that you did not light the fire deliberately but did so recklessly while drunk and of course you failed to do anything to put it out. Where abuse of alcohol has caused such serious disinhibition and absence of judgment as to prompt the reckless lighting of a fire in a house, it is most important that the cause of the abuse of alcohol be addressed with appropriate punishment imposed as well.
14 The maximum penalty for arson is 15 years' imprisonment and for burglary and theft 10 years. A sentence of imprisonment in your case is necessary because of the great importance that must be attached to the need to deter others from such a serious crime and for the court to denounce the crime. But it can be modified by the mitigating factors to which I have referred. In relation to the burglary and theft charges, you are entitled to a discount on your sentence because of your plea of guilty, and I take that into account for having a trial in relation to those matters.
15 Would you stand now please, Mr Rae. You have been assessed as suitable for a community correction order. You will have to serve that period of imprisonment first to which I have referred.
16 For the offence of arson you are sentenced to six months' imprisonment.
17 For each of the charges of burglary and theft you are sentenced to four months' imprisonment to be served concurrently, meaning that the total effective sentence is six months. You must then commence a community correction order, which applies to all the charges which will last for 18 months.
18 You will be under supervision and must undergo assessment and treatment for alcohol use and for any psychological issues. You must take part in any programs designed to reduce offending. You must also perform 100 hours of unpaid community work over 12 months. Within two days of your release from prison you must attend the corrections office at 5 Elgin Boulevard, Wodonga.
19 The prosecution seeks an order for a forensic sample of saliva to be obtained and you have consented to that through your counsel. I only need to advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.
20 Now, I have a note that the prosecution also seeks an order for compensation and I take it that that is in relation to the burglary at number 2 Mannana Court, but I do not have details about that, Mr Buckland.
21 MR BUCKLAND: I don't think that's correct. I think I only foreshadowed as a possibility.
22 HER HONOUR: You did, that's right.
23 MR BUCKLAND: I haven't been advised of anything further so I take it there isn't any compensation order sought.
24 HER HONOUR: All right. I withdraw that indication then from the sentencing remarks. Are there any other matters?
25 MR BUCKLAND: No, there's not, Your Honour, and the order for the forensic sample has been prepared.
26 HER HONOUR: Very well. The community correction order can be given to Mr Rae now. Mr Turner, there are two separate CCOs because of the two separate indictments.
27 MR TURNER: Yes, Your Honour.
28 HER HONOUR: But they cover exactly the same field. Mr Turner, is your client's mother here in court?
29 MR TURNER: Yes, Your Honour.
30 HER HONOUR: All right. I'll leave the Bench in a moment and give her the opportunity to say good-bye to her son for a few moments.
31 MR TURNER: If Your Honour pleases.
32 HER HONOUR: Are you from Network? Thank you very much. I appreciate your presence. All right, I'll leave the court now.
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