Director of Public Prosecutions v Sadkowski

[2016] VCC 1090

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00846

DIRECTOR OF PUBLIC PROSECUTIONS

v

JILLIAN SADKOWSKI

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2016
DATE OF SENTENCE:	1 August 2016
CASE MAY BE CITED AS:	DPP v Sadkowski
MEDIUM NEUTRAL CITATION:	[2016] VCC 1090

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Malobabic	OPP
For the Accused	Mr L Dean	SLADES & PARSONS SOLICITORS

Pages 1 - 9

 

 

HIS HONOUR:

1Jillian Sadkowski, on 29 July 2016 you pleaded guilty to one charge of arson.  The charge of arson has a maximum penalty of 15 years' imprisonment.  The offence occurred on 4 December 2010.  You have no prior convictions. You have no subsequent convictions or charges outstanding.

CIRCUMSTANCES OF YOUR OFFENDING

2The background to your offending is that in the period leading up to March 2010 you were subjected to violence from your partner.  You had two small children from that relationship.  You decided to move your children and yourself to a safer environment.

3You had limited financial resources and at that time no employment.  You saw a private advertisement for a house for rent at 72 Farrants Road in Werribee.  At that time your mother was living in the Werribee area.  You agreed to rent the property for $200 per week.  There was no formal lease and no real estate agent involved in the process of you renting the property.

4Throughout the time of your nine month tenancy at that property there were five Residential Tenancy Tribunal hearings at VCAT about the condition of the house.  There were five separate orders made by VCAT for the landlord to make repairs and improvements to the property.  The landlord ignored and did not comply with any of those VCAT orders.

5The dispute between you and the landlord and his son continued until
3 December 2010 when you agreed to vacate the premises on the condition that you received your $200 bond back from the landlord.  You were paid the $200 bond in notes that were rejected by your bank.  You were furious at this treatment by your landlord.

6On the evening of 3 December 2010 you and your children were to sleep in your car.  Your plan was to catch the ferry to Tasmania where your father then lived.  You returned to the house at 72 Farrants Road, Werribee and entered the house.  You placed paper on the electric hotplates of the stove and turned them on. There was a trail of paper left by you into the lounge room.  You left the house.  At that time the house had not caught fire.  The house subsequently caught fire and burnt down.  The total damage was assessed at $136,000.  This sum was paid to the landlord by the insurer.

7When you were interviewed by the insurance company investigator by telephone on 11 March 2011 you denied any involvement in the fire and suggested that the landlord may have arranged a deliberate burning of the house due to its poor condition.

8On 12 July 2013 you attended at the Werribee Police Station by appointment.  You had travelled from Mount Gambier in South Australia with your two young children to take part in a record of interview with police.  The record of interview is extensive.

9The motivation for this crime was set out in your own words as follows in that record of interview.  I am just going to recite some of it: 

She was mad.  She was on Cipramil and Seroquel tablets.  She asked her doctor to take her off the medication as she could not handle her temper.  “I am not going to totally blame it all on the tablets, but I want that known."

"I felt hard done by, I felt I had nothing.  I felt that everyone can do wrong by me, and I haven't done nothing wrong.  It was a payback, in revenge." 

The next statement you made is you had no money and you had nowhere to go. You then said two days later that you went to Tasmania.

You also stated that you knew that you were doing wrong and you should not have done it.

10You have fully cooperated with the police and you have pleaded guilty at the earliest time.  The Prosecution concede that your admissions in the record of interview form a major part of the evidence against you and without those admissions the Prosecution case was based on suspicion and circumstantial evidence at best.

11This means that your plea of guilty is very significant in the context of your remorse and other sentencing considerations.  There was no victim impact statement filed in this case.

YOUR PERSONAL CIRCUMSTANCES

12The court has been told little about your personal circumstances.  The first process in this hearing was a successful application to release Alfred Hospital notes relating to your admission for psychiatric assessment on 19 July 2016 by your Counsel.

13There was no formal psychiatric or psychological report relied upon in your plea.  Your Counsel elected to proceed with the plea and exhibited the Alfred Hospital notes as Exhibit 2. 

14You are now 39 years old.  At the time of the offence you were 33 years old.  At the time of your plea you were receiving assistance from Hanover House for accommodation.

15This assistance was put in place after your attendance at the Alfred Hospital.  Prior to that you were homeless and living out of your car and living rough.  At that time this impending court hearing was casting a large shadow over your life and prospects.

16You are the second child of six siblings.  Your mother had a history of impulsivity and was violent to her partners, to you and your other brothers and sisters.  You basically brought up your younger siblings in the absence of your mother's positive input.

17You completed Year 12.  After school you completed training in Disability Services, Phlembotomy, Medical Clerk Administration and Division II or Nurse Aid in the old language.  Between 1999 and 2003 you worked as a nurse aid until you injured your shoulder and back whilst lifting a patient.

18You did not stay on WorkCover payments.  You commenced work in the Werribee Plaza Medical Centre as a receptionist and medical administrator.  By 2004 you had moved back to Shepparton where your son from an earlier relationship lived with his father. Your son was 18 years old.

19By this time you had two further children, a girl, now 10 and a boy, now nine, from a subsequent relationship.  There was conflict between your former and then current partner.  You decided to move your younger children away from the conflict and you ultimately ended up in Werribee where this offence occurred in 2010.

20After you moved to Tasmania you worked as a nurse in 2011.  By 2012 you had moved to Queensland so your younger children could be near their father.  You were on Centrelink payments with parent support and were able to maintain a house for them to live in.

21Between 2013 and 2016 you moved back and forth from Queensland.  In 2013 you were in Mount Gambier prior to your record of interview with the police.  By early 2016 Queensland DHS removed your two younger children from your care due to your "mental health” issues.

22You lost Centrelink payments and then your ability to maintain a home and became homeless.  You travelled back to Victoria and turned yourself into the authorities on 30 March 2016.

23According to the Alfred Hospital notes you have been diagnosed as suffering post-traumatic stress disorder in 2009.  You have previously been prescribed Seroquel.  You do not have suicidal ideation.  You are currently residing in emergency accommodation provided by Hanover House.

SENTENCING CONSIDERATIONS

24In sentencing you I must have regard to a range of factors, such as the seriousness of your offences and your culpability for it, your personal circumstances and those of your victim.  I am required to balance those interests with the interests of the community in denouncing your criminal conduct and the interests of the community in seeking to ensure as far as reasonably possible, that you are, as an offender, are rehabilitated and reintegrated into society.

25I am mindful of the provision of the Sentencing Act and in particular s.5(4C), which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

26I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case and I have had you assessed for a community corrections order, and you have been assessed as being suitable for that disposition.

27As part of the governing principles to be considered in sentencing you, I must also take into account current sentencing practices.  That inquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at that time.

28I have considered the statistics on current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another.

29The learned Prosecutor submitted that your offending was to be properly dealt with by a term of imprisonment to satisfy the requirements of general and specific deterrence.  The Prosecutor handed up the Sentencing Snapshots No. 175 in support of her submission.

30Whilst statistics in isolation can be misleading it is interesting to note that for the year 2010 and 2011, that is the year of your offending, the sentencing statistics reveal that 50 per cent of offenders were imprisoned, 23 per cent of the offenders were placed on wholly suspended sentences, 4 per cent were placed on partially suspended sentences and 23 per cent were placed on community based orders.

31In effect half of them went to gaol and half of them were placed on community related or sentences in the community dispositions.  The Prosecutor properly conceded that the law allowed for a wholly suspended sentence in your case.  The Prosecution relied also on the recent decisions of the Court of Appeal in R v Martin (2015) VSCA 248 at paragraph 26. It says this:

"Arson is a very serious crime.  Ordinarily an offender convicted of arson can expect to receive a significant term of imprisonment.  General deterrence generally looms large as a sentencing consideration.  The present is not an ordinary case, however, and the appellant is far from a typical offender.  The offending in this case might be best described as ‘hopeless’. It was only ever going to hurt the appellant."

32Whilst the actions by you were motivated by revenge, this offending was in a setting where you were placed in a desperate situation by a recalcitrant landlord.  The police say you were always a person of interest.  There was no risk of any other person being injured or property damaged due to the condition and the location of premises at the time of your offending.

33Those two factors reduced the level of seriousness ordinarily seen in a case of arson motivated by revenge.  The Prosecutor also relied on the authority of
DPP v Bright (2006) VSCA 17. At paragraph 15 the court said this:

"Arson is a serious crime carrying with it a maximum penalty of 15 years' imprisonment.  President Winneke was to state in R v Mazur that “courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate”. The Director contended that there were no exceptional circumstances in this case. Mr Priest, for the respondent, correctly submitted that the observations made by Winneke, P. in Mazur must be read in the context that the Court was there seeking to discourage the use of an earlier decision of Perrone as a precedent for the notion that a fine was appropriate for a serious arson. The Court stated in Mazur that “in cases of arson a custodial sentence is not inevitable."

34It is clear from the authorities and the statistics that a custodial sentence for the crime of arson is not inevitable. 

35The admissions made by you in the record of interview were crucial to the successful prosecution of this case.  It is the clearest indication of remorse that can be demonstrated by someone in your position.

36You have cooperated fully with the police, both in the investigation and in finalising this matter.  You have pleaded guilty to this charge at the earliest time.  You are entitled to a discount in your sentencing disposition because of your plea.

37Your plea has the utilitarian value of allowing the effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending. 

38Your plea also allows for the preservation of police resources to deal with other matters. Your plea vindicates public confidence in the legal process set up to protect the community in which you live. 

39You have, by your plea, relieved your victim from giving evidence against you to facilitate some closure for him.  Your plea of guilty also indicates and demonstrates remorse on your part. Your plea is a clear acknowledgement by you that you accept the responsibility of your criminal behaviour on this occasion.  Your plea also recognises that you are prepared to facilitate the course of justice in the community.

40The fact of delay between the time of your offence and the time of your sentence is a very significant sentencing consideration here.  At the time of your offending a wholly suspended sentence was a sentencing option.  It is still available but current sentencing practices have changed since that time some five and a half years ago.

41The delay however does show that despite the fact that your life has spiralled downwards to the extent of homelessness and loss of custody of your children, you have not re-offended.  The community is better protected and general deterrence is properly addressed if you are given support to rehabilitate and do some unpaid community work as punishment.

42You have been assessed as suitable to perform a community corrections order.

WOULD YOU STAND PLEASE

43On Charge 1 you are convicted and ordered to serve a community corrections order for a period of two years commencing 1 August 2016.  That is today.

44The conditions of the community corrections order are as follows; that you perform 200 hours of unpaid community work.  The second condition is that you be assessed and undergo treatment and assessment, for mental health, and the third condition is that you are supervised by the Corrections office.

45You are to report at Moorabbin Community Corrections Service at 1140 Nepean Highway in Highett before 4 pm on 3 August 2016.  I order that a forensic sample is to be taken from you and I just want to explain to you what that is, Ms Sadkowski.  You will get a copy of this order.

46You have to attend at the St Kilda Police Station, I understand that being the closest police station to your premises, which I think is at 92 Chapel Street,
St Kilda, and to undergo a forensic sample.  What takes place is the police take from inside your mouth a swab of your saliva.

47If you do not comply with that then they are authorised to use reasonable force to obtain a forensic sample.  Do you understand that?

48OFFENDER:  Yes.

49HIS HONOUR:  I will have the community corrections order prepared and
 Mr Dean will come down and explain to you what it all means.  If you consent to it, sign it and you can go.

50OFFENDER:  Thank you.

51HIS HONOUR:  Is there anything else, Madam Prosecutor?

52MS MALOBABIC:  No, as Your Honour pleases.

53HIS HONOUR:  Because of the CCO I do not have to declare a s.6AAA?

54MS MALOBABIC:  No, that is right, Your Honour.

55HIS HONOUR:   I am just being told that you have got until the 3rd, two days to get there.

56OFFENDER:  Yes, okay, I had planned on going tomorrow anyway after my appointment.

57HIS HONOUR:  That is a good idea.  It is the first step of getting control of your life.

58OFFENDER:  Yes.

59HIS HONOUR:  I should say back in control of your life.

60OFFENDER:  Definitely.

61HIS HONOUR:  You are free to step out of there.  Thank you.

62OFFENDER:  Thank you.

63HIS HONOUR:  Nothing further?

64MR DEAN:  No, Your Honour.

65MS MALOBABIC:  No, Your Honour.

66HIS HONOUR:  Thank you both for your assistance in this matter.  Good luck with your rehabilitation, Ms Sadkowski.

‑ ‑ ‑