Director of Public Prosecutions v Saxe

[2014] VCC 605

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.  CR-13-01980

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES SAXE

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2014
DATE OF SENTENCE:	30 April 2014
CASE MAY BE CITED AS:	DPP v Saxe
MEDIUM NEUTRAL CITATION:	[2014] VCC 605

REASONS FOR SENTENCE
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Subject:  
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Legislation Cited:     
Cases Cited:            
Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr E. Thompson	O.P.P.
For the Accused	Mr G. Barnes	Marich Legal Pty Ltd

HIS HONOUR:

1 James Frederick Saxe, you have pleaded guilty to four charges of intentionally causing a bushfire contrary to s.201A of the Crimes Act 1958 and one charge of recklessly causing a bushfire contrary to s.201A of the Crimes Act 1958.

2       The maximum penalty for these offences is 15 years' imprisonment. 

3 By operation of Part 2A of the Sentencing Act 1991 you are to be sentenced as a serious offender in respect of charges 2, 3, 4 and 5 on the Indictment. Accordingly, I must regard the protection of the community as the paramount purpose for which this sentence is to be imposed. However, the prosecution did not submit that I should impose a disproportionate sentence to achieve that purpose and I have not done so.

4       This matter was to proceed as a complex criminal trial in the sittings here in Sale this month, but at a directions hearing on 11 April 2014 you pleaded guilty to the charges before the court.  Your plea has spared the community the cost of a lengthy and complex criminal trial and I have taken your plea into account in your favour in mitigation of sentence. 

5       You have admitted a prior conviction at the Mackay Magistrates' Court in Queensland in 1998 for obtaining a benefit not payable to you.  On that occasion you were sentenced to nine months' imprisonment and to be released upon having served three months. 

6       A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows: 

7       On 21 March 2006 you deliberately lit a fire in bush in Geoghegans Road, Coongulla.  You told DSE staff that you had seen smoke in the area and accompanied them to the scene of the fire.  The fire occupied about 50 square feet of bush but it had not spread and extinguished itself. 

8       On 28 January 2009 you lit two fires in bush in the area of Millers Road, Coongulla.  These fires were successfully extinguished by the CFA and did not cause any damage to persons or property. 

9       On 1 February 2011 you lit a fire in bush in Ostbergs Road, Coongulla.  That fire burnt an area measuring 72.5 metres by 28.5 metres and caused damage to fencing and vegetation. 

10      On 8 December 2012 whilst on bail for the offences of intentionally causing a bushfire, you threw a lit cigarette from a vehicle in Ryans Road, Coongulla.  In all probability the cigarette also contained a match head.  The cigarette caused a fire that burnt approximately one half an acre of grassland before it was subsequently extinguished by CFA and DSE crews. 

11      On 9 December 2012 you were arrested, charged and remanded in custody.  With the exception of the offence on 8 December 2012 your offending occurred while you were a member of the CFA.  You lit fires on days of very high or extreme fire danger.  Your offending exposed the community and holiday makers at Coongulla to serious risks to themselves and their property. 

12      You have exhibited absolutely no remorse for your offending and despite your plea of guilty to the charges before the court you continued to deny having lit the fires in question.  In my opinion your offending is of the utmost seriousness and you have little or no insight into what you have done. 

13      The sentence that I impose must be calculated to deter you and others from offending in this serious way. 

14      You lied to police during interviews conducted with them and it would also appear that you provided inaccurate information to a psychologist who examined you and gave evidence before me. 

15      In my opinion, any assessment of your prospects of rehabilitation must be very cautious. 

16      I have received in evidence four victim impact statements detailing the effect that your offending has had on the Department of Primary Industry, the local CFA and two private land holders.  I accept that your offending had a significant impact on those organisations and persons. 

17      You must be punished for what you have done and plainly the community must be protected from you and as I have already observed you committed charge 5 on the indictment whilst you were on bail for other offences. 

18      You were born on 8 May 1936 and you will soon turn 78.  You are in poor health and suffering from alcohol dependency and a psychological disorder, post‑traumatic stress disorder, which may be the result of trauma you experienced while a serving member of the Victoria Police between 1956 and 1971. 

19      You were also a member of the Citizens Military Force during the Vietnam War and went to that country for a very short period of time in the signals directorate.  You held a variety of occupations until your retirement on a pension at the age of 60. 

20      You have two adult children.  Your wife died after you nursed her through a long illness in 2003. 

21      I have received in evidence a psychological report of Mr Jeremy Parker and he was called during the hearing of the plea in mitigation.  As I have said, I accept that you suffer from post‑traumatic stress disorder and you also suffer from depression.  Mr Parker did not state that there was a link between your psychological condition and your offending and you continued to deny your offending to him during his interview with you. 

22      I am not able to accurately conclude why you offended on the occasions that you did, but it would appear that you suffer from very poor self‑esteem which has been compounded by years of alcohol abuse. 

23      I also accept that imprisonment will cause a deterioration in your condition and that your condition together with your relatively elderly years will result in a greater degree of hardship for you than would otherwise be the case. 

24      In the result, the sentence of the court is as follows: 

25      On charge 1, the charge of intentionally causing a bushfire, you are convicted and sentenced to be imprisoned for 15 months; on charge 2, the charge of intentionally causing a bushfire, you are convicted and sentenced to be imprisoned for two years; on charge 3, the charge of intentionally causing a bushfire, you are convicted and sentenced to be imprisoned for two years; on charge 4, the charge of intentionally causing a bushfire, you are convicted and sentenced to be imprisoned for two years and three months; on charge 5, the charge of recklessly causing a bushfire, you are convicted and sentenced to be imprisoned for two years.  I order that charge 4 is the base sentence and I further order that three months of the sentence on charge 1, six months of the sentence on charge 2, six months of the sentence on charge 3 and three months of the sentence on charge 5 be served cumulatively on each other and cumulatively on the sentence imposed on charge 4. 

26      This makes for a total effective term of imprisonment of three years and nine months.

27      I order that you serve 16 months' imprisonment before becoming eligible for release on parole. 

28      I declare that you have served 489 days by way of pre‑sentence detention not including today. 

29      But for your plea of guilty I would have imposed upon you a total effective term of imprisonment of five years and ordered that you serve two years and three months before becoming eligible for release upon parole. 

30      I have made the ancillary orders sought on behalf of the prosecution. 

31      COUNSEL:  If Your Honour pleases.

32      HIS HONOUR:  You will have to go into custody now Mr Saxe and the Parole Board will consider whether or not you are to be released upon parole. 

33      Thank you. 

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