Director of Public Prosecutions v Saxton
[2014] VCC 1596
•23 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL DIVISION
Case No. CR-13-00307
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SAXTON |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Bairnsdale | |
DATE OF HEARING: | 22 September 2014 | |
DATE OF SENTENCE: | 23 September 2014 | |
CASE MAY BE CITED AS: | DPP v Saxton | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1596 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Arson – Guilty plea – Not serious example of offence – Post-traumatic stress disorder – chronic back pain
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Adjourned undertaking for a period of 2 years with the condition that Mr Saxton seek psychological or psychiatric treatment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Foot | OPP |
| For the Accused | Mr J. Fitzgerald | Engel and Partners |
HER HONOUR:
1 James Saxton, you have pleaded guilty to a charge of arson, an offence with a maximum penalty of 15 years’ imprisonment.
2 The prosecutor read out an agreed summary of your offending[1], and I sentence you on the basis of that summary.
[1] Exhibit A
3 In brief, on 30 September, 2013, you set a number of fires on property belonging to your neighbour and belonging to the Crown, being the Mitchell River National Park. Your property, that part of your neighbour’s property, and the National Park were, and are, natural bushland. You set these fires as a burn off of the ground level fuel load. Apparently requests to your neighbour and to the Department of Sustainability and Environment to conduct controlled burns on their properties did not produce any action on their part. As your only access in and out of your property was over your neighbour’s land, and the National Park abutted your property, you were concerned about the fuel load, and wished to avoid the consequences that may arise if a bushfire came through in summer.
4 Your crime lies in the fact that the property you set fire to did not belong to you. However, it is accepted by the prosecution that your setting of fires was part of a genuine attempt to burn off, and is therefore not a serious example of an arson offence.
5 I am satisfied that you acted for that reason. I accept, as your counsel put it, that you lit the fires with an eye to the weather and the topography, and that there is no evidence that the largest fire was out of control. You told police in your interview that the wind was likely to blow the fire back towards your access road, and if it went further than that, it would reach steep, damp gullies and burn itself out, and also that rain was forecast for that evening which would also have put the fires out. In your youth, you had been a member of the CFA although it is now some years since you received that training.
6 You also told police that you had been burning off like this on your property for years. It seems likely that on 30 September last year, had your neighbour not come home and spotted the smoke, and called the CFA, of which he was a member, the fires would have burnt out like others had done in the past. As it happened, three fire units arrived and the fires, the largest of which covered a number of hectares, were put out.
7 I do not for a minute undervalue the seriousness of setting fires in the bush. Baldly stated like that, it can be seen how dangerous such conduct could be. However, while your fire setting was deliberate in that you intended to burn bush – thereby damaging property of others - I find that it was done without intention to harm people, property of value, livestock or wildlife. Unfortunately, it was also done without permission of the property owners. Consistent with your purpose, you remained present when the CFA units arrived and spoke to the Captain.
8 The property affected by the fires was native flora, and the damage is not quantifiable. This was not a situation where fire damaged crops or livestock or timber plantations or fences; such fences as can be seen in photographs supplied to me[2] were burnt when the last major fire went through some 50 years ago.
[2] Exhibit B and Exhibit 5
9 The prosecution concede, and I accept, that this is a low level offence of arson, and that the consequences for you, together with your background, make it highly unlikely that you will offend again, and certainly not by committing arson.
10 The consequences for you are firstly, that you spent two nights in custody before being released on bail. For a man with no criminal history, that would have been tough. For a man with no criminal history who also has physical and mental health challenges, this must have been extremely difficult.
11 Next, your bail conditions required you to live in Bairnsdale, where you stayed with your mother. This meant leaving the peaceful bush home you had been living in for a dozen years. While there were some benefits to living in town, including less isolation and more family contact and professional support for you, the bush lifestyle suited you and you miss it greatly. You have recently sold the property and plan to buy closer to, if not in, town.
12 As to your background, that can be simply but powerfully stated. You are a man of 64 years with no criminal history; you were conscripted to fight for your country; you came back from the Vietnam war after being in a coma from heat stroke building barracks at Nui Dat, with high alcohol and cannabis use, and the multitude of symptoms of post-traumatic stress disorder; nevertheless, you went on to complete an apprenticeship as a bricklayer, working in that trade for many years including after lengthy rehabilitation following a lower leg amputation due to a motorcycle accident; then re-trained to make and sell utilitarian ceramic pottery; you suffer from chronic back pain and phantom pain from the amputation[3]; and you, amongst all of this, raised a family who love and support you[4].
[3] Exhibit 3 – medical material
[4] A number of family members were in court, and Exhibit 6 contains personal references from his doctor and family members.
13 In fact, your post-traumatic stress disorder (PTSD) was not diagnosed until nearly 30 years after the events which caused it, and as a result, much of your adult life has been lived while struggling to cope with the myriad symptoms besetting you. Ultimately, a brother of yours put you in touch with a President of the local RSL and, finally, you were properly diagnosed and since 1999 have received a Veterans’ Affairs pension. As a consequence, you have received counselling from a number of psychologists, and have learned some strategies to cope with your PTSD, but it remains with you. This is one of the main reasons why the tranquil nature of your bush home appealed to you.
14 Apart from your background, personal circumstances and good character, I also take into account in your favour that you pleaded guilty to this offence at the earliest opportunity. Not only has this saved the community the time and cost of a trial, but it is also an indication that you are remorseful for what you did. Further, in the main part of your interview with police, you were candid about the whole event.
15 Usually, in a case involving arson, one of the most important purposes of a sentence passed by a court is to deter others from committing such an offence and provide protection to the community. In your case however, the unusual factors relating to your offence, where there are no comparable cases, and to your personal circumstances, are such that this general purpose is of less importance. In other words, the sentence I impose today should not be regarded as a benchmark for more serious cases of arson.
16 I am satisfied that you will not re-offend, and so one of the other purposes often required of a sentence passed by a court, to deter the particular offender from re-offending, does not apply in your case.
17 Your counsel submitted that I should consider placing you on a Community Correction Order. The prosecution conceded that such a non-custodial disposition was open to the court in the particular circumstances of your case.
18 I announced yesterday that I agreed that the court did have alternatives to a sentence of imprisonment, and so you were assessed for a Community Correction Order, found to be suitable by the assessing officer, and certain recommendations were made for conditions that might be placed on you as part of that order. These included drug and alcohol assessment and treatment, and assessment and treatment by a psychologist. No community work was recommended because of your physical limitations, predominantly your chronic back pain.
19 I was told by your counsel that you no longer use cannabis, and you have reduced your drinking to one glass of wine a few times a week. You have recently seen Ms Parente, a psychologist who has provided a report[5], who suggested you be referred to a psychiatrist for some of the issues she found in your sessions together.
[5] Exhibit 2
20 I have carefully considered your case and the appropriate disposition. I have decided that in the unusual circumstances of your case that I will convict you, but instead of releasing you on a Community Correction Order, I will release you on what used to be known as a good behaviour bond. It is now called an adjournment for a period of two years, and there will be three conditions. The first is that you must be of good behaviour during that period, that is, do not commit another offence and that should cause you no problem. The second is that you seek further assistance either through the Vietnam Veterans’ Association or Ms Parente for psychological treatment, or if found appropriate, psychiatric treatment. The third condition is that you return to court if required to do so in that two year period, although I can tell you that you will only be required to do so if you commit another criminal offence, which I have found is unlikely. Otherwise, in two years’ time, you do not need to return to court, but the matter will be finalised.
21 So the three conditions are: to be of good behaviour, to seek further assistance either through the Vietnam Veterans Association or Ms Parente for psychological treatment or if found appropriate, psychiatric treatment and the third, to return to court if required to do so. Do you consent to these conditions, Mr Saxton?
22 OFFENDER: Yes.
23 HER HONOUR: The reasons why I have decided to deal with your case in this way includes that it is not a suitable case to seek to deter others from committing arson, there is no need to deter you, it is very low level offending for which you have already served two days in custody, you have already addressed many of the factors that might otherwise be re-visited in a Community Correction Order, but most of all because, until 30 September last year, you had lived your life in such a way as to build up substantial credit, which at the age of 64, you are entitled to draw upon.
24
Therefore, you are convicted and released on an adjournment for two years on condition that you be of good behaviour during that period; that you seek further assistance either through the Vietnam Veterans’ Association or
Ms Parente for psychological treatment, or if found appropriate, psychiatric treatment; and that you return to court if required to do so. In a moment there will be a form for you to sign that you agree to this adjournment and I will then sign it as well.
25 Just coming to the application for a forensic sample order, in all the circumstances which I have just outlined, I do not consider that it is in the interests of justice that you be ordered to provide a forensic sample, even though you consented to do so, and so that application is refused.
26 For completeness, in the highly unlikely event that this matter is re-visited, I note that you have served two days in custody for this offence. Yes, I will have my Associate now bring the form to you to sign, Mr Saxton.
27 (Order signed.)
28
All right, I have signed that. We will have a copy of that made for you before you go and also for your instructor, Mr Fitzgerald. Thank you,
Mr Saxton and I expect, as Mr Fitzgerald says, you will not darken the door of the court again unless you are coming to jury service perhaps. So I wish you well. Can I thank counsel for their assistance in this matter.
29 MS FOOT: Thank you, Your Honour.
30 MR FITZGERALD: Thank you, Your Honour.
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