Director of Public Prosecutions v Senior (a pseudonym)

[2020] VCC 1380

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL SENIOR (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 September 2020
CASE MAY BE CITED AS:	DPP v Senior (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1380

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr S. Norton

HIS HONOUR:

1Russell Senior[1], you have pleaded guilty to one contravention of an order to which you have been made subject pursuant to s.57(1) of the Family Violence Protection Act [2008] knowing your conduct would probably cause apprehension or fear in the protected person in one Danielle Barber[2], calling her on 15 March 2018 and threatening to kill her. You also pleaded guilty to arson on 26 July 2018. 

[1] A pseudonym.

[2] A pseudonym.

2The circumstances of the offence were outlined by the learned prosecutor in his summary of prosecution opening document which was exhibited and to which I will briefly refer for purposes of the sentence. 

3You are 38 years of age and in 2018, you lived in Diggers Rest at an address owned by your sister, although she did not live there. You had been in a relationship with Danielle Barber and had a five month old child. 

4In March of 2018, an order was made prohibiting you from committing family violence against her and your son. The orders terms were explained to you at the Magistrates' Court when it was made. 

5On 26 July, Barber came to your address with your son. You were depressed from the breakdown in the relationship and your own financial difficulties.  You became frustrated with the child at one point in the presence of Danielle, so much so that she was fearful for his safety. 

6A little later she threw some tablets in a bottle which hit you and this further aggravated you. You became aggressive and threw the bottle at her while she was holding the child.  Ms Barber left the premises telling you she was going for a walk but instead she went to the Diggers Rest station and caught a train. 

7About an hour later, you rang her and when she told you she had gone home, you became enraged. You told her over the phone you were going to come to her house and blow her and her family up. This was the factual basis of Charge 1. 

8You kept calling her and in other conversations, you said you would burn the house down and that you had already poured turpentine all over the floor and that she was next, and that you had already destroyed all your son's toys at the house.

9Your father arrived and tried to talk to you and prevent you from going further with these threats but you kept him at bay and told him you were going to burn the house down with you in it.  At the time you had a four litre tin of thinner in your hand.

10At about 7.30 while your father was inside the home trying to calm you again, you again stated that you were burn the house down.  You began to throw thinner over the couch and lounge room floor.  As you did so, you split some of the liquid on to a gas heater which was located in the lounge room.  This caused an explosion and the liquid which you had previously tipped out on to the floor, caught alight.  You and your father escaped the premises without injury and both tried to put out the fire without success. 

11Your father called 000 and the CFA attended and put out the fire but not before the house was destroyed.  Its value stood at more than $200,000.  The property next door received damage to the value of approximately $50,000. 

12The police arrested you outside the home and you were taken to Melton Police Station.  Before being interviewed, you needed time to rest, but when you were interviewed, you made no comment.  You were remanded in custody and bailed after 176 days detention.

13Contravention of the order of March 2018 carries a maximum of five years' imprisonment and arson has a maximum of 15 years' imprisonment. These penalties are a good starting point and provide a general yardstick for the court. 

14However, it is also true to state that both offences can be committed within a wide and varied spectrum of circumstances. The objective gravity of your offending is ascertained by looking and assessing the particular circumstances which led to the offences and details of the offences themselves.

15You should understand, without doubt, that the community is rightly very concerned and aggrieved by domestic violence.  It is a blight on our community and the community looks to the court to deter actively those who use their own lack of control, anger and pride to hurt, threaten and instil fear on those they supposedly love and care for, who, for the most part, are vulnerable women and in some cases like this, other family members including children. Such behaviour generally must be met with stern and just punishment. 

16You are fortunate that your vile threats of harm did not cause further injury or damage to your son and his mother.  Arson is a very serious offence.  In the circumstances of this case, you allowed your rage and anger to get the better of you in a situation in which you recklessly used an accelerant which you well knew and believed would probably result in damage or destruction to property.  It is important in your case, as the learned prosecutor made clear very fairly during the course of the plea, that two factors need to be recognised. 

17The first is that this was not a case in which you burnt down a property either to damage it intentionally or to prevent or deny another its' enjoyment or ownership, and that having properly classified and understood the modus in which the fire started in a seemingly accidental way which nevertheless carries the inference of intention, and secondly, that your intention at the time was to hurt yourself by fire, even endangering your own father; intent which should be also noted you put into effect, not by arming yourself with an accelerant fuel but because your work made it available to you through a thinner which you already had available to you. 

18The circumstances significantly reduce in my view the gravity of the offending and your moral culpability. You have, by your plea, accepted responsibility legally and I accept you are remorseful for your actions. 

19Your plea was made at a relatively late stage and could have been forthcoming earlier, but it is also fair to say that the delay which occurred between committal and trial listing and final directions hearing, which was over a year due to court commitments, was not due to your own fault. 

20Although you could have offered it in that hiatus, the plea was made and entered soon after the final direction hearing, and the full benefit will need to be reduced by that lateness of the plea.  The delay, however, has another aspect relevant to the sentence in that it has provided you with an opportunity for rehabilitation which I will deal with in a moment.

21Your plea carries a utilitarian value of having avoided a criminal trial. Also in our current environment of pandemic your plea has an added value at a time when restrictions in place have added burdens on the criminal justice system and correctional services. Your plea will reduce your sentence. 

22Your conduct created fear and no doubt much trauma.  Although Ms Barber knew of her right to make a victim impact statement, she declined to do so.  Although your relationship is at an end, it is now cordial, a fact which you have accepted and you are now endeavouring to act civilly and with dignity towards her for the sake of your son and a proper and respectful connection.  

23You are a person who comes before the court aged 38 years of age without prior convictions.  As I mentioned earlier, you have followed a positive path of reclamation since your remand. 

24While in custody in November of 2018, Ian McKinnon, a consultant psychologist, made an assessment of you. In January 2019, you commenced the Court Integrated Services Program and in March of 2019, you commenced attendance at a Men's Behaviour Change program which concluded in May 2019.

25In November 2019, you participated in a parenting program and in June of this year, an assessment was made by Professor Andrew Carroll, a consultant psychiatrist. I will refer to some of these reports briefly in a moment.

26Before doing that, I will briefly describe your personal circumstances and background which I take into account. You grew up in Deer Park where your parents still live. You have a good relationship with both of them. 

27In 2018, your father had lung cancer treatment which caused you some distress, particularly after a good friend also suffered a medical crisis. You have known Danielle Barber for 12 years and were romantically involved since 2015.  As I have said, you share a son. 

28You completed Year 12 but you were not academically inclined. You began part time work in the auto industry while at school and thereafter with General Auto and Autobarn after which you opened your own Auto Performance workshop in Dandenong which unfortunately failed after two years.

29Aged 23, you went into partnership with a franchise Autobarn outlet until you sold out of your share of the business. You then worked as a mechanic in various jobs and this work history is creditable work history for you.

30Relationships have clearly been your Achilles heel. The breakdown of relationships have driven you to extreme and irrational behaviour in the past, including self-harm and police and medical intervention.  In your early 20s, you tried speed and then later ice. The last few years you have indulged your ice use on and off.

31Since your remand, you have engaged in physical fitness and training, gaining weight and working in the metals section of the prison industry when you were in prison, completing the various vocational programs. 

32Mr McKinnon found longstanding symptoms of ADHD persistent and you have persisted, and you have struggled with generalised anxiety and depression, low esteem and emotional difficulties manifesting in poor financial and organisational skills as well as inter-personal conflict.  You have struggled with rejection and fear or abandonment, although it was said you do not have an inherently anti-social or criminal disposition. 

33Although at the time of diagnosis you did not meet criteria for a full-blown post-traumatic stress disorder, Mr McKinnon opines you were suffering from symptoms which met the clinical criteria for it at the time of the offending.  It appears you reported to him some entanglement with criminals which involved the loss of money and a car, and this background is troubling.

34In this complex and stressing period, you were overwhelmed and lacked the ability to manage it in a confident manner.  You appeared remorseful and were keen to commence psychological therapy. It is clear that the support and assistance provided to you on the Integrated Services Program period was very successful and well received. 

35The two reports which were tendered to the court demonstrate this value.  You were released to reside with your sister, the owner of the house which you destroyed.

36A mental health plan was taken up, supervision and drug assessment also proceeded as well as an anger management program and behaviour change program. The program leaders reported that you engaged thoughtfully and sincerely in the sessions. You had returned to the job you had prior to your remand and are confident of this being available to you long term. 

37I viewed a number of certificates attesting to these programs, completion as well as a comprehensive letter from Nusrat Sharmin, a clinical psychologist, dated 18 August 2020. You reported, 'Enjoying time with your son and with your ex-partner.'  However, there are still unresolved issues of impulsivity and anger which need longer term work. 

38I also received and read a number of personal references which attest to the recent but significant change. They all attest to your remorse, your progress since the events of 2018, and your endeavours to change and rehabilitate yourself as well as their ongoing support for you.

39Last, but not least, I received a report from Professor Carroll dated 7 July 2020.  Professor Carroll is a very experienced psychiatrist and his very helpful and candid report focused on your insightful progress of late. 

40He is of the view that there is no evidence currently of post-traumatic stress disorder, hypermania or psychosis.  You have contact with your son and with your ex-partner.  You have clear indications of your motivation to change, and demonstrated a sense of regret, remorse, and responsibility which he noted.  He provided a detailed personal and developmental history which I will not repeat.  You explained your involvement with an episode of extortion which I mentioned earlier which caused financial and emotional instability leading to difficulties in the relationship. 

41Professor Carroll commented that you appear to have availed yourself of all appropriate psycho-social supports in prison and on bail, and have shown, 'remarkable progress' in terms of your rehabilitation trajectory including not relapsing into drug use.  There is no active mental disorder.  He notes the offence appears impulsive, rather than premeditated, with a background of fragile temperament and acute methamphetamine withdrawal.  

42Provided that you avoid substance use in the future, your prognosis is excellent in terms of your mental health. You would benefit from ongoing  support from a treating psychologist and counselling support. He finds that you are in a very low category in terms of ongoing risk needs and future reoffending. 

43I have taken all of these matters into account and consider that as was indeed conceded by the prosecution, that the most appropriate disposition in this case is a combination sentence.  I will impose a term of imprisonment which will have been satisfied by the time already served, and that will be followed by a community corrections order for 12 months with conditions designed to continue your rehabilitation by way of supervision, mental health and programs to reduce reoffending. 

44This sentence is designed to enable you to continue to improve your outlook and strengthen your resolve to better react in stressful situations. It must be imposed with your consent which I understand you have given.

45You will report to the Sunshine Office of Corrections and you will cooperate with Correctional Services thereafter, attending all appointments, whether by video, phone or in person. You will be assessed by Forensic Intervention Services as to the offence-specific programs and Corrections will supervise your ongoing treatment by the psychologist, Nusrat Sharmin. 

46You will not commit further offences during this period.  You should understand, Mr Senior, that is you breach this order, or you contravene any of its conditions, you will be brought back before me and I have the power to impose a penalty for that breach which includes imprisonment, and can resentence you on these offences, this time, in all probability, to a term of imprisonment.  Do you understand?

47OFFENDER:  Yes, Your Honour.

48HIS HONOUR:  It is important that you obey the lawful directions of the Correctional authorities and that you do not offend again.  The order will be perhaps electronically sent to you, Mr Norton. 

49If that is able to be done and you can arrange for Mr Senior to sign the order and have it back into my associate who will then pass it to Corrections, and the details of where Mr Senior is to attend and the period within which he is to attend will be formalised through that document.

50MR NORTON:  As Your Honour pleases.

51HIS HONOUR:  Perhaps you can go through it with him at some appropriate point and express to Mr Senior again the importance of simply remaining in contact with - especially during this period - being available by phone and remaining in contact with Corrections in the future which irrespective of what is happening to him, whether by work or relationships or accommodation or other problems, that he knows to keep in contact with them, so that is to allow supervision to take place. 

52MR NORTON:  Yes, Your Honour.

53HIS HONOUR:  Thank you.  Mr Cordy, there were not any other ancillary orders, were there?  Was there anything in relation to compensation or any other ancillary matters?

54MR CORDY:  Your Honour you are intending to impose a sentence of imprisonment of 176 days, and declare pre-sentence detention of 176 days? 

55HIS HONOUR:  Yes, I am sorry, I omitted to do that and I omitted to declare the s.6AAA but yes, if I have not already made it clear.

56I declare that Mr Senior has served 176 days by way of pre-sentence detention and that the sentence of the court is that he be sentenced to 176 days plus the 12 month community corrections order. 

57I will have that, the number of pre-sentence detention days noted in the records of the court, and but for his plea, I would have sentenced him to 12 months' imprisonment. 

58MR CORDY:  As Your Honour pleases.  Then I take it that that is effectively an aggregate sentence on both offences, Your Honour.

59HIS HONOUR:  That is correct.

60MR CORDY:  Yes, thank you.  They are the only matters, sir.

61HIS HONOUR:  Thank you.  Thanks gentlemen. 

62MR NORTON:  As Your Honour pleases.

63HIS HONOUR:  Mr Cordy, are you actually sitting in the court, or are you just there for convenience?

64MR CORDY:  I am just here for convenience, Your Honour.  WebEx does not work in the wilds where I live, but it works here. 

65HIS HONOUR:  Well, I think that it may be an advantage. In any event, thank you for making the effort to come down to the court. All right, thank you gentlemen.  Sine die.

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