Director of Public Prosecutions v Sheldon

[2017] VCC 1793

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01516

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW SHELDON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2017
DATE OF SENTENCE:	29 November 2017
CASE MAY BE CITED AS:	DPP v Sheldon
MEDIUM NEUTRAL CITATION:	[2017] VCC 1793

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. McGuire
For the Accused	Mr S. Moglia

186794  Pages 1 - 16

 

 

HER HONOUR: 

1Yes, Mr Sheldon, you can remain seated until I tell you to stand.

2Matthew Christian Sheldon, you have pleaded guilty before me to 11 charges of arson.  The offending occurred between 2 and 19 February 2016 where a series of fires burned in the Ashwood, Holmesglen and Chadstone area, many of them in the Holmesglen reserve which is located off Power Avenue Ashwood, a street where you lived in a unit at the time and indeed well where you still reside. 

3Your co‑accused, Lee Lester was homeless at the time and residing with a friend Ashleigh Haenga who lived at Unit 2/27 Power Avenue, one of the set of units at which you also reside at that address. 

4The prosecution case which is pleaded to on a guilty basis by you is that the fires were deliberately lit by you and Lee Lester acting together, pursuant to an agreement, arrangement or understanding to commit the offences.  The first fire took place on 2 February 2016 at the rear of the reserve car park, burning a small area of scrub and undergrowth.  The second fire occurred earlier that day, 150 metres east on the north side of the reserve, again burning a small area of scrub which was able to be contained to a small area. 

5The third fire occurred the next day at 2.45 am, 20 metres into the main reserve car park on the west side of a driveway leading into a car park, again, burning a small area of scrub.  Metropolitan Fire Brigade attended all three of these fires and extinguished them.

6Police attending the area in relation to the fires went to the front of 27 Power Street and you walked out from those premises to speak to them, holding a can of beer and sweating from the brow.  You gave them your name, date of birth and address and told them you'd seen two men walking away from the fires across Power Avenue to the south, saying that each of them were about six foot tall but giving no other description.  It was clearly the case that this information was false. 

7The three separate fires that I have described underlie Charge 1 on the indictment.  Charge 2 relates to three separate fires which occurred between 3 and 4 February 2016.  The first occurred on the morning of 3 February at the west end of the entry to the reserve car park off Power Avenue, there being two separate seats of the fire. 

8The next fire occurred at 1 am on 4 February, which was east from the earlier fire along the Gardiners Creek trail within the reserve, burning an area of five by five metres.  The third fire occurred at 1.48 am on 4 February, also on the Gardiners Creek trail which burned undergrowth at the side of the walking track of an area of about 20 by 10 metres.  Accelerant was smelt at the scene. 

9Police attended at the scene of the first fire on 3 February and later spoke to you, you being outside your unit having a cigarette and telling police you had seen a man run out of the reserve after the Melbourne Metropolitan Fire Brigade arrived, giving a description which was demonstrably false.

10Charge 3 relates to a fire lit on 5 February 2016 in a small park between Elliot and Power Avenues which was lit in scrubbed area, was close to residential premises and directly opposite your home.  Again, this was attended by the Metropolitan Fire Brigade.  Charge 4 relates to a fire lit on 7 February 2016 on the Gardiners Creek trail near playing fields.  It was detected at night and where scrub and undergrowth were burned and the Metropolitan Fire Brigade attended and extinguished the fire.

11Charge 5 relates to a fire lit on 10 February 2016 at the western end of the reserve near a bicycle path which was reported in the evening and ignited scrub and bushland burning out an area of about 10 by 10 metres and again, was extinguished by the Metropolitan Fire Brigade.  Police performing covert observations saw four people running from the reserve into Power Avenue, the prosecution case being that they were you, Lee Lester, Ashleigh Haenga and her then partner Amber Holland

12Charge 6 relates to fires lit on 11 February 2016, just after a walking path on the southern side of railway tracks parallel to the railway line and pedestrian crossing in Chadstone occurring in the morning, three fires being lit in sequence, this area in scrub and grass land backing directly on to residential houses.  That fire reaching within five metres of the houses.  Again, the Metropolitan Fire Brigade attended and put the fires out. 

13Charge 7 relates to a fire lit on 12 February 2016 in the same area as the day before in undergrowth near the walking path on the southern side of the railway tracks which was noticed at 8.50 but extinguished by the person who found it. 

14Charge 8 relates to fires lit on 13 February 2016 in scrub area next to the railway line at the western end of a walking track, the first being a small fire noticed by police at 2.30 am, those police performing covert duties at the scene of which yellow paint was found on a tree and a scrub.

15You, Lester, Haenga and Holland were seen in the immediate vicinity of the fire which was extinguished by the Metropolitan Fire Brigade.  The second fire was on the northern side of the railway overpass near the corner of Power Avenue and Paringa Court less than 500 metres from the first fire, noticed about an hour after the 2.30 am fire.  Yellow graffiti was seen on the wall of the concrete overpass next to the seat of the fire and Smirnoff vodka and double black alcohol bottles were located at the scene.  It is the prosecution case that the bottles were left there by the four of you.  Again the Metropolitan Fire Brigade attended and extinguished the fire.

16On that day a forensic scientist who attended the scene of the first fire located and identified white resinous material within the seat of the fire that were tested and found to be a medium petroleum distillate such as kerosene, similar to flammable liquid commonly used in fire fighters.  It was the forensic officer's opinion that the fire was started by using vegetarian and leaf litter and firelighters.

17Earlier in that evening police had noticed you and Lester, together with Holland and Haenga walking in the Warragul Road area, one of the women being seen spraying graffiti on a timber fence in Warragul Road.  Police spoke to the four of you, Lester later giving a false name.  After leaving police, the four of you were seen walking into the Ashwood reserve and other police observations were made in relation to the four of you in the following hour or so.

18Charge 9 relates to fires lit on 15 February 2016, they being two fires seen within approximately an hour of each other, firstly near the rear car park of the reserve towards the railway line and within the reserve near the walking track at the west end of the car park.  The second fire was the larger, eventually spreading to 30 to 40 square metres before the Metropolitan Fire Brigade attended and extinguished it. 

19A female witness was walking along the walking track at the time and saw flames in a bush nearby and two men near the flames, one to two metres from them and moving from the scene to nearby bushes.  Then there was only one man near the flames, that being you.  She had a conversation with you, in the course of which you claimed you were in the area looking for your wedding ring, although she saw that at the time you in fact had a wedding ring on your finger.  She began to take photos and a video of you as you walked away from the scene of the fire, followed you and then saw Lee Lester emerge from the bushes, join up with you and the two of you quickly walking away.

20Charge 10 relates to a fire lit on 17 February 2016 at the south‑east end of a walking track near Warragul Road which was seen about 10 pm, covered an area of about two by two metres and a rolled up newspaper being located at the scene and used as an ignition point.  Again the Metropolitan Fire Brigade attended and extinguished the fire.  The last fire was lit on 19 February 2016 underlying Charge 11 adjacent to a railway line behind 3 Myora Court Ashwood and noted about 3.20 am.  It consisted of two separate seats of fire, accelerant was smelt at the scene and fabric stuffing was used to assist spread of the fire.  That fabric being stuffed in various locations in the scrub. 

21Yellow paint was seen on shrubs at the scene of the fire and the police canine unit attended the scene.  That unit tracked a scent from the fire to Elliott Street across the railway tracks to the units at 27 Power Street where the scent was lost outside this address which is where you, Lester and Haenga lived.  White fabric stuffing similar to that used in the fire was later located in Lee Lester's car. 

22Later on 19 February two search warrants were executed at the units where you and Haenga, Lester and Holland lived.  Haenga and Holland were arrested and provided statements implicating the two of you in the fires, as at the time of the warrants being executed, neither you nor Lester were home.  The two of you were loaded in a car to the premises while police were still present and you were both arrested. 

23A search of your car revealed an insect repellent canister wrapped in plastic.  On 22 February police re‑attended 27 Power Avenue and went to the car park there where a car belonging to Lee Lester was searched.  A blue backpack being located in it, containing a bottle of mineral turpentine and the white fabric stuffing similar to that located at the scene of the fire on 19 February.

24You were interviewed on 19 February, admitting that you were being present when some of the fires were lit, saying this made you just as guilty as lighting them and of course you're right about that.  You said that you tried to start one fire, but the ground was too wet and the fire never took off.  You again, attempted to give a false description of another person running from the fire scenes.  You said that on one issue an unknown arsonist had sprayed your shoe with accelerant which caught fire.  You admitted to being present when the February 3 fire was lit and then said Lee Lester was probably involved in the fighting of a number of fires.  You admitted being present on 10 February when a fire was lit, which you said was started with a fire lighter.

25Essentially both Ashleigh Haenga and Amber Holland said they had seen you and Lester light fires in small shrubs and ultimately forensic analysis of the fire scenes was unable to identify the source of the ignition, although the expert opinion has been that the likely source of ignition was a match or cigarette lighter.

26You were arrested and bailed by police on 19 February 2016.  A committal was held on 1 September 2016, essentially the point being that you not be charged with the same offence as that of your co‑accused, that is lighting a bushfire, the matter ultimately being settled in mid-2017 when charges of arson were instead laid and a plea was thereafter promptly entered by you. 

27It is conceded by the prosecution that at no stage was there a defence put that you were not the person involved in the lighting of these fires.  No victim impact statements have been tendered in this matter.

28I now turn to your personal circumstances.  You are 34 years of age and have no prior convictions, nor since your involvement in this offending have you been involved in any further criminal offending.  You are one of six siblings.  Your parents are retired.  It appears that no other member of your family has been in trouble with police and you told psychologist Pamela Matthews, whose report dated 17 July 2017 was tendered on the plea, that you were close to all your family members growing up, although you are now only spending time with your parents and two younger siblings. 

29Your father did have a history of alcohol abuse, but the problem then resolved.  You fell behind in class in your primary school years, in a school where there were large classes and where you were bullied.  You attended Glenfern high school but then left after an altercation with the vice principal over your school uniform, completing Years 7‑10 at Rowville high school, saying you were a below average to average student who got on with your peers. 

30When you left school you undertook various unskilled positions as a labourer, worked as a roof tiler for about three years, as a cabinet maker, a scaffolder and carpet layer.  When you were 25 you married your wife Elsa and you have an eight year old daughter, Elizabeth.  You also have a 10 week old son, Arthur.

31The Department of Health and Human Services were involved in your small family for the first six years of Elizabeth's life as your wife suffers from chronic schizophrenia and also suffered post‑natal depression.  It appears and this was put to me by your counsel and in a letter written by your wife, that you have taken on the role of primary caregiver, both to your children and to your wife. 

32It is clear, however, that you have abused alcohol for many years really for about 10‑14 years.  You told Ms Matthews that your alcohol use was seven to eight cans daily but sometimes in excess of 10 cans and in July said that you continued to abuse alcohol in large amounts, up to and including at the time that you saw Ms Matthews.  According to your counsel your alcohol has been a consistent source of abuse for you, but has waxed and waned, depending on how situations were in your life.

33In addition to your difficulties with alcohol, you have also used marijuana on a very regular basis since the age of 16, this being a problem for you for about three years, you then ceasing use but taking it up when you were 19, but taking it up again around the ages of 30‑32 where you smoked one or two joints every couple of months.  These are the only substance abuse difficulties that you appear to have.  You have never received rehabilitative or treatment intervention for your substance use and abuse. 

34Pamela Matthews conducted a number of tests showing that you had a full scale IQ placing you in the average range, but noting that you had a particular difficulty with processing complex information within reasonable time frames, which could result in higher levels of error to both learning and task performance.  And she said that would have given you particular difficulties at school, because your difficulty in processing routine visual material would suggest that you lacked the intelligence that in fact you have.

35In fact what she stated:  "His abilities, sustained attention, concentrate and exert mental control is in the low average range ... others are likely to perceive Mr Sheldon as slow or impaired when this actually belies his average intelligence.  His attention to detail and visual discrimination is poor and this may lead to silly mistakes in tasks requiring these skills".  She also believed you may well have suffered a childhood disorder such as attention deficit hyper activity disorder.  She said that as a result probably of your experience of school, you have grown up with low self‑esteem and low expectations of yourself.  She said it was her belief that despite your age you would be quite vulnerable to social manipulation and abuse.  She certainly diagnosed you as having an alcohol use disorder as defined by the DSM‑5. 

36Importantly your counsel informed me that just after the birth of your son Arthur, you took yourself off to Alcoholics Anonymous and have remained abstinent for two months.  I regard this as an important step on your part.  You have also been regularly seeing a psychologist.

37Unsurprisingly, it was submitted by the prosecution that I should deal with you by way of a term of imprisonment to be immediately served.  Lighting fires the way you did is extremely dangerous.  You are extremely fortunate that no one was injured or killed.  If either of those things had happened, or indeed, if there had an extensive damage to personal property, you would not be sitting in the back of the court with your counsel arguing I should place you on a community corrections order. You would be sitting in the back of court with your counsel urging I keep your gaol sentence down as low as possible.  You would have been looking at years in gaol, Mr Sheldon.  It was extremely stupid behaviour.

38I am satisfied that you, as was your co‑accused, Mr Lester whom I sentenced back in September of last year, were both engaged in large scale drug and alcohol abuse in the case of Mr Lester and alcohol abuse in your case.  I have no doubt that you probably thought what you were doing was terribly funny and I have no doubt it was terribly funny to give the police a whole lot of false descriptions.  The fact of the matter is you have caused a vast amount of inconvenience and expense to the community in general. 

39The Metropolitan Fire Brigade was called out on numerous occasions.  Police attended on numerous occasions.  They were put to the trouble and expense of putting in covert operatives to stop what was happening.  No doubt you caused a great deal of fear amongst the neighbourhood as well.  This was stupid, immature and very dangerous offending.  I remarked that it bore all the hallmarks of teenage offending and you should be ashamed as a father of two.  Teenage offending involves stupid drug or alcohol affected offending in a spree type situation.  It goes on and on and on until you're caught and inevitably you were going to be caught. 

40You should be incredibly ashamed of your behaviour.  You put your role as a father at risk.  You may never have offended before or since, but the offending you did engage in was potentially incredibly dangerous.  You could have killed someone.  You could have hurt someone badly.  You could have destroyed property, precious and valuable to those who owned it, persons who may never have been able to replace it.  This was not just some silly prank.  This was very stupid, potentially very dangerous offending.  And you need to understand this, Mr Sheldon:  the superior courts, the courts that control the sentencing in this court have said that unless there are particular circumstances, people who commit arsons are supposed to go to gaol, for the protection of the community and to send a message out to the community that offending like this will not be tolerated, do you understand me.

41ACCUSED:  Yes, Your Honour I do, yes.

42HER HONOUR:  Yes, I hope you do.  You're a dad.  You've got two kids and you're out getting drunk lighting fires like some stupid 16‑year‑old.  Do you understand that? 

43ACCUSED:  Yes, I do.

44HER HONOUR:  Yes, I hope so.  How is Elsa supposed to cope if you're not around?  How is Elizabeth supposed to cope being taken into gaol to see you?  This all came out of your stupid decision to get involved in this, and because of your drinking.  You put your whole family at risk and believe me, even though I don't intend to gaol you today, you are not out of the woods yet, because I'm placing you on a community corrections order and if you get into any sort of trouble I'll gaol you for it.  I get the chance to bring you back on a breach and I'll gaol you for this, do you understand me? 

45ACCUSED:  Yes, Your Honour.

46HER HONOUR:  You better never get in trouble again.

47ACCUSED:  I cannot.  All I do now is just be there for my family.

48HER HONOUR:  Well, you know, good because you clearly didn't want to be there for them before.  It's just disgraceful behaviour for a father of a child and with a not well wife.  Really, just juvenile pathetic offending.

49Now, as I have said, arson is extremely serious offending and this is not arson in the Magistrates' Court, this is arson up here in the County Court, which is a court that can only hear charges which are considered particularly serious. 

50However, despite very understandable submissions by the prosecution, I do not intend to sentence you to a term of imprisonment immediately.  This is because of a number of factors.  Firstly, the offending, although extremely repetitive and potentially very dangerous and I do note that one of the fires covered an area of 30 by 40 metres, nevertheless was at the lower range of what potentially an arson can be. 

51Secondly, I have looked at the authorities which were referred to me.  This was not offending done in order to carry out personal vengeance, to obtain some sort of insurance fraud.  It was, as I have said repeatedly during this plea in my opinion, ridiculous teenage type offending adolescent immature offending, carried out by two persons who were very much abusing substances at the time. 

52Three, you have no prior or subsequent criminal history.  This is extremely important.  Four, although I sentenced your co‑accused, Lee Lester to a term of imprisonment combined with a community corrections order, Mr Lester was in a different position to you.  He had prior criminal history, most importantly he had been placed on a community corrections order for arson, a fairly serious arson of his parents' car when he fell into disagreement with them.

53I am willing to accept, although you bear just as much responsibility for what you did as he, that to some extent given Ms Matthews opinion of you, which was made in the absence of her knowing precisely what charge you faced, that you are an easily led person and may well have been led by Mr Lester on this occasion, although this in no way excuses you.

54Five, because of your lack of criminal or subsequent history, I do not regard you as posing a danger to the community in terms of you being likely to light fires in this way again.

55ACCUSED:  Never, Your Honour.

56HER HONOUR:  Yes.  You never better.  You never better because if you ever commit another offence, the first thing a court's going to do is oh, he's got a prior for arson in the County Court.  He got given a chance and he didn't take that chance, so in he goes.  Do you understand? 

57ACCUSED:  Yes, Your Honour.

58HER HONOUR:  Yes, you had better.

59I also accept that you are truly remorseful for your offending and I note that negotiations as to a trial were on the basis of a technical legal argument as opposed to denial by you of being responsible for this offending.  I am satisfied you have reasonably good prospects for rehabilitation.  You have remained in your marriage for many years.  You have finally taken steps in regard to your alcohol abuse.  You are seeing a psychologist.  I note in those circumstances you have been found suitable for placement on a community corrections order. 

60I am satisfied that whilst general deterrence is an important principle to which this court must have regard in respect of the sentencing exercise before it, this can be properly expressed by way of a community corrections order in the terms expressed by the Court of Appeal in Boulton. 

61I am also satisfied that specific deterrence is not necessarily something to which I need have particular regard, given especially the moves you have made to address your drinking problem.  However, I do regard this as serious offending.  There will be conditions attached to the community corrections order and I am going to impose judicial monitoring so I can make sure that you are doing what you are supposed to do under this order, do you understand sir? 

62ACCUSED:  Yes, Your Honour.

63HER HONOUR:  Thank you.  Could you stand up please. 

64Referring again to the authorities in this case, I find that the facts, situations underlying each of those authorities referred to me were far more serious and of a different ilk to the offending that brings you here before this court for the first time in your life.

65I can only place you on a community corrections order if you consent to it, so I need to outline the conditions to you.  They are firstly, that whilst you are on this orders which will last for a period of two years, you must not commit another offence punishable by imprisonment. 

66What that means is you don't have to commit an offence and get gaol.  If you just commit an offence that you could get gaol for, like knocking off a box of matches from Woolworths, that's a breach, okay. 

67Secondly, you may not leave Victoria without the permission of the community corrections office.  Thirdly, you must attend upon the community corrections office within two working days of the making of this order, that is by Friday of this week.

68ACCUSED:  I've got an appointment for Friday, Your Honour.

69HER HONOUR:  Okay.  Fourth, you must advise the community corrections office of any change of address or employment within 48 hours of the making of this change.  Fifthly, you must report to and receive visits from the community corrections officers as directed. 

70Sixthly, you must not attend upon the community corrections office under the influence of drugs or alcohol.  Seventhly, you must obey all lawful directions of the community corrections office.  I am going to order that you undertake 150 hours of unpaid community work.  You are to attend for assessment and treatment for alcohol use.  You are also ordered to attend for assessment and treatment for psychological difficulties.  That will probably involve you continuing to see the psychologist that you are already seeing, as directed by corrections.

71I am going to order that you be supervision, which means you'll have a fairly intense involvement with corrections at least for the start of the order.  I am going to order judicial monitoring and I want to see you in six months' time.  I will see you at 9.30 am on 29 May. 

72Are you prepared to enter this order? 

73ACCUSED:  Yes, Your Honour, I am.

74HER HONOUR:  Thank you.  Have a seat we'll print‑out the paperwork. 

75The order is in respect of all the offending in my view, the nature of the offending is such that an aggregate sentences or disposition can be imposed.

76COUNSEL:  As Your Honour pleases.

77HER HONOUR:  Thank you.  It is a conviction, of course.

78So you'll be coming back to see me in six months' time, Mr Sheldon and if you aren't doing well, I will not be happy. 

79ACCUSED:  Yes, Your Honour.

80HER HONOUR:  And I'm telling you now, if you breach this order, I can resentence you for this and I will gaol you.  So the main thing you have got to be worried about is not getting drunk and not doing something stupid.  So alcohol is your big enemy now.  Alcohol could have lost you your family and alcohol could see you in gaol again.  You need to stay at AA.  I mean good on you for going there, well done, but you have to understand that alcohol is the big problem ‑ that is the one thing that is going to throw you ‑ if you start drinking again, I know what will happen:  you won't rock up to what appointments you're meant to go to.  You won't do what you're supposed to.  You'll be back on a breach before you know it, because you can breach it by not doing what corrections says and by not obeying these conditions.  If you start drinking and go on a big binge, you just won't turn up to things.  You'll be back here on a breach and I'll gaol you, because I regard you as a danger when you're drinking.  Have you got that? 

81ACCUSED:  Yes, Your Honour.

82HER HONOUR:  Good.  I will just have a look at this, thank you. 

83Thank you very much.  So I want to see a report in May that you are going like a rocket, "I'm not drinking".

84ACCUSED:  Yes, Your Honour.

85HER HONOUR:  And no child needs an alcoholic father.  I mean you had one.  You had had one.  You didn't like it when your dad was like that.  Don't you be like that either. 

86All right thank you very much.  Sorry Mr McGuire.

87MR McGUIRE:  Sorry, Your Honour, there was just a minor matter:  it's been brought to my attention that Mr Sheldon did provide a forensic sample at the time of the record of interview, so all we're asking for is retention.

88HER HONOUR:  A retention order, no problem.

89MR McGUIRE:  Thank you.

90HER HONOUR:  I do regard this as sufficiently serious for such an order to be made.

91MR McGUIRE:  Thank you, Your Honour. 

92HER HONOUR:  I also note that in my view any community correction concerns are somewhat assuaged by the fact that you continue to reside in the same unit.  Mr Lester has left the scene.  Ms Holland has left the scene.  And in the circumstances of that same residence, there has been no recurrence of this offending since 19 February 2016. 

93Further, I note that you have abided by fairly strict bail conditions, including a curfew, which again, impresses me, as you understanding the seriousness of your situation and a determination to behave in a lawful fashion as much as possible in the circumstances.

94I thank counsel very much indeed for their submissions which were must helpful.

95COUNSEL:  As Your Honour pleases. 

96HER HONOUR:  Thank you, we will stand down.

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