Director of Public Prosecutions v Skidmore
[2023] VCC 493
•30 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00410
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JERRY LEE SKIDMORE |
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JUDGE: | Her Honour Judge Hawkins | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2023 | |
DATE OF SENTENCE: | 30 March 2023 | |
CASE MAY BE CITED AS: | DPP v SKIDMORE | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 493 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – SENTENCING.
Legislation Cited: Crimes Act 1958 (Vic), s197; Sentencing Act 1991 (Vic), s5, s6AAA
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Sazimanoska v The Queen [2020] VSCA 66; Brown (aka Davis) v The Queen [2020] VSCA 60; Re Broes [2020] VSC 128; Re McCann [2020] VSC 138; Salmi v R [2020] VSCA 250; DPP v Chidwick [2019] VCC 197; DPP v Mannion [2021] VCC 185; DPP v Nguyen [2018] VCC 1073; DPP v Dart [ 2018] VCC 1267
Sentence: Total effective sentence of 2 1/2 years’ imprisonment with a non-parole period of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Patterson Ms E. Muir | Office of Public Prosecutions |
| For the Accused | Mr D Sala Ms H. Anderson | James Dowsley & Associates |
HER HONOUR:
1Jerry Skidmore, you have pleaded guilty to one charge of arson which carries a maximum penalty of 15 years’ imprisonment.[1] I note that you are charged pursuant to ss197(1) and (6) of the Crimes Act 1958 and that the prosecution do not allege that you intended to endanger the life of another pursuant to a different sub-section, s197(2).
[1]Crimes Act 1958 (Vic), s197(7)
2You have also admitted your prior criminal history.[2]
[2]Exhibit 2
Circumstances of Offending
3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 27 February 2023,[3] the accuracy of which you accepted through your counsel.
[3]Exhibit 1
4
At the time of your offending you were living with your then partner, Jennifer Bishop in Carrum. The victim of your offending is Ross Krieger, who was living with his pet dog in his caravan that was parked in his son’s driveway one street behind
Ms Bishop’s house.
5
In the weeks leading up to your offending, Ms Bishop ran into Mr Matthew Thorpe, who had recently moved back into town. Mr Thorpe and Ms Bishop had been friends for several years, had previously been romantically involved and Ms Bishop had allegedly bought drugs off him from time to time. After this reacquaintance,
Mr Thorpe visited Ms Bishop at her unit several times.
6
Mr Thorpe twice attended Ms Bishop’s unit while you were there. You met
Mr Thorpe with aggression and told him he was not welcome.
7About a week prior to your offending, you and Ms Bishop walked past Mr Krieger’s caravan. Ms Bishop had previously told you that Mr Thorpe used to live in a caravan, but not that he was living in that particular caravan you saw on that day. You asked Ms Bishop the name of Mr Thorpe’s dog and she replied, ‘Bro’. You then yelled out ‘Hey Bro!’, and heard a dog bark from inside the nearby caravan.
8On 15 April 2019, as you and Ms Bishop were walking back to Ms Bishop’s unit, Mr Thorpe came up in conversation. You spoke jealously of him and about how you wanted to drive him out of Carrum. You retrieved a jerry can full of petrol and cotton strips from Ms Bishop’s house and declared that you were going to set fire to the caravan to send Mr Thorpe a message to, 'Fuck off out of Carrum’.
9
In compliance with your directions, Ms Bishop came with you to the street near
Mr Krieger’s caravan. You told her to hide behind the bin and get ready to run. You then put the jerry can underneath the tow ball of the caravan, fiddled with the cotton and lit it with a cigarette lighter. You ran back across the road, but the fire failed to remain alight. You then ran back and lit the cotton again, causing the jerry can to explode. You both ran away from the caravan, and returned to Ms Bishop’s unit.
10While you set the jerry can alight, Mr Krieger was in bed watching tv inside the caravan and heard a noise outside. When he got up to check, he saw a flame on the outside fence. Mr Krieger attempted to put the fire out with a hose, yelling for help. Despite his efforts, the fire took hold of the caravan and nearby structures, reducing them to smouldering ashes.
11Emergency services arrived soon after.
Post Offence Conduct
12Back at Ms Bishop’s unit, you told her to lock the front door, turn the lights and TV off and you went to have a shower. When you got out of the shower you said, ‘Oh fuck, what have I done?’ and told Ms Bishop to wash your clothes because they smelt strongly of fuel.
13You and Ms Bishop then returned to the scene of the fire and watched for about 10 minutes before returning again to the flat.
14
You then told Ms Bishop to call her friend, Donna Naylor, to arrange to collect some cannabis so that you had an alibi. Ms Bishop did so and drove you to
Ms Naylor’s home in Frankston North. Ms Bishop told Ms Naylor that you had blown up a caravan and that you were there to create an alibi.
15When you and Ms Bishop returned home you watched police and firefighters still at the scene of the fire.
16On 5 May 2019, you sent Mr Thorpe a message on Facebook Messenger saying:
‘Stay away from Jennie & my house, she & her daughter & my family don’t live in the shard world so fuck off, just a friendly word next time your fucking head will cave in’
17Approximately a month and a half after the fire, Mr Thorpe ran into you and your son at the shops. He said to you, ‘You’re lucky you have your kid with you mate, you tried to kill me’, to which you responded, ‘Maggots burn’, and walked off.
18
Around 2 June 2019, you told Ms Bishop that you found out that it was not
Mr Thorpe who had been living in the caravan.
19After initial investigations, Police were unable to determine who was involved in the fire so the investigation was marked ‘unsolved’.
Report & Interview
20After your relationship with her ended, Ms Bishop disclosed your offending to police in December 2019. During interview on 9 March 2020 with police, you stated:
· You were aware of, and had seen the fire but denied any involvement;
· You had seen the caravan but denied knowing Mr Thorpe or anyone else lived in it. However, you believed that Ms Bishop told you that Mr Thorpe could have been living there;
· You denied having any issue with Mr Thorpe and never exchanged unpleasantries with him. You did speak to him a couple of times when he showed up at Ms Bishop’s house;
·
You had an exchange with Mr Thorpe on McLeod Road near Aldi where
Mr Thorpe had said you were lucky you had your son with you or he’d ‘get you’. You denied saying anything back;
· You knew Mr Thorpe walked a dog but did not know its name and never asked Ms Bishop what its name was;
· You denied going anywhere after seeing the fire, including Ms Naylor’s house.
Nature & Gravity of Offending
21The objective seriousness of the offence of arson is reflected in the maximum penalty it carries of 15 years’ imprisonment.
22As a result of your jealousy over, and dissatisfaction with your partner’s reacquaintance with her ex, you set upon a path to warn him off pursuing any further relationship with her. That included a plan to incinerate what you thought to be his home, at a time when the caravan was obviously occupied. You caused an explosion by lighting a jerry can full of petrol, in a built up residential area, within very close proximity to neighbouring homes at a time of night when occupants were likely present. The busyness of this area at the time is demonstrated by the victim’s estimation that in in the time it took for police to arrive, well over 100 onlookers arrived at the scene.
23Yours was a targeted attack, posing extreme risk to the safety of not only the victim inside the caravan, but to yourself, your partner and everyone within close proximity. Your offending involved a significant degree of pre-meditation and planning, and involved the use of an accelerant.
24There was malice in your actions without regard to the potential for harm. You were given the opportunity to cease your behaviour after the first failed attempt. Unfortunately, you persisted and made a successful second attempt that saw an explosion that Ms Bishop described as ‘bigger than the caravan itself’. The caravan was engulfed within five minutes and was completely destroyed, with only a pile of charred rubble remaining.
25Whilst I note that you are not charged with intending to harm the occupant, your offending is aggravated because you set fire to this caravan, knowing that a man and his dog were inside. Given the background noise of his TV, it was only by chance that Mr Krieger was alerted and exited the caravan before it was engulfed. It is sheer luck that no one was hurt. As it turned out, Mr Krieger was not even your intended target.
26Your moral culpability is further aggravated by your post offence conduct. After the explosion, you fled the scene, watched the fire unfold from Ms Bishop’s unit, and disturbingly returned to the scene posing as an onlooker.
27Perhaps after realising the severity of your actions, you attempted to rid your clothes of potential evidence and then took steps to obtain a false alibi.
28As your counsel concedes, little can be sensibly advanced in terms of an explanation for your offending besides a state of intoxication and a jealousy driven attempt to remedy the perceived love triangle between you, your then partner and Mr Thorpe.
29I conclude that the seriousness of your offending and your moral culpability for it are very high.
Victim Impact Statement
30In his Victim Impact Statement,[4] Mr Krieger described the fear he felt when the fire took hold. He feared for his life, his son’s adjacent home and everyone around it. He thought he was going to die. It has taken Mr Krieger ‘quite a while to move on’ and has experienced anxiety attacks over the last few years, especially when travelling in his van.
[4]Exhibit 3
Personal Circumstances
31Mr Skidmore, you were born in September 1966 and at the time of offending, you were aged 52.
32You were born in Coventry in the United Kingdom and have a younger sister who lives in Australia. You enjoy a close relationship with her.
33You are a permanent resident in Australia and remain a citizen of the UK.
34Your family moved back and forth from Australia to the UK several times while you were between the ages of nine and 18. This constant shifting involved significant interruption to your schooling, with you attending at least 13 different schools. You otherwise enjoyed a positive home life.
35On returning to Melbourne, Australia at 18, you began working in a store house moving bolts of fabric. From then, you have maintained constant employment in various trades including working as a plumber, labourer and store worker.
36You have had a number of significant relationships over your life, the most important being with the mother of your two children. You describe having an extremely positive relationship with your son.
37You are now aged 56 and your health presents with some challenges, particularly with regard to your heart. You need to moderate your consumption of any liquids of all types, but you do not submit that your condition could not be adequately managed in a custodial environment.
38You commenced drinking at about 15 years old. This was originally confined to the weekend, however escalated to binge drinking episodes. Your drinking habit continued into the time of your offending and you described drinking heavily with your then partner at the time. You report that the breakdown of your relationship with Ms Bishop in 2021 motivated you to significantly reduce your alcohol consumption to occasional use only.
39I do have regard to the positive steps that you have taken towards your rehabilitation during the significant period which has elapsed since your offending.
References
40Three character references were provided to the court in support of your plea.[5]
[5]Exhibit 7
41Your sister describes a close relationship with you and each of your children. She describes you as being constantly loving and supportive in your relationships and friendships; consistently taking good care of your family members and providing emotional and financial assistance. According to her, you have raised your 13 year old son with excellent values and have maintained a supportive co-parenting relationship with your former wife.
42Your sister also detailed a time where you assisted a neighbour in early 2019 when a fire broke out on his property. You helped him rescue his pets, with little regard for your own safety. Your sister uses this to point to your protective and caring nature.
43Two colleagues speak of you as a friendly, gentle and trustworthy workmate. You are well liked and have been at that workplace for over 25 years in various roles. They both note the love and care you have for your children.
Sentencing Considerations
Plea of Guilty & COVID Considerations
44You pleaded guilty to this charge in the week preceding the date that it was listed for trial. Whilst a number of civilian witnesses and the informant were cross-examined at a contested committal hearing of your matter, your plea nonetheless avoided the use of scarce public resources that would have otherwise been spent in conducting a trial. I take the utilitarian value of your plea of guilty into account, even at this late stage, particularly so being a plea made whilst the justice system is struggling to recover from the delays caused by the pandemic. In accordance with the principles enunciated in Worboyes’ case, you will receive an actual and palpable amelioration of your sentence.[6]
[6][2021] VSCA 169
Hardship of Imprisonment in COVID 19
45Whilst I understand that conditions have improved in custody, it is also accepted that the COVID-19 pandemic continues to impact life in prison, making incarceration more onerous than it previously was.[7] Given that you stand today to face a term of imprisonment, I take this hardship into account as a matter of mitigation in my sentence.
[7]Sazimanoska v The Queen [2020] VSCA 66 at [48]; Brown (aka Davis) v The Queen [2020] VSCA 60 at [48]; Re Broes [2020] VSC 128 at [39] and [46]; Re McCann [2020] VSC 138
Remorse
46In your letter to the Court dated 14 February 2023,[8] you accept responsibility for your ‘irresponsible and reckless actions’. You express the regret you feel and acknowledge the harm, both actual and potential, that they caused. You have used your offending as a ‘wakeup call’ and have engaged in a more pro-social lifestyle that will deter you from making similarly irresponsible and reckless decisions again.
[8]Exhibit 7
47Your sister has described witnessing the toll your offending has taken on your emotional and physical wellbeing, and tells the Court that you have expressed remorse.
48I accept that your plea of guilty is also indicative, to a limited extent, of your remorse.
49Your expressions of remorse are at however odds with your very late plea, entered shortly before your trial was due to commence. Whilst you will receive a discount by virtue of your plea of guilty, it will be tempered accordingly by the time when it was entered.
Criminal History
50Mr Skidmore, you have one dated and irrelevant criminal prior from Western Australia and you have not come to the attention of the justice system for nearly 30 years. I understand that this will be your first sentence of imprisonment.
Delay, Prospects of Rehabilitation & Risk of Re-Offending
51Your offending occurred almost four years ago. You were not arrested until March 2020, just as COVID wreaked havoc on our community. The delay in your case proceeding through the justice system is largely attributable to the resultant backlog caused by the pandemic.
52You have used that time to break a lifelong habit of drinking and adopt a pro-social and productive life.
53In your letter to the Court I referred to earlier,[9] you say that you have ‘stopped the excessive drinking that contributed to [your] impaired behaviour’. You have been single since 2019, explaining that your difficult relationship with your then girlfriend significantly affected your self-judgment. You have ongoing health issues that have led you to living a quiet and responsible family life. You need to take ongoing daily medication and attend weekly doctors’ appointments.
[9]Ibid
54You aspire to be a good role model for your son, and wish to continue to provide an emotionally and financially stable home environment for him.
55You have supportive people in your life, both in the familial and workplace environment.
56Considering all of the above, as well as your minor criminal history, I do conclude that you have good prospects of rehabilitation and pose a low risk of re-offending upon your release.
Risk of Deportation
57Your counsel, Mr Sala, drew my attention to the potential risk of deportation you face if sentenced to a term of imprisonment exceeding 12 months. However, there was no evidence before the court that demonstrated this risk being imminent in your case. As such, I cannot take any risk of deportation into consideration as a mitigatory factor in my sentencing synthesis.
Current Sentencing Practices
58In sentencing you today, Mr Skidmore, I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests that the community clearly has in seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into our society. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.
59I have had regard to the relevant sentencing principles referred to in s5 of the Sentencing Act 1991 (Vic). In particular, in your case I place weight on the principles of general deterrence, denunciation and just punishment, while noting the rehabilitative efforts that you have made. I have also taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the important principles of both totality and proportionality.
60I was referred to a number of cases said to be comparative to yours, in which the offenders were sentenced to combined sentences comprising a term of imprisonment, together with a community corrections order. None of those cases were on all fours with your factual scenario. Most notably, here the caravan was occupied at the time of the fire and you used accelerant, causing an explosion at a time of day when nearby houses were also occupied. You further sought to conceal your involvement and entered a late plea. For these reasons I do not consider that a combination sentence adequately addresses the relevant sentencing objectives I have referred to.
Counsel’s Submissions on Disposition
61The prosecution submit, and your counsel concede, that a term of imprisonment is appropriate to achieve the relevant sentencing objectives relevant in your case. The prosecution contend for a head sentence with a non-parole period. However, Mr Sala says on your behalf submitted that a term of imprisonment combined with a community corrections order could satisfy the principles of general deterrence, denunciation and just punishment, whilst also acknowledging the steps you have taken towards rehabilitation.
62Mr Skidmore, despite your long history of lack of engagement with the justice system, and the steps that you have taken towards rehabilitation in recent years, given the objective gravity of your offending and weighing the respective sentencing considerations applicable to your case, I conclude that a substantial period of imprisonment is warranted in your case.
63I note that you have no pre-sentence detention.
Sentence
Imprisonment
64Jerry Skidmore, I sentence you as follows:
65On Charge 1 (arson) you are convicted and sentenced to 2 years and 6 months' imprisonment.
66You must serve 20 months before you are eligible for release on parole.
Section 6AAA Declaration
67Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 3 and a half years’ imprisonment with a non-parole period of 2 and a half years.
Forfeiture Order
68I make the forfeiture order by consent.
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