Director of Public Prosecutions v Stanger
[2020] VCC 735
•12 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-20-00663
Indictment No. K11183726
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM JAMES STANGER |
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| JUDGE: | HER HONOUR JUDGE DALZIEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 June 2020 |
| DATE OF SENTENCE: | 12 June 2020 |
| CASE MAY BE CITED AS: | DPP v STANGER |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 735 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Intentionally causing a bushfire - plea of guilty
Legislation Cited:
Cases Cited:
Sentence:Total effective sentence of 3 years, non-parole period of 2 years
Section 6AAA declaration: 5 years with non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr John Goetz | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms Lauren Bull | Victoria Legal Aid |
HER HONOUR:
1.Liam James Stanger you have pleaded guilty to a single charge of Intentionally causing a bushfire, pursuant to s.201A of the Crimes Act 1958, for which the maximum penalty is a term of imprisonment of 15 years.
2.The charge to which you pleaded guilty is that you intentionally caused fires, with foresight of the probability of the spread of the fires to vegetation or property belonging to another. This charge is a rolled up charge covering two fires which you lit on 23 February 2019. The details of this offending were set out in the Summary of Prosecution Opening read by the prosecutor on the plea.
3.In summary, on that day you were driving from Cobram in Victoria to Cooma, NSW, where you were planning to pick up your dog from your father. As you were driving east along the Murray Valley Highway you were pulled over by a police officer who had observed you driving over the speed limit. That officer gave you a verbal warning about your speed but did not issue a ticket.
4.You subsequently told the investigators of these fires that you had been in a bad mood before you were pulled over, and that this was made worse by the intercept, as you felt that police targeted you regularly.[1]
[1] Record of Interview Q&A 315 and various
5.This intercept occurred at around 5.00 pm near Tallangatta. Afterwards you continued to drive east, until you turned off the highway onto a track leading to Firebrace Track, near Koetong, at around 5.15 pm. You drove up Firebrace Track for around 2 kilometres, travelling deeper into the
Mount Lawson State Park. You stopped, got out of your car, and set fire to dry vegetation, with a cigarette lighter.6.After lighting that fire you drove back down Firebrace Track. Around
250 metres north of the Murray Valley Highway you stopped again, got out of your car, and lit another fire in dry vegetation on the side of the road. This area was next to a paddock where, unobserved by you, two people were working.7.Having set this fire you drove off west, and continued to Cooma. The people in the paddock near this second fire noticed the smoke and were able to report it. They were able to use a water source to fight the fire, and the CFA arrived quickly to control it. This fire burnt approximately 1,200 square meters of roadside bushland, and part of the paddock, as well as fencing.
8.The first fire you set was also spotted, and multiple units from the CFA attended to control it. The water bombing helicopter was utilised, as well as a Department of Environment Land Water and Planning ('the Department') bulldozer. By around 8 pm that fire had been contained, with Department staff remaining at the scene until around 10.25 pm, continuing to put the fire out. This fire burnt approximates 3,600 square meters of bushland. This fire was approximately 750 metres west of a commercial pine plantation.
9.The cost of repair to fencing damaged by the second fire was $483.95. The cost to the Department for response, assessment and extinguishing both fires was $17,664.85. You are not being sentenced for causing damage, but rather lighting fires with foresight of the probability of them spreading. The extent to which these two fires did spread illustrates, in part, the gravity of this offence.
10.You told the police that you were aware of the risks of fires, and that if it had been windy you would not have set these fires as they would have got out of control.[2] You said you were angry, and you lit the fires as a way to vent some of that anger. The locations you set them at were random. You acknowledged that you were lucky the fires were not worse, and described your acts as careless, negligent and dangerous.[3]
[2] Record of Interview Q&A 218, 232-235
[3] Record of Interview Q&A 116, 219-220, 302, 341, 342, 350
Personal Circumstances
11.You are now 38 years of age and were 37 when this offence occurred.
12.You grew up in Cooma, NSW. As a child you spent a lot of time with your maternal grandmother. Sadly, she had a heart attack in the kitchen at home, so that you had to call an ambulance, when you were 12 years old. She died not long after. Your parents separated a year later. Both of these events would have shaken the foundations of your young life.
13.In addition, you have all your life been subject to the difficulties caused by learning and behavioural issues. You were rebellious towards authority and had some difficulties with socialisation at school. Dr Cunningham, a psychologist, states:
'Mr Stanger struggled to engage with others, regulate emotional states and cope with formal schooling. This is consistent with the presence of an underlying neurodevelopmental disorder such as Attention Deficit Hyperactivity Disorder or Autism Spectrum Disorder'.[4]
[4] Page 4
14.You were diagnosed with ADHD in your 20’s and received treatment for that condition, although not regularly.
15.When you were 18 you moved to Goulburn in NSW, where you lived for some years, but since then you have moved about a bit. You have had a number of jobs, but more recently have not been employed, as you have been struggling with various issues.
Mental and Physical Health
16.You commenced using alcohol and drugs – amphetamines and heroin – when you were 18 years old. At the time of this offence you had been on the Methadone program for 10 years, and had recently again been formally diagnosed as suffering from ADHD, for which you were prescribed Ritalin. Your GP stated that if the ADHD went untreated you would behave badly. His report indicates that you were successfully treated with Ritalin, although this drug takes time to have its full effect upon you.
17.You have in the past had Hepatitis C, but your GP states that you were cleared of this condition by antiviral therapy.
18.The report of Dr Cunningham notes that for many years you have believed that you have been targeted by police, and you told him that you had been surveilled by police since you were a teenager. This is consistent with your statements to the police who interviewed you for this offence, and your anger at having been pulled over on the day of the offence.
19.Your mother told Dr Cunningham that you have expressed grandiose, paranoid and delusional thoughts whilst in custody. Dr Cunningham reported that when he spoke to you your thought processes seemed to be based in reality and not undermined by psychotic illness, although he noted that you were being prescribed Olanzapine in custody.[5]
[5] Page 3
20.Prior to your recent incarceration you had been taking Methadone. You were not given this treatment whilst in custody and the ‘cold-turkey’ cessation of that treatment was very difficult for you. I was told by your lawyer that you are not provided with Ritalin whilst in custody, and that this makes things more difficult for you.
21.In late 2015 when you were in custody in NSW you became suicidal and made a serious attempt to kill yourself by cutting your wrists. You were hospitalised so that the serious wounds could be treated. Some five days later you repeatedly struck your head against an iron bed frame, leading to a further hospitalisation to treat the lacerations to your head and fractured facial bones.
22.Dr Cunningham considered that you have symptoms of Generalised Anxiety Disorder and Post Traumatic Stress Disorder, but not at a level that amounted to a severe mental illness. More important to this offending and your future is his opinion that:
'Consistent with the presence of a childhood neurodevelopmental disorder, Mr Stanger has a level of psychological and emotional immaturity relative to his age peers. This is evidenced in his black and white thinking and fixed and rigid moral reasoning. Consistent with this thinking style,
Mr Stanger has a tendency to externalise blame for his problems. He feels persecuted by authority figures and often focuses on police. He stated that he relocated to Victoria to escape persecution by police but suffered similar persecution in Victoria. His offence behaviour stemmed from frustration at being again pulled over by police. He reacted in a childlike and reckless manner by setting the fires. At the time of his offence, Mr Stanger did not appear to be considering the consequences of his actions to innocent victims. He stated that he was not drug affected but was simply angry that the police had pulled him over on two occasions. He now acknowledges the wrongfulness of his actions'.
23.I accept that your thought processes as an adult have been affected by a childhood neurodevelopmental disorder, in a way that diminished your ability to exercise appropriate judgement, make calm and rational choices and to process your feelings of anger about having been pulled over near Tallangatta, in a healthy way.
24.Dr Cunningham also noted that your approach to life, your rigid thinking processes and difficulty with authority mean that you often come into conflict with the prison system, which means that you are often placed in management units and isolated. This cycle worsens your depression and anxiety and your belief that you are persecuted.[6] I accept that this makes your time in prison more difficult than it would be for a person without those issues, and that incarceration has a deleterious effect on your mental health.
[6] Page 5
25.I mitigate your sentence to a degree for each of these consequences of your mental state. There was some discussion on the plea about whether these matters were to be taken into account pursuant to the case of Verdins or rather in a general way. Regardless of the heading under which they fall, I give them appropriate weight in mitigation.
26.On the other hand, these long-standing issues raise significant concerns in respect to your prospects of rehabilitation. You have a long and varied criminal history which demonstrates what Dr Cunningham described as your difficulty in dealing with authority. The reason you set these fires appears to be part of that entrenched way of thinking. Your prospects of rehabilitation are of concern. Whilst I accept that you do have some prospects of rehabilitation, particularly in respect to the lighting of fires, the extent to which you can remain out of trouble relies in part on your receiving appropriate treatment and medication.
Criminal History
27.You have a substantial criminal history dating back to 2000, when you were 19 years old. This history reflects your attitude towards the police, and difficulty with complying with court orders. You have had a number of periods of incarceration in NSW. Importantly, however, you do not have any prior convictions for arson.
28.You were released from custody on 18 December 2018 having served 7 months for dishonesty offences, and upon your release you commenced a community correction order, which was to run for 12 months. The current offence was committed a little more than two months after your release from prison.
Offence Gravity
29.I take the following matters into account in considering the gravity of this offence.
29.1.The maximum temperature on the day on which you lit the fires was around 30°C, with low relative humidity. Even at around 8.25 pm it was still 26°C degrees[7];
29.2.The area was subject to a Fire Danger Period declaration for the entire summer;
29.3.The first fire was set at a distance of some 2 km from the main road, up a dirt road. The likelihood of swift detection of this fire was lessened by its location, which significantly increases the gravity of your offending;
29.4.The second fire was set nearer the main road, next to a paddock. This means the likelihood of detection of it was higher than the first, however this area was still rural;
29.5.You had not seen the two people in the paddock and so it cannot be said you lit the fires thinking they would be found quickly;
29.6.Your offending was unsophisticated, but purposive. You lit two fires. It was reactive to your anger about being pulled over, but there was no rational connection between the fires and the police conduct. You told police you were angry and set the fires to release that anger; and
29.7.You told the police that you would not have set the fires if it had been windy.[8]
[7] Depositions 31
[8] Record of Interview Q&A 218-219
30.The conduct for which you are being sentenced is setting the two fires with foresight of the probability of the risk of the spread of the fire. There was a risk of the fires spreading in a serious way. The area in which you lit the fires, the time of day, the absence of people around and the dry weather all must have led you to understand the risk of the fires spreading was significant. Fortunately, the actual extent of the fires in this case was less than it could have been due to them having been observed quickly.
Matters Put on Plea
31.Your lawyer pointed to the following matters on your behalf:
31.1. Your physical and mental health, including how your mental state affects you and is affected by imprisonment;
31.2. The factors which make your time in custody more difficult, being the restrictions imposed on life in prison and the inability to have visitors, by reason of the COVID-19 restrictions;
31.3. The additional stress upon you in prison by reference to the
COVID-19 threat, taking into account your lack of control over your environment, and concerns about potential infection;31.4. Your plea of guilty, in terms of the utilitarian benefit, and as an indication of remorse;
31.5. The principle of totality, in circumstances where you have spent many months in gaol since this offence, none of which counts as pre-sentence detention on this charge.
32.I have already dealt with the first point. I accept that your time in custody is made more difficult by the COVID-19 pandemic for the reasons set out by your lawyer. Your time in custody is also made considerably more difficult by your difficulties with authority, and your ADHD, so that you are frequently isolated in management units.
33.Your plea of guilty and the stage it was entered provide considerable savings in time and effort to the community and the courts, and warrant a real discount in your sentence. Whilst there was around seven months between the first committal mention and your indication that you would plead guilty, much of that delay was due to circumstances beyond your control. I will treat your offer to plead guilty as an early plea. Your plea of guilty has a greater effect in mitigation by reason of the effect of the COVID-19 restrictions upon the operations of the court.
34.I also consider your plea is an indication of your remorse. I accept that you understand what you did was wrong, that you know why it was wrong, and that you do regret your actions. In particular I rely on your statements to the police that you do not feel good about what you did, and that you were able to describe your actions as careless, negligent and dangerous.
Sentencing principles
35.General deterrence is an important factor in this matter. Bushfires can be devastating to the bush and the creatures that live there, to the homes and livelihoods of people, and present a serious risk to those who fight fires. It is a matter of public knowledge how devastating bush fires can be. The need to deter people from setting fires whilst reckless as to the spread of the fire to property of others is as obvious as it is important. The sentence I impose is also intended to denounce your conduct and to be just punishment upon you.
36.The sentence is intended also to deter you from committing further offences. Your prospects of rehabilitation mean that this is a matter requiring some weight.
Totality
37.You were arrested and charged for the current offence on 10 May 2019. You were on bailed on these charges. Your remand history shows that you were again arrested in late May 2019 for offending listed in the Shepparton Magistrates’ Court and bailed again on 25 June 2019. You breached both that bail and the bail on this matter and returned into custody in late August 2019 and have remained in custody since.
38.On 14 October 2019 you were sentenced on both sets of new offending to a total effective sentence of one year imprisonment with a non-parole period of six months. That non-parole period has now expired.
39.Your bail on the present matter was revoked only upon your indication on
14 May this year that you would plead guilty to this charge.40.You therefore do not have any pre-sentence detention that can be declared on this sentence, although you have spent some weeks on remand for this matter whilst also serving the other sentence. Because your bail was not revoked this period of actual overlap is actually quite short. Nevertheless, you have served over six months in custody on other matters between the commission of this offence and today. Those offences were committed whilst you were on bail for this matter, and thus the Sentencing Act prescribes that the sentences should be served cumulatively upon this sentence. On the other hand, the principle of totality has work to do. I will moderate the sentence you will receive to take account this other time in custody since the commission of this offence.
Current Sentencing Practice
41.Your lawyer referred me to three cases involving other people sentenced for this offence. In those cases two of the offenders had priors for arson, and one did not. The number and extent of the fires lit varied, as did the locations, extent of the damage caused and the risks associated with spread of the fires. Those cases provide some assistance but each case falls to be sentenced on its own facts. In particular, they do not set an upper or lower limit upon my sentencing discretion.
42.As to disposition, your lawyer accepted that you would be sentenced to a term of imprisonment, and noted the difficulties you would have complying with a community correction order, even if the prison term were of such a length that permitted a combination sentence.
43.Mr Stanger, you can remain seated but I am not going to pronounce sentence.
44.On Charge 1 you are sentenced to a term of imprisonment of three years.
45.I direct that you must serve a period of two years before you are eligible for parole.
46.Pursuant to s.6AAA Sentencing Act, had you pleaded not guilty, you would have been sentenced to a total effective sentence of five years with a non-parole period of three years.
47.Is there anything arising, counsel?
48.MR GOETZ: No, Your Honour.
49.MS BULL: No, Your Honour, thank you.
50.HER HONOUR: Thank you, adjourn the court.
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