Director of Public Prosecutions v Tune
[2023] VCC 149
•15 February 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00311
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEN TUNE |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 January 2023 | |
DATE OF SENTENCE: | 15 February 2023 | |
CASE MAY BE CITED AS: | DPP v Tune | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 149 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Arson – Plea of guilty – In excess of $3 million dollars in damage – Use of accelerant - Some evidence of pre-meditation - Extensive criminal history – Verdins – Dysfunctional childhood – Substance abuse
Legislation Cited: Crimes Act 1958 (Vic.); Dangerous Goods Act 1985
Cases Cited: Salmi v The Queen [2020] VSCA 250; Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269; Charles v R [2011] VSCA 399; Brown v The Queen [2020] VSCA 212; Romero v The Queen [2011] VSCA 258
Sentence: Imprisonment for 4 years; non-parole period 2 years and 8 months. Fine of $500.
Section 6AAA – Imprisonment for 5 years and 3 months; non-parole period of 3 years and 6 months. Fine of $650.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Mr C. Hooper | Zarah Garde Wilson |
HIS HONOUR:
1Jayden Tune, you have pleaded guilty to one charge of arson contrary to ss 197(1) and ss 197(6) of the Crimes Act 1958 (Vic.). The maximum penalty for that offence is 15 years’ imprisonment.[1]
[1] Crimes Act 1958 (Vic.), s 196(7).
2In addition, you have also pleaded guilty to the related summary offence of storing an unauthorised explosive, in this case a generic party sparkler, without the approval of the appropriate authority contrary to s 54(5) of the Dangerous Goods Act 1985 (Vic.). The maximum penalty for that offence is a fine of 100 penalty units.
3I sentence you on the basis of the Summary of Prosecution Opening dated 19 January 2023, which is an agreed summary (‘the Opening’). The following summary is drawn from the Opening.
Background
4In June 2020, you and your partner Voula Kyrou entered into an agreement to rent a premises in South Melbourne for a term of two years. The landlord was Justin Clayton[2] who was the owner of a number of commercial properties. Mr Clayton also owned a second building in South Melbourne from which he ran his business. The second building is the subject of the offending in this matter.
[2] A pseudonym.
5In February 2021, after you and Ms Kyrou had failed to make rental payments on the first South Melbourne property, you were evicted from the building and given notice to make arrangements with Mr Clayton’s solicitor to remove your property from the premises.
6After you were evicted, you and your associates sent a series of threating emails and messages to Mr Clayton, his solicitor and his real estate agent.
7Some of the messages that were sent included:
a.Wednesday the 3rd of March 2021 to Mr Clayton’s solicitor:
'Well first off buddy I need to find a space to put it all second I need the funds to do so plus have organise removers .. And I TELL YOU RIGHT NOW TOUCH A THING IT WILL NOT END VERY WELL. . .'
b.Thursday the 11th of March 2021 to Mr Clayton’s solicitor:
'so who and where is [Justin Clayton] if I get no response I'll come to ya fucking office with my M.C today simple.'
c.Thursday the 11th of March 2021 to Mr Clayton’s:
'Why U hiding like a bitch for cunt wanna take 3 weeks off to hide with our brothers money huh won't work we have all your address … that's just a start mother fucker. We are coming for ya dog'.
d.Friday the 12th of March 2021 to Mr Clayton’s real estate agent:
'Cunt you better take that lock off now so never recelved (sic) notice of termination notice to vacate let alone umm it's law rent not be paid until fit out is complete but due to covid 19 couldn't be finished until now so in saying that cunt everything has been completely fucking illegal so I am saying it once UNLOCK THE DOOR NOW ... HIS LAWYER JUST QUIT BECAUSE OF ME AND MY BROTHER FROM THE NOMADS M.C AND WHERES ALL MY MONEY I AM OWED NOW EVERY CENT OF RENT PAID WAS ILLEGAL AND HAS TO BE PAID BACK NOW CUNT ONLY WARNING'.
e.Tuesday 27 April 2021 to Mr Clayton’s real estate agent:
'If the dog does not contact me buy (sic) tomorrow me and the M. C will take control of the property simple'.
Offending
8Just before 11:00 pm on Wednesday 5 May 2021, you and Ms Kyrou left your address in Parkville. You were captured on that building’s CCTV footage wearing a white cap, a black bandana around your neck, a black jumper and hooded jacket, and white or grey track pants. In addition, you had in your possession a black motorised scooter and a black satchel slung across your shoulder.
9At approximately 11:42 pm, you were captured on CCTV footage arriving at Mr Clayton’s business premises in South Melbourne. You approached the building and poured an undetermined accelerant, most likely a flammable liquid such as petrol, through a window. You then reached into your bag and threw an unknown object at the window. The window exploded and flames blasted back towards you and billowed from the building (Charge 1 – arson). You immediately left the scene on your motorised scooter. CCTV footage from your Parkville address captured you and Ms Kyrou returning to your house at approximately 12:30 am on the morning of Thursday 6 May 2021.
10When the Metropolitan Fire Brigade arrived at the property shortly before midnight, the building was already engulfed in flames. By the time the fire was finally extinguished later the next day, the building and its contents had been completely destroyed. The agreed quantum of the damage caused by the fire is $3,006,681.00 The value of the damaged stock and the cost of business interruption to Mr Clayton is yet to be quantified and I have had no regard to it.[3]
[3] A court may only have regard to a matter in aggravation of sentence if it is proved beyond reasonable doubt – see R v Storey [1998] 1 VR 359.
Arrest and Investigation
11Two months later, on 6 July 2021, police executed a search warrant at your house in Parkville. You and Ms Kyrou were present at the address during the execution of the search warrant and you remained at the premises during the search.
12Police seized clothes, your motorised scooter, an Info Tracer search report on Justin Clayton and various papers relating to Victoria Police and CFA radio frequencies.
13In addition, police located a clear plastic container filled with explosive material in a kitchen drawer, as well as further explosive materials inside a kitchen cupboard. The Bomb Response Unit was notified, and an arson chemist examined the plastic container and confirmed that it contained sparklers and sparkler shavings (Related Summary Offence 4 – without approval store unauthorized explosive).
14You were subsequently transported to the St Kilda Police Station where you participated in a police interview and denied the allegations.
15You were remanded in custody on 6 July 2021 where you remain. During the time that you have been held on remand for this offending, you have been sentenced to 6 months in custody for unrelated offending.
Objective Gravity
16Intentionally damaging property belonging to another is a serious offence which attracts a maximum penalty of 10 years’ imprisonment.[4] Where such an offence is committed by fire it is charged as arson and, in indication of its particular seriousness, attracts a maximum penalty of 15 years’ imprisonment.[5] The increased maximum penalty reflects the increased risk to health and safety caused by an uncontained fire. Those who may be exposed to that risk include people living and working in the vicinity of the fire and the firefighters who respond to the alarm.
[4] Crimes Act 1958 (Vic.), s 196(1).
[5] Crimes Act 1958 (Vic.), s 196(6) and (7).
17As conceded by your counsel, your conduct represents a serious example of the offence of arson. There are several aggravating features of your offending: the significant quantum of damage caused; the use of an accelerant on the building; and the context of your animus and threats against the victim. This latter feature is particularly concerning representing as it does a form of ‘misguided vigilante’ activity.[6]
[6] Salmi v The Queen [2020] VSCA 250 at [44].
18I do not accept your counsel’s submission that ‘there is no evidence of pre-planning’.[7] You went equipped to commit this offence and, while your offending was not sophisticated, it is clear to me that it was premeditated.
[7] Defence Submissions on Plea dated 20 January 2023 (‘Defence Submissions’), [4].
19On the other hand, the offence was committed at night, when business premises would be expected to be unoccupied; and the building and surrounds were in a mixed residential/commercial area rather than a purely residential area where there would have been a greater risk of people being present. There is no evidence of anyone other than the responding fire crews being endangered. Further, unlike some cases of arson, there was no fraudulent insurance claim or other intent to benefit financially.[8]
[8] Cf. Salmi v The Queen [2020] VSCA 250 at [43].
Victim Impact
20The Court received a Victim Impact Statement from Justin Clayton dated 24 January 2023. It is agreed by the parties that parts of the Statement are inadmissible and I have had no regard to those aspects of the Statement.[9]
[9] Sentencing Act 1991 (Vic.), s 8L(6)(a).
21Mr Clayton states that the fire has caused him and his family to live in fear. He says that he is angry, agitated and can’t concentrate. His business, which he had built up over 32 years, was severely impacted and he had to find new premises which took some time. The fire has impacted on his marriage, family and social life. He feels that the fire may haunt him for the rest of his life.
22I have taken into account the severe impact of your offending on Mr Clayton. This impact increases the gravity of your offending.
Personal Circumstances
23I now turn to your personal circumstances.
24You were born in Melbourne in 1990 and are now 32 years old. You suffered a difficult and disturbed childhood and experienced physical, emotional and sexual abuse as a child. Your relationship with your parents and family significantly deteriorated in your early adolescence, and you were periodically kicked out of home and slept rough. You began to display disruptive behaviours, were expelled from Albert Park College, and ceased studies at year 10 level.
25After high school, you gained employment at McDonald’s for several years before taking various jobs driving trucks and labouring. Recently, after a six year period of unemployment which you attribute to your drug dependency, you established a music studio and t-shirt manufacturing business with your partner Ms Kyrou. You and Ms Kyrou ran this business for approximately two years prior to your incarceration in July 2021.
26You have a history of substance use which spans across two decades. At the age of 11 you began using cannabis, and at the age of 21 you began taking methamphetamine, initially using half a gram weekly and later escalating to 7 grams daily.
Matters in Mitigation
27You pleaded guilty after several directions hearings in this court. Although your plea was not at the earliest possible opportunity, it nevertheless entitles you to a significant discount on sentence in the context of the ongoing disruption experienced by the courts due to the pandemic.[10] I also accept that by your plea you may be considered to have some degree of remorse for your offending.
[10] Worboyes v The Queen [2021] VSCA 169.
28You were assessed for the purpose of this plea by neuropsychologist Matthew Staios, whose report dated 18 January 2023 is in evidence before the court.[11]
[11] Psychological Report of Matthew Staios dated 18 January 2023 (‘Psychological Report’).
29Mr Staios assessed your intellectual functioning and found that you possess a low IQ and exhibit ‘low average to borderline intelligence’, although I do not consider this to be of particular significance in this sentencing exercise. In addition, Mr Staios concludes that your childhood trauma and the experience of a motorcycle accident led you to develop symptoms consistent with Post-Traumatic Stress Disorder (PTSD), including outbursts of anger, hypervigilance, and reckless and self-destructive behaviour.[12] At the date of his report, these symptoms continue to be a feature of your clinical presentation and have, for the most part, remained untreated.[13]
[12] Psychological Report, [3.6].
[13] Psychological Report, [7.2].
30Based on the corroborative information of your partner and your self-reporting, Mr Staios opines that the motorcycle accident may have resulted in you sustaining a mild traumatic brain injury, which has now resolved. Although Mr Staios does not conclude that your offending can be solely attributed to this brain injury, he does draw a direct causal link between your psychological presentation and the offending, stating:
‘His motorcycle accident and symptoms of a mild traumatic brain injury appear to have been further complicated as a result of post-traumatic stress disorder, leading to ongoing substance use as a means of coping and escapism. A combination of these factors appears to have been at play in the lead up to his current offending, which would have further impacted on his capacity for rational thought and ability to exercise appropriate judgement.’[14]
[14] Psychological Report, [7.2].
31Your counsel submitted that your sentence ought be moderated in light of the link between your ‘compromised decision-making and the offending’.[15] I accept that several of the principles enunciated by the Court of Appeal in R v Verdins[16] have application in your case. The Verdins principles are regarded as 'exceptional',[17] and it is for the offender to establish on the balance of probabilities the facts that enliven these principles. This will normally be done by calling expert evidence which must be 'rigorously scrutinised'.[18]
[15] Defence Submissions, [12].
[16] (2007) 16 VR 269.
[17] Charles v R [2011] VSCA 399 at [162].
[18] Brown v The Queen [2020] VSCA 212 at [6].
32In this case, I accept Mr Staios’s finding that, at the time of the offence, your complex psychological profile, in combination with your low average to borderline intelligence, had the effect of impairing your ability to exercise appropriate judgement, make calm and rational choices and think clearly.[19] Accordingly, your moral culpability and the need for specific and general deterrence is to be moderated to a modest degree.
[19] Romero v The Queen [2011] VSCA 258 at [13].
33Mr Staios states further that your psychosocial profile is characterised ‘by exposure to significant instability in the context of physical abuse, unhealthy attachment style, and sexual abuse in early childhood, leading to the integration of maladaptive coping mechanisms’.[20] In turn, Mr Staios concludes that your formation of ‘early childhood trauma’ is causally connected to your substance use, borderline personality traits, and the ‘commission of crime and periods of incarceration’.[21]
[20] Psychological Report, [7.3].
[21] Psychological Report, [7.3].
34The Court of Appeal regularly affirms the need for an appropriate evidentiary foundation before an offender’s disadvantaged background can be taken into account, without necessarily requiring the establishment of a nexus between the offending and the relevant background circumstances.[22] This has been described by the Court of Appeal as the ‘general approach’ to the role of childhood deprivation in sentencing.[23]
[22] See by way of example DPP v Terrick (2009) 24 VR 457 at 469; DPP v Herrmann [2019] VSCA 160 at [44].
[23] DPP v Herrmann [2019] VSCA 160 at [45].
35In line with the conclusions in Mr Staios’s report, which I note is uncontested, I accept that you experienced a highly dysfunctional and difficult childhood which has, to some degree, contributed to your psychological impairment and, by extension, to your offending.
36I do not, however, consider that your childhood circumstances, difficult as they were, reached the level of ‘profound childhood deprivation’ described by the High Court in the case of Bugmy.[24] Nevertheless, I take your circumstances of childhood abuse and disadvantage into account in assessing your moral culpability for this offending, while being mindful of the need to ‘avoid inappropriate doubling up’ of this modest mitigation with the discount afforded by the application of Verdins principles.[25]
[24] (2013) 249 CLR 571.
[25] DPP v Herrmann [2019] VSCA 160 at [82]; R v Nolan [2020] VSC 416 at [43].
Criminal History
37You have admitted a criminal history for a range of offences dating back to 2011. Although this history is extensive, it is not, for the most part, of direct relevance to this particular offending. It does, however, bear on your prospects for rehabilitation and the need for the sentence I impose to give effect to the principle of specific deterrence.
Prospects of Rehabilitation
38Your counsel submitted that your prospects of rehabilitation ought to be regarded as ‘positive’.[26] I accept your counsel’s submission that your rehabilitation is dependent upon the treatment of your PTSD, the availability of stable employment and housing upon your release from prison, and the ongoing support of your partner. However, having regard to your extensive prior criminal history and long history of substance abuse, I remain somewhat guarded as to your ongoing prospects of rehabilitation.
[26] Defence Submissions, [11].
39In 2022 you were assessed by ‘the Cottage’, a rehabilitation service, which deemed you to be an appropriate candidate for its drug rehabilitation program. I consider that your ongoing rehabilitation and prospects for a law-abiding future depend upon your ability to abstain from using ice. If the option remains available to you, I would strongly encourage you to complete the Cottage program upon your ultimate release from custody.
Current Sentencing Practices
40Your counsel provided the Court with a ‘Table of Comparable Cases’. The Table contains eleven cases decided since 1982 in various Australian Courts. It contains a brief summary of the offending but not whether the accused pleaded guilty or was sentenced after a trial. The sentences imposed vary from sentences of less than one year to a sentence in excess of 8 years. I have gained little assistance from this Table.
41Sentences for arson vary widely. In Salmi v The Queen, the Court of Appeal examined a number of cases.[27] That survey establishes that significant sentences of imprisonment are regularly imposed in cases of arson where the damage to property is significant (as it clearly is here) and the offending involves a degree of pre-meditation (as yours does). In Salmi itself a sentence of 5 years was reduced to 3 years and 6 months on appeal. The offender set fire to a shipping container in which the victim lived. The offending was motivated by ‘a misguided attempt to prevent [the victim] from continuing to supply drugs to [the offender’s] niece’.[28] There was some premeditation and the offender had pleaded guilty.
[27] [2020] VSCA 250 at [28]-[35].
[28] [2020] VSCA 250 at [7].
42While the value of the property destroyed is just one consideration in the assessment of the seriousness of a given case of arson, cases where the value of the property destroyed was in the vicinity of $1,000,000 are illustrative of relevant sentencing practices. In Beevers,[29] the property destroyed was a homestead which had been purchased for $1,250,000. The offender pleaded not guilty and there was significant prior planning of the arson in connection with insurance fraud. An aggregate sentence of imprisonment of four years and four months was confirmed on appeal for the offences of arson and attempting to obtain property by deception.
[29] [2016] VSCA 271.
43In Luciano v The Queen,[30] a house valued at $929,696 was destroyed in the context of threats toward the victim by the offender. The offender went to the property equipped with petrol. The offender had no prior convictions. A sentence of 4 years and 2 months was upheld on appeal.
[30] [2015] VSCA 173.
44In Davies v The Queen,[31] a bakery business valued in excess of $400,000 was destroyed. The offender, who pleaded not guilty, displayed no remorse and was assessed as a very high likelihood of re-offending. He also had a prior conviction for arson. On appeal, he was resentenced to six years.
[31] [2019] VSCA 66.
45Finally, in McPadden v The Queen,[32] a sentence of five years was described as ‘lenient’ by the Court of Appeal. The offender had procured his co-offender to commit arson of commercial premises for the purpose of insurance fraud. The lives of eight people were put at risk which gave rise to another charge of reckless conduct endangering serious injury. The offender pleaded not guilty, showed no remorse and had no prior convictions.
[32] [2018] VSCA 57.
Orders
46Taking into account the serious nature of your offending, its impact on Mr Clayton, your plea of guilty, current sentencing practices and the matters of mitigation discussed earlier:
(a) On the charge of arson you are convicted and sentenced to four years’ imprisonment;
(b) On the related summary offence you are convicted and fined $500; and
(c) You are to serve two years and eight months before you are eligible for parole.
47Pursuant to s 18(4) of the Sentencing Act 1991, I declare that the period of 409 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the Court’s records.
48Pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty and been found guilty after a trial, I would have imposed a sentence of five years and 3 months’ imprisonment and a non-parole period of 3 years and 6 months in respect of the indictable offence and a fine of $650 in respect of the related summary offence.
49I make the disposal order sought by the prosecution noting that it is not opposed.
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