Director of Public Prosecutions v Valli
[2021] VCC 902
•2 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01359
CR-20-01358
CR-20-01357
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW VALLI JUSTIN HAGLEY SCOTT HAGLEY |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 & 26 May 2021 |
| DATE OF SENTENCE: | 2 July 2021 |
| CASE MAY BE CITED AS: | DPP v Valli & Ors |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 902 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Arson – Intentionally Causing a Bushfire – Attempting to Cause a Bushfire – Serious Arson Offenders – 3 co-accused – 44 fires lit – significant property damage – Disproportionate Sentencing – Principle of Totality – Principle of Proportionality.
Legislation Cited: Sentencing Act 1991, s9, s5, s6, Part 2A; Crimes Act 1958, s197, s201(A).
Cases Cited:Worboyes v R [2021] VSCA 169; Matheas v R [2017] VSCA 330; R v Connell [1996] 1 VR 436; R v Tutchell (2006) A Crim R 25; R v Verdins & Ors (2007) 16 VR 269; O’Donohue v R [2013] VSCA 196; Tran v R [2012] VSCA 110; Muldrock v R [2011] HCA 39; Robson v R [2018] VSCA 256.
Sentence:Justin Hagley: Total Effective Sentence of 6 years and 4 months imprisonment with a non-parole period of 4 years and 2 months.
Scott Hagley and Andrew Valli: Total Effective Sentence of 6 years imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hancock | Office of Public Prosecutions |
| For Accused Valli | Mr M. Habib | Docherty Legal |
| For Accused J. Hagley | Ms S. Lacy | Stary Law |
| For Accused S. Hagley | Mr N. Rolfe | Rolfe Criminal Lawyers |
HIS HONOUR:
Introduction
1Justin Hagley and Andrew Valli, each of you have pleaded guilty to 14 charges of intentionally causing a bushfire and one charge of attempting to cause a bushfire.
2Scott Hagley, you have pleaded guilty to 13 charges of intentionally causing a bushfire and one charge of attempting to cause a bushfire. You were not present with the others on 28 February 2020 when the offences comprising Charge 8 were committed.
3The maximum penalty for intentionally causing a bushfire is 15 years’ imprisonment, and for attempting to cause a bushfire 10 years’ imprisonment.
4Justin and Scott Hagley are brothers, while Andrew Valli is a friend of both.
5Between 8 November 2019 and 27 March 2020, there were 44 fires lit and attempts to light another four fires at or near various roadsides between Bendigo and Shepparton. Except for part of December 2019 and January 2020, all of you travelled together to Shepparton from Bendigo on Friday's to participate in ten-pin bowling competitions. You travelled from Bendigo and to Shepparton in a car owned and driven by you, Justin Hagley.
6Since there were 48 incidents but only 15 charges, 10 of the charges are
rolled-up charges. A rolled-up charge is a charge in an indictment that alleges that the accused has committed more than one offence of the same type between specified dates[1]. In your cases, the rolled-up charges allege fires lit on the same date but at different places rather than fires lit on different days.
[1] Note to s9 of the Sentencing Act 1991.
Circumstances
7The circumstances surrounding each of the charges are set out in a document entitled 'Summary of Prosecution Opening', which is Exhibit A. Although I will not read out that document, it is important I summarise the circumstances in some detail. Throughout this summary, I have adopted the numbering of the fires used in the opening.
1)The first fire occurred on Friday 8 November 2019. The three of you travelled by car from Bendigo to Shepparton to bowl at a ten-pin bowling alley. The car was driven along the Midland Highway. On the journey home, at about 11.08 pm at Burnewang, one of you set fire to grass at the side of the highway. About 12 minutes later, a person saw the fire and called the Country Fire Authority (‘CFA’). The CFA extinguished the fire at a cost of $1,168.50. This fire is the subject of Charge 1.
2)On Friday 22 November 2019, the three of you travelled to the same bowling alley to bowl. On your return, at about 11.25 pm at Avonmore, one of you set fire to grass along the roadside. About five minutes later, the fire was seen and reported to the CFA. It attended and put out the fire at a cost of $2,921.25. This is part of Charge 2, which is a rolled-up charge.
3)On the same return trip, one of you started another fire near English's Bridge Road, Goornong. At about 11.38 pm it was seen, and the CFA called. It was put out at a cost of $12,269.25. This is also part of Charge 2.
4)On Friday 29 November 2019 at about 10.55 pm at Avonmore, one of you lit a fire in the grass at the side of the road. About five minutes later, the fire was seen and reported. The CFA put it out at a cost of $8,763.75. This is part of Charge 3. This is also a rolled-up charge.
5)On the same trip home, one of you lit a fire again near English's Bridge Road, Goornong. It was seen at about 11.35 pm, reported and extinguished by the CFA at a cost of $5,842.50. This is the other part of Charge 3.
6)At about 3.20 pm on Friday 13 December 2019 on the trip to Shepparton, one of you lit a fire in roadside grass on the Elmore-Barnadown Road, Goornong. The fire was seen, reported and put out at a cost to the CFA of $2,921.25. This is part of Charge 4, which is another rolled-up charge.
7)On the same trip, a short distance along that road at Avonmore, one of you threw a lighted sparkler into roadside grass. Although seen at 3.23 pm, shortly after it was lit, the fire still burnt 180 acres of land. It took considerable effort to bring the fire under control and cost to the CFA in extinguishing it was $249,542.50. Additionally, the fire destroyed fencing, a haystack, and hayshed valued at $64,500. This is also part of Charge 4.
8)Continuing your journey to Shepparton, one of you threw a lighted sparkler into roadside grass on the Midland Highway at Girgarre East. It burnt grassland and fencing worth $2,000. The fire was reported to the CFA, which put it out at a cost of $16,359. This is also part of Charge 4.
9)After bowling on that day, namely, 13 December 2019, you were driving back to Bendigo along the Midland Highway. At about 10.25 pm, one of you lit a fire in roadside grass at Carag Carag, near the Corop-Wanalta Road. This is part of Charge 5, which is a rolled-up charge.
10)Shortly afterwards, also on the Midland Highway at Carag Carag near Taylor Road, one of you lit another fire. This fire was seen and reported at about 10.43 pm. The CFA put out both fires at a cost of $21,033. This is part of Charge 5.
11)Further along the Midland Highway at Corop, one of you lit a fire in roadside grass. It was reported to the CFA at about 10.43 pm and extinguished at a cost of $23,370. This is part of Charge 5.
12)Further west at Burnewang, one of you lit another roadside fire. It was reported 10.46 pm and put out at a cost of $3,505.50 to the CFA. This is part of Charge 5.
13)Along the Northern Highway at Runnymede, one of you lit a roadside fire. It was reported at 10.46 pm and extinguished by the CFA. This is part of Charge 5.
14)A short distance further along the Northern Highway at Runnymede, one of you lit another fire which either extinguished itself or was put out by a person whose identity is unknown. This is part of Charge 5.
15)Also, on the Northern Highway at Runnymede, another fire was lit, observed and reported at 10.51 pm and extinguished at a cost to the CFA of $11,100.75. This is also part of Charge 5.
16)Still on the Northern Highway at Tooleen, one of you lit a fire at the base of a tree. Someone reported it at 11.10 pm. The CFA put out the ensuring fire at a cost of $12,853.50. Again, this fire is part of Charge 5.
17)On the Toolleen-Axedale Road, near its intersection with the McIvor Highway, one of you lit another fire. It was reported at 11.42 pm and put out at a cost to the CFA of $9,348. This is also part of Charge 5.
8Unfortunately, from the perspective of detecting you as the offenders, the bowling competitions stopped on 20 December 2019 and did not resume until 10 January 2020. The cessation of these competitions coincided exactly with a period of intense police activity through high visibility patrols along the Midland Highway and the Elmore-Barnadown Road.
18)You next travelled to Shepparton on Friday, 17 January 2020. While travelling back to Bendigo, one of you lit a fire at the side of the
Elmore-Barnadown Road at Goornong. It was reported at 11.40 pm and the CFA put it out at a cost of $3,605.50. This fire constitutes Charge 6.19)On Friday 21 February 2020, again while returning to Bendigo from Shepparton, you travelled to a memorial site for Mathew Hagley in Bonn Road, Rochester. One of you lit a fire there. It was reported and extinguished at a cost of $5,258.25 to the CFA. This fire constitutes Charge 7.
20)On Friday 28 February 2020, Justin Hagley and Andrew Valli were returning from Shepparton. Scott Hagley was in Melbourne at the time. On the Midland Highway at Carag Carag, one of you lit a roadside fire. It was reported and put out by the CFA at a cost of $13,437.75. This is part of Charge 8. This is another rolled-up charge.
21)Shortly afterwards at Corop, one of you lit a fire in a haystack. The haystack was about 29 metres from the side of the road. The haystack burnt for two days, destroying hay worth $26,775. The fire was reported. It took considerable effort to extinguish it at a cost to the CFA of $63,683.25. 82 CFA appliances attended. This is also part of Charge 8.
22)On 6 March 2020, the three of you were again together. While returning from Shepparton, one of you lit a fire in the roadside grass on the Bendigo-Murchison Road, at Moora. It was reported and put out at a cost of $2,337 to the CFA. This is part of Charge 9, which is a rolled-up charge.
23)Also, on 6 March 2020, one of you lit a fire on the Northern Highway at Tooleen. It was observed, reported at 11.34 pm and put out at a cost of $2,337 to the CFA. This is the other part of Charge 9.
9As has been the case of fires lit on the same day, on Tuesday, 10 March 2020, fires 24 to 27 are part of a rolled-up charge, being Charge 10. Unusually, on this day, you were travelling to Numurkah.
24)One of you lit a fire at the side of the Murray Valley Highway at Wyuna. It was put out by the CFA at a cost of $584.25.
25)and 26) One or other of you lit two fires along the Murray Valley Highway at Kotupna. They were put out at a cost of $28,044 by the CFA. They involved 30 CFA appliances.
27)One of you lit another fire on the Walsh's Bridge Road, Nathalia. The cost to the CFA in putting it out was $4,089.75.
10Fires (28) to (36) are the subject of the rolled-up charge, being Charge 11. These fires also occurred on 10 March 2020 but later in the evening than the last fire at Nathalia.
28)On the Northern Highway at Barnawm, one of you threw a lighted sparkler into roadside grass. A fire ensued. It cost the CFA $25,122.75 to put it out. This fire is part of Charge 11.
29)Further along the Northern Highway at Ballendalla, another roadside fire was lit by one of you. It costed the CFA $15,774.75 to put it out. This fire is part of Charge 11.
30)On Bonn Road, Burnewang, one of you set fire to a haystack. The CFA attended and burnt an area around the haystack to prevent the fire from spreading. The haystack burnt for some days. The destroyed hay was worth $21,945. The cost to the CFA for its efforts was $8,179.50. This fire is part of Charge 11.
11Fires (31) to (35) were lit along the Elmore-Mitiamo Road at Elmore at three separate locations. At two of the locations, fires were lit on both sides of the road. One or other of you lit those fires. In effect, there were five fire sites. It cost $14,022 for the CFA to put out these fires. These five fires are also part of Charge 11.
36)One of you lit a fire on a large embankment at the intersection of Sullivan Street and Belle Vue Road, Golden Square. It was reported and CFA put it out at a cost of $16,943.25. This fire is also part of Charge 11.
37)On Friday 13 March 2020, after bowling, you were driving back to Bendigo. On the Midland Highway at Carag Carag, one of you lit a roadside fire, costing the CFA $14,022 to put out. This fire constitutes Charge 12.
12Fires (38), (39) and (40) comprise Charge 13, which is also a rolled-up charge.
38)On Friday 20 March 2020, while returning from Shepparton, one of you lit a roadside fire at Carag Carag. Because it needed to be extinguished twice, it cost the CFA $16,358.50. This fire is part of Charge 13.
39)You continued to Runnymede where another fire was lit. This cost $3,505.50 to put out. This fire is also part of Charge 13.
40)You continued to Eaglehawk where a fire was lit in McCormack's Road, Eaglehawk. This fire was lit across the road from an underground gas main and 50 metres from a residence. It cost the CFA $10,516.50 to put it out. This is also part of Charge 13.
13Charge 14 comprises four fires, being fires (42), (45), (46) and (49), all occurring on Friday 27 March 2020.
42)On the Epping-Kilmore Road, past South Mountain Road, you, Andrew Valli, threw a lighted sparkler into roadside grass. You were encouraged to do so by Justin and Scott Hagley. It cost the CFA $4,089.75 to put it out. This fire is part of Charge 14, which is another rolled up charge.
14The reason it is said you lit the fire by throwing a sparkler was that the police were listening to your conversations through a surveillance device.
46)At 9.47 pm in Station Street, Clarkefield, a lighted sparkler was thrown into grass about 100 metres south of the intersection with Station Street. The fire was reported, and the CFA put it out at a cost of $5,258.25. This fire is part of Charge 14.
45)Six minutes later at 9.53 pm, in Lancefield Road, Bolinda, Justin Hagley used a lighted sparkler to start a fire. Ultimately, it was extinguished by the CFA at a cost of $7,011. This is also part of Charge 14.
49)At about 10.39 pm, on the Northern Highway near the intersection with Campbells Lane, Tooborac, Scott Hagley used a sparkler to start a fire with the encouragement of the others. The fire was extinguished by the CFA at a cost of $12,269.25. This fire is also part of Charge 14.
15Charge 15 comprises four attempts at lighting fires, being attempts numbered (41), (44), (50) and (52). This is also a rolled-up charge.
50)Also, on 27 March 2020 at 5.55 pm on the Hume Highway at Craigieburn, Scott Hagley threw a lighted sparkler from the car. It did not light a fire. This fire is part of Charge 15.
41)At 6.12 pm, on the Epping-Kilmore Road, approaching the
Wallan-Whittlesea Road, Andrew Valli threw a lighted sparkler from the car. It did not start a fire. This is also part of Charge 15.44)At 9.46 pm on Lancefield Road near Konagadenna Road in Clarkefield, Andrew Valli threw a lighted sparkler from the car. It struck a fence and did not start a fire. This is also part of Charge 15.
52)At 10.26 pm on the Lancefield-Tooborac Road at Emu Flat, a lighted sparkler was thrown from the car. It did not start a fire. This is also part of Charge 15.
16I have already described fire (49). This was the last fire lit by all of you before your arrest by members of the police at 10.55 pm on 27 March 2020.
Interviews
17Of the three, you, Justin Hagley, made the most admissions during the police interview. Nevertheless, it represented much less than full confession of your involvement in these offences.
18During your interview, you, Scott Hagley, made very limited admissions.
19During your interview, you, Andrew Valli, made no admissions. You either denied or did not comment upon allegations about the lighting of these fires or attempting to do so.
Victim impact statements
20There are four victim impact statements.
21On 13 December 2019, Kenneth Micheel, saw a fire engulf his shed and its hay. He rescued his sheep from that part of his property. He saw the fire move towards another shed containing hay and machinery. Fortunately, the CFA intervened. The fire also headed towards his home where his partner was. The fire stopped near another shed and his home was saved by CFA. In addition to the shed and its hay, about 180 acres was burnt and two kilometres of fencing was damaged. He noted a very considerable effort was needed to extinguish this fire. Apart from his time and the loss of 180 acres of feed, Mr Micheel places his loss at $60,400. I have already described this fire as number 7. The fire caused Mr Micheel's partner to be very upset and trembling. Fortunately, she left the home. Mr Micheel felt helpless, angry and frustrated. Both he and his partner will remember that day.
22Charlie Williams expresses anger and distress that someone would do this. He could not sleep while waiting for the next fire. He speaks of the financial impact on his company through paying staff to fight the fires with the increase of premiums on insurance and the possibility of not obtaining fire insurance. He is always on edge about needing to go to a fire to help put it out. He has a deep feeling of anger towards arsonists, being yourselves.
23Through these fires, Jamie Francis experienced anxiety, frustration, sleeplessness and exhaustion. As the second in charge of his local CFA unit, he felt responsible for the state of his team. For Mr Francis, there was an unexpected consequence. People in his area thought he lit the fires. This caused him to fear for his reputation and his continued involvement in the CFA. Plainly, he had nothing to do with the lighting or attempted lighting of these fires.
24Mr Francis lost hundreds of bales of fodder and the surrounding fences were destroyed. Although insured, he paid an excess and his insurance premiums have increased.
25Timothy Watson was hesitant to make a statement but realised these were deliberately lit fires as opposed to acts of nature. He noted an increased anxiety about the arsonists in his region. As a CFA member, he was always expecting a call out. There were many callouts which interrupted family and social life. The setting fire to a haystack was an increase on setting fire to roadside grass. It raised the level of anxiety generally.
Criminal history
26Between 25 October 2007 and 30 May 2018, you, Justin Hagley, have had five court appearances and have been convicted of 12 charges. Two of the court appearances concerned the charge of criminal damage by fire or arson.
27Your first appearance in this Court was on 27 October 2007 for six charges of arson. You were convicted and placed on a community-based order for two years with a condition to perform unpaid community work and several therapeutic conditions. The latter included a Justice Plan and participation in a juvenile fire awareness and intervention programme. Subsequently, you were convicted of contravening this order, but no penalty was imposed.
28On 31 March 2010, you were convicted of one charge of arson and sentenced to nine months' imprisonment to be served by way of an intensive correction order.
29Your last court appearance was at the Magistrates' Court at Bendigo on
30 August 2018. On two charges of sexual assault, you were placed on a two-year community correction order. The order included therapeutic conditions and a Justice Plan. The present offences were committed during the currency of the order.30You have never been sentenced to actual imprisonment. The intensive correction order was served in the community.
31Between 25 October 2007 and 3 September 2012, you, Scott Hagley, have had three court appearances, involving 13 charges.
32On 25 October 2007, you were convicted of five charges of arson and placed on a community based order for two years with unpaid community work, compliance with a Justice Plan and undertaking the same fire prevention programme which your brother was ordered to undertake.
33On 8 April 2009, you were convicted of contravening that order. It was cancelled and you were re-sentenced to a 12-month community based order with 189 hours of unpaid community work, compliance with the Justice Plan and undertaking the fire prevention programme. Your contravention of the order lay in the failure to complete some of its conditions within the period of the order.
34Your last appearance in a court involved charges of criminal damage, failing to answer bail, driving while disqualified, driving while suspended and two other driving offences. You were convicted and placed on a Community Correction order for six months with unpaid community work and therapeutic conditions. You were disqualified from driving for four months.
35You have never been sentenced to imprisonment.
36Between 15 May 2007 and 27 March 2020, you, Andrew Valli, have appeared in a court on 19 occasions and found guilty or convicted of 78 charges. Each of your appearances has been in the Magistrates' Court. You have been sentenced to imprisonment on three occasions, with the longest sentence being twelve months' imprisonment.
37You have contravened the conditions of a community based or community correction orders on nine occasions. On 27 March 2020, which was the day of your last offending, your contravention of a community correction order was proven, and the duration of the order was varied to 9 months.
Guilty pleas
38The Director of Public Prosecutions concedes the pleas of guilty of each of you to these charges were made at the earliest reasonable opportunity.
39These pleas of guilty are evidence of remorse for each of you.
40They also assisted the course of justice by bringing the determination of these charges against you to an end far earlier than if each of you had pleaded not guilty to some or all of the charges. This early termination of the proceedings allows other cases to be listed for trial sooner than if each of you adopted a different course. This is the utilitarian benefit of your pleas of guilty. This benefit is given greater weight now because your pleas of guilty have come during a time of crisis in the justice system due to the effects of the pandemic. These restrictions have seen a marked slowing in the Court's ability to determine criminal cases.
41Last Friday, the Court of Appeal stressed the importance of pleas of guilty like yours for the administration of justice[2]. It said[3]:
'We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty, to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
[2] Worboyes v R [2021] VSCA 169.
[3] at [35].
42Your pleas of guilty have had another effect. It relieves the prosecution witnesses from the need to give evidence at your trials. There are 34 such witnesses. Four of them are described as victims. For them, the experience of reliving the events affecting them would have been emotionally difficult.
43Overall, your pleas of guilty entitle each of you to a very substantial discount on the sentences which would have been imposed in their absence.
Pre-sentence detention
44Excluding today, each of you have spent 462 days in custody. I declare that there is 462 days of pre-sentence detention in respect of each of you.
Legal considerations
45Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed. They are to punish the offender to an extent and in a manner which is just in all of the circumstances; to deter the offender or other persons from committing offences of the same or a similar character; to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; to manifest the denunciation by the court of the type of conduct in which the offender engaged; to protect the community from the offender; or a combination of two or more of those purposes.
46Section 5(2) of the Sentencing Act sets out a number of matters to which a court must have regard, where relevant, when sentencing an offender. They include the nature and gravity of your offending, your culpability and degree of responsibility for the offences, the maximum penalties for the offences, current sentencing practices, your degrees of contrition, your pleas of guilty and their timing and your previous character.
47Sub-section 1 and sub-section 2 of s5 apply to all offenders who are sentenced. However, Parliament has legislated a special sentencing regime for 'Serious Offenders'. There are four kinds of 'Serious Offenders', one of which is a serious arson offender. The Director submits each of you is a 'Serious Arson Offender'. If so, then it would have significant consequences for your respective sentencing.
48If a person is a 'Serious Arson Offender' and is being sentenced for a relevant offence and the court considers a sentence of imprisonment is justified for that offence, then the court in determining the length of that sentence must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.
49The Director of Public Prosecutions seeks a disproportionate sentence in respect of the charges against each of you where relevant.
50In addition to those matters, s6E of the Sentencing Act provides that every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
51To determine whether these provisions apply to any of you, one must look at the meaning of the expressions 'Serious Arson Offender', 'Arson Offence' and 'Relevant Offence'.
52The expression 'Serious Arson Offender' means:
'An offender (other than a young offender) who has been convicted of an arson offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre'.
53None of you is a 'Young Offender'.
54An 'Arson Offence' means an offence to which clause 5 of Schedule 1 applies. Relevantly, the expression 'Arson Offence' includes the offence of arson under s197 of the Crimes Act 1958 and the offence of intentionally or recklessly causing a bushfire under s201A of the same Act. An attempt to intentionally cause a bushfire is also an arson offence.
55The expression 'Relevant Offence' in relation to a serious offender means, among other things, an arson offence in the case of a Serious Arson Offender.
56In considering whether an offender being sentenced is a serious offender, a court must have regard to a conviction or convictions for a relevant offence irrespective of whether recorded in the current trial or hearing; or in another trial or hearing; or in different trials or hearings held at different times; or in separate trials of different charges in the one indictment.
57Turning to each of you.
58Justin Hagley, you are a Serious Arson Offender. On 31 March 2010, you were sentenced to imprisonment over arson offences. It remained a sentence of imprisonment even though you were allowed to serve the sentence by way of an intensive correction order. For each of the 15 charges to which you have pleaded guilty, you are a Serious Arson Offender.
59Scott Hagley, you are also a Serious Arson Offender. You become one after I sentence you to imprisonment on the first charge.
60Andrew Valli, you are also a Serious Arson Offender. You too become one after I sentence you to imprisonment on the first charge.
Disproportionate sentence
61Counsel were unable to refer me to any case where the offender was a serious arson offender and the court imposed a disproportionate sentence under s6D of the Sentencing Act. As was noted in the case of Matheas v R[4], the imposition of a disproportionate sentence is a rare occurrence.
[4] [2017] VSCA 330 at [41].
62In R v Connell[5], Charles JA said of an earlier similar provision to s6D:
'Section 5A does not oblige a sentencing judge to ignore proportionality when sentencing a serious sexual offender. Rather the section requires the sentencing judge to regard the protection of the community, which was already ‘One of the most important results that the criminal law is designed to secure’…as the principal purpose. Proportionality remains…a very important consideration for the judge; but, where the judge is satisfied by acceptable evidence that a serious sexual offender is so likely to commit further crimes of violence (including sexual offences) that he constitutes a danger to the community, the judge may impose a sentence longer than that which would be justified by the principle of proportionality…'.
[5] [1996] 1 VR 436 at 443.
63In R v Tutchell[6], Ashley JA, in effect, applied the test stated by Charles JA after being satisfied beyond reasonable doubt as to necessary likelihood of future offending. This case was one the rare examples of the imposition of a disproportionate sentence.
[6] (2006) A Crim R 25 at [75].
R v Verdins
64In R v Verdins[7], the Court set out a non-exclusive list of six propositions in which impaired mental functioning, whether temporary or permanent, is relevant to sentencing. Your counsel relied upon various propositions.
[7] (2007) 16 VR 269.
65Referring to the impaired mental functioning as a condition, the Court said:
Proposition 1: The condition could reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that was so, the condition affected punishment that was just in all the circumstances and denunciation was less likely to be a relevant sentencing objective.
Proposition 2: The condition could have bearing on the kind of sentence that was imposed and the conditions in which it was to be served.
Proposition 3: Whether general deterrence was to be moderated or eliminated as a sentencing consideration depended upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
Proposition 4: Whether specific deterrence was to be moderated or eliminated as a sentencing consideration likewise depended upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
Proposition 5: The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
Proposition 6: Where there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this factor would tend to mitigate punishment.
66For Proposition 1, although unnecessary, it is usual to establish a causal link between the condition and the offending[8]. In Tran v R[9], the Court listed ways in which moral culpability may be reduced if it had the effect of:
(a) impairing the offender's ability to exercise appropriate judgment;
(b) impairing the offender's ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
[8] O’Donohue v R [2013] VSCA 196 at [25].
[9] [2012] VSCA 110 at [17] - ]19].
Intellectual disability
67Under the heading 'Sentencing mentally retarded offenders', the High Court in Muldrock v R[10] discussed the sentencing of mentally retarded offenders. The Court was at pains to point out that the usual diagnosis of a mild intellectual disability should not obscure the fact that Mr Muldrock was mentally retarded. The Court cited from a discussion paper published by the NSW Law Reform Commission to point out that the classification of mild intellectual disability may be of limited use and could be misleading to others. Perhaps that is why the Court used the harsher expression of 'mental retardation' rather than 'mental disability'.
[10] [2011] HCA 39 at [50]-[55].
68Mental retardation is relevant to several purposes of sentencing, including general deterrence and moral culpability. As the Court said[11]:
'Such a question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community'.
[11] At [54].
69To an extent, this observation covers the same ground as that covered by most of the propositions in Verdins' case.
Totality
70The principle of totality provides individual sentences must not only fall within the ambit of proportionality but in the case of multiple offences the total sentence must be proportionate to the totality of the offending[12].
[12] Fox & Freiberg’s Sentencing, 3rd offence edition at [3.75].
71In Matheas v R[13], Tate JA discussed the effect of s6E of the Sentencing Act on the totality principle. Her Honour said[14]:
'In achieving the purpose at which s6E is directed, the sentence did not, in my view, infringe the totality principle. This is because, first, when s6E is enlivened, as here…there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s6E, that is, full effect is not to be given to the totality principle as though s6E 'was not on the statute book'.
[13] [2017] VSCA 330.
[14] At [50].
Comparable cases
72One of the matters set out in s5(2) of the Sentencing Act is current sentencing practices. Helpfully, Counsel for you, Scott Hagley, produced a list of 11 cases in this Court and in the Court of Appeal dealing with bushfires and arson. He also produced a Sentencing Snapshot from the Sentencing Advisory Council dealing with arson. The maximum penalty for arson is the same as for intentionally causing a bushfire.
73I have read each of the cases and the Snapshot. As the Court said in the case of Robson v R[15]:
'While so-called comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case….'.
[15] [2018] VSCA 256 at [62].
74The same observation applies to the Snapshot.
Personal
Justin Hagley
75Justin Hagley, you are now 38. You were born and raised in the Bendigo area. You are the middle of three sons. Your father was a foundry worker. He was a gambler and was often absent from the home. Your parents divorced when you were 14 or 15. You had very little contact with your father. He died in 2015. Your mother worked as a personal carer and raised you and your brothers on her own.
76Your older brother, Mathew, died in 2010 in a motor vehicle accident.
77As to your education, you attended two primary schools. You struggled at primary school, but you did not repeat any grade. After primary school, you attended the White Hills Secondary College until Year 8 when you transferred to the Kalianna Special School. You attended this school until you were 18. You then attended a TAFE and completed a Certificate III in Education. You started two other courses at TAFE, in horticulture and horse training, but did not complete either.
78When aged 7 or 8, you were diagnosed with Tourette's Syndrome and Attention Deficit Hyperactivity Disorder.
79As to employment, you worked mainly as a truck driver until October 2016 when you became incapacitated for work on psychological grounds. For a time, you received weekly payments of compensation. However, these payments ceased, and they were replaced by the disability support pension.
80As to relationships, you have never had a long-term relationship. You have no children. Prior to entering custody, you lived with your mother and brother in Bendigo and had done so for the past three years.
81As to your use of substances, before entering custody, you smoked between 20 and 25 cigarettes daily. You started drinking alcohol regularly at 18 and, by 25, you were drinking heavily. Before entering custody, you were drinking four to six cans of pre-mixed bourbon nightly. You have never used illicit drugs.
82When you were about 28 or 29, you were a heavy gambler, often gambling your entire pay packet in a night. After two years of such gambling you stopped and have not resumed.
83While in prison, you worked as a cleaning billet. This stopped in last January 2021 because you suffered anxiety attacks. Between 7 May 2020 and 30 June 2020, you completed seven two-hour courses. Each of the certificates of completion describe the content of the modules. For example, the module 'Healthy Living' imparts information and strategies about healthy living to assist your time in prison and reintegration into the community for prosocial living.
84Your solicitors obtained a report from your treating psychiatrist and arranged an assessment by a forensic psychiatrist and neuropsychologist.
85Scott Eaton is a consultant psychiatrist, practising in Bendigo. Having been referred by your general practitioner, Dr Eaton has treated you since 18 June 2015. He wrote a report dated 18 August 2020.
86Dr Eaton diagnosed you as suffering from Post-traumatic Stress Disorder. This disorder is due to a motor vehicle accident in November 2014 where the truck you were driving collided with another vehicle. The driver of the other vehicle was killed and a passenger, a child, was seriously injured. You were not blamed for the collision at all. Dr Eaton has treated your disorder with anti-depressant medicines and psychotherapy.
87After the accident, you continued working as truck driver with the same employer but in increasingly difficult circumstances. However, it was the unfortunate circumstance of you working on a construction site that included the junction where the motor vehicle accident occurred that led to an increase in your depressive and anxiety symptoms. This resulted in your incapacity for work.
88Your symptoms worsened and despite a change in your
anti-depressant medicine, you attempted suicide through an overdose. You were admitted to hospital.89The severity of your symptoms has fluctuated. In May 2017, they worsened to the extent that you spent three weeks as an inpatient in a psychiatric unit.
90Since 2019, you have been treated with a therapy called 'eye movement desensitization reprocessing'. This therapy caused a major resolution of the symptoms of your disorder. By June 2019, your mood was considered normal. You remain on medicines and were monitored about every two months. From Dr Eaton's perspective, your disorder had not disappeared but was in remission.
91Your counsel did not submit there is a causal link between your disorder and your offending.
92Nicholas Owens is a forensic psychiatrist. On 11 January 2021, he interviewed you at the request of your solicitors.
93You told Dr Owens of your fascination with fires since you were about ten years old, lighting fires whenever you had the chance.
94Unsurprisingly, Dr Owens agreed with the diagnosis of Post-Traumatic Stress Disorder. He noted the remission of the condition in 2019 but also noted the deterioration of some of its symptoms while you have been in custody. But this deterioration, in his opinion, is not severe and is being appropriately treated. Nevertheless, he considers you are likely to find imprisonment more burdensome than someone who is not suffering from the disorder.
95Dr Owens noted the opinion of the neuropsychologist, Martin Jackson, that you are not intellectually disabled although aspects of your intellectual functioning are in the lower end of the normal range. There was no evidence of impairment to your adaptive functioning.
96Dr Owens was not prepared to diagnose pyromania on the basis of the available evidence, partly due to your answers to his questions and possible existence of traits of an antisocial personality disorder. Despite this, he assessed your risk of committing future fire setting behaviour as high in the absence of targeted psychological treatment with such treatment being available in the Problem Behaviour Program at Forensicare.
97Dr Owens denied any causal connection between your Post-Traumatic Stress Disorder and your offending because you yourself do not see a connection and, in any event, from the available information he considered your disorder was in remission at the time of your offending.
98Martin Jackson is a neuropsychologist. On 7 December 2020, he assessed you at the request of your solicitors. Mr Jackson disagreed with the 1996 assessment that you have a mild intellectual disability. You do not. Your full-scale IQ is 73, which is in the borderline range. For most of the cognitive areas, you are in the borderline or low average range. For three, you are in the average to high average range. Only for one area, being immediate memory span, are you in the extremely low range. Overall, you are in the borderline range. The borderline range means that more than 90% of the population performed better than you.
99You did not have a cognitive profile that related to a high risk of re-offending. Even though you reported symptoms of extreme depression, severe stress and moderate anxiety, there was no evidence of these symptoms affecting your cognitive impairments. He concluded[16]:
'…I am of the opinion that it is highly likely that Mr Hagley continues to suffer symptoms of posttraumatic stress disorder, but he does not have an intellectual disability or any other mental or cognitive impairment. He is simply a person of borderline to low average abilities, with one particular strength and one particular weakness.'
[16] At pp 16-17.
100He considered you had no empathy.
Peter Jackson
101Peter Jackson has known you for twenty years. You met him while both of you worked for Hymix Concrete. After Mr Jackson left Hymix Concrete in 2014, you have remained friends, meeting monthly.
102Mr Jackson is aware of the charges you face. While in custody, he has spoken to you on the phone and visited you. To him, you have expressed remorse for what you had done and for letting him down as a friend.
103Plainly, Mr Jackson has been a good friend, offering you advice when it is sought. When in his presence, you have displayed good sense. Presumably, he will remain your friend after you are released from prison. This would be a positive factor in your rehabilitation.
Verdins
104You, Justin Hagley, rely on propositions 5 and 6 of the Verdins' case and this opinion of Dr Owens[17]:
'Given the symptoms associated with PTSD, especially anxiety and hypervigilance, which can be worsened by exposure to stress, I think that Mr Hagley would be likely to experience imprisonment as more burdensome than an individual without this diagnosis. This is borne out by the fact that his mental health has deteriorated to some extent since he was incarcerated'.
[17] Report dated 17 February 2021 at [82].
105The last four paragraphs on p7 of Mr Jackson's report summarises four psychiatric nursing entries between 5 May and 1 September 2020. After 5 May, the reports note worsening symptoms culminating on 1 September with a psychiatric nurse gaining the impression of worsening Post-Traumatic Stress Disorder symptoms. He increased the dose of Sertraline, an anti-depressant medicine to 200 mg. On 5 May, the dosage of this medicine was 50 mg. These reports support Dr Owens' observation of deteriorating mental health since incarceration.
106I consider both propositions are engaged by those matters. They act to moderate the sentences I would otherwise impose.
Remorse
107Your friend, Peter Jackson, has had conversations with you while you have been in custody. He says:
'During these conversations Justin has expressed his remorse for what he has done and apologised to me for letting me down as a friend and described to me his visits with the counsellor'.
108You said to Dr Owens[18]:
'I feel very remorseful about what I've done…I wish I could turn back the clock…I feel like killing myself because of it'.
[18] At [43].
109You have undertaken programmes while in prison.
110Mr Jackson said you did not really demonstrate any specific remorse[19].
[19] Report dated 22 December 2020 at p 19.
111Despite Mr Jackson's observation, overall, I consider you are remorseful for your offending. This translates into a willingness not to re-offend in this nature in the future.
112Genuine remorse suggests an offender will strive not to re-offend. The offender may do things which will rehabilitate him or her.
Rehabilitation
113As to your prospects of rehabilitation, you have a history of lighting fires with the last incident 10 years ago.
114Dr Owens said of your risk of further fire setting[20]:
'…I would assess the risk of further fire setting behaviour in the absence of targeted psychological treatment, as high. It is probable that his fire-setting behaviour is partly rooted in constitutional difficulties with impulse control which have been present since childhood, and partly rooted in social skills and emotional regulation difficulties and affiliation with negative peer influence, likely associated with personality disorder'.
[20] At [84].
115As to targeted psychological treatment, he said[21]:
'Engagement in comprehensive psychological assessment and treatment specific to his fire-setting behaviour (as guided by the Problem Behaviour Program at Forensicare) is in my view an essential component of any viable community management plan. In addition, he would be assisted by further psychological treatment of anxiety symptoms and interventions aimed at improving his social and relationship skills and ability to regulate emotions and impulsive behaviour. He will also need ongoing psychiatric treatment for PTSD'.
[21] At [85].
116According to Mr Jackson, you have the cognitive capacity to rehabilitate. In fact, you have shown signs of that capacity through the completion of a series of what I would call 'therapeutic' courses while in prison. You have shown another side of your character through assisting for eight months an elderly prisoner with dementia.
117It seems treatment of fire-setting behaviours is a specialised area of expertise. From Dr Owens' perspective, the expertise lies, at least, with a programme conducted by Forensicare. In light of Dr Owens' comments, I would expect Corrections Victoria to take concerted steps to bring this treatment to bear while you are in custody.
118Given your level of risk of future fire-setting behaviour being high, the availability of treatment in custody, your remorse, your efforts made while in custody and the support of your longstanding friend, I consider your prospects of rehabilitation as reasonable.
Scott Hagley
119You are 36. You were born and raised in the Bendigo area. Your parents divorced when you were 14. Since their separation, you have lived with your mother bur retained contact with your father until his death.
120After attending mainstream primary and secondary schools, you also attended the Kalliana Special School for the rest of your secondary education. You were bullied in the mainstream schools and engaged in fights. You left Kalliana at 18 and then spent three years at a TAFE.
121You have had relationships. The longest lasted three years between the ages of 26 and 29. You have a nine-year-old daughter. Unfortunately, you have had no contact with her for the past five years.
122You have worked in a supermarket and driving cement trucks. Since the age of 30, you have received a disability support pension.
123Your oldest brother died when you were about 26. His death depressed you, resulting in your general practitioner prescribing an anti-depressant medicine, which you took for about three years. Since January 2021, you have taken an anti-depressant medicine. It has helped your mood by calming you. You are currently seeing a psychologist.
124Of smoking, drinking and gambling, only gambling is a problem for you. You try to avoid opportunities to gamble. Using illicit drugs has not been an issue for you.
125You suffer from Type 2 diabetes, for which you are medicated. You have had three operations to your right foot. Unfortunately, you have been left with chronic pain which reduces your ability to function.
126Your solicitor arranged for you to be assessed by a psychiatrist and a neuropsychologist. Their reports were tendered.
127Nina Zimmerman is a consultant psychiatrist. On 13 November 2020, she interviewed you at the request of your solicitors[22].
[22] Report dated 10 January 2021.
128Dr Zimmermann believes you have a mild intellectual disability. She diagnosed you as suffering from a Gambling Disorder. Also, significantly for the purposes of sentencing, she diagnosed you as suffering from a recognised psychological disorder, pyromania. She says your involvement in these offences is directly related to your pyromania disorder. This disorder was responsible for your involvement in every instance of arson.
129She noted your regret at the lighting of these fires.
130Dr Zimmerman believes you require treatment to reduce the future risk of you engaging in fire setting behaviour. She too notes that Forensicare has a specialist clinic called the Problem Behaviour Clinic. This clinic would be ideal for treating you. She also recommends counselling for your gambling and the assistance of Disability Services to help you develop a range of social and occupational activities.
131Finally, she notes the impact of being in prison is likely to be greater on you than someone who does not have an intellectual disability, saying[23] –
'He has no prior experience of imprisonment and his vulnerability to misreading social cues and being open to being manipulated by others due to his intellectual disability will be heightened in prison'.
[23] At [62].
132Evelyn Chen is a neuropsychologist. At the request of your solicitor, she interviewed you on 6 May 2021[24]. After an extensive series of tests, she also assessed your full-scale IQ at 78 and your General Ability Index at 71. Overall, she considered you had a mild intellectual disability.
[24] Report dated 17 May 2021 .
133She considered your intellectual disability was unlikely on its own to have caused your offending. Your intellectual disability does not prevent you from learning pro-social behaviours. However, it does impair your social skills, creates difficulty with regulating your behaviour and renders you vulnerable to peer pressure. All of which increase your likelihood to re-offend.
134Your poor verbal skills and impaired social functioning mean you will be disproportionately affected by long-term imprisonment than persons of average intelligence.
135Your counsel relied upon each of the propositions in Verdins' case. Dr Zimmerman diagnosed you as suffering from pyromania and a Gambling Disorder. She noted the high occurrence of the latter where the former exists. Other than that, the two matters affecting sentencing is the pyromania and your intellectual disability. She says[25]:
'Mr Hagley's involvement in the lighting of numerous fires is directly related to his diagnosis of Pyromania and fascination of fire and flames. I believe that his impaired social skills and vulnerability to being peer pressure associated with his intellectual disability will have increased the likelihood that he went along with antisocial behaviour but do not feel that, in the absence of his pyromania that Mr Hagley would have been involved in such behaviour in his teens, twenties and thirties. His mild intellectual disability is likely to be associated with impaired social judgment, and an impaired ability to regulate his behaviour, contributing to his offending'.
[25] At [64].
136The diagnosis of Pyromania reduces your moral culpability for the offences. Your intellectual disability reduces general deterrence and specific deterrence. However, the diagnosis of Pyromania is a two-edged sword. In order to make the diagnosis, Dr Zimmerman sets out certain diagnostic criteria of the disorder[26]:
'Mr Hagley has deliberately and purposefully lit fires (i.e. engaged in fire-setting behaviour) on more than one occasion and this has resulted in the crime of arson (illegal fire-setting). He has experienced tension prior to the act and attraction to the fire and flames. The fire-setting had no other motivation such as monetary gain or to conceal other criminal activity.”
[26] At p 6.
137Plainly, those criteria do not work to reduce the need to protect of the community. In fact, it brings to the forefront that purpose of sentencing.
138Your poor verbal reasoning and impaired social skills mean you will be disproportionally affected in prison than persons of average intelligence. Since there are appropriate units in prisons for persons with disabilities and I cannot say whether you will be placed in one during the entirety of your sentence, it seems possible, I cannot find either proposition 5 or 6 applies.
139Speaking of you, Scott Hagley, Dr Zimmerman noted[27]:
'Mr Hagley was confident that he would never light a fire again, explaining that, "I hate jail so it won't happen again", stating that he has never experienced incarceration before. He said he felt "bad and regretful" about his offending because "It wasn’t my property". He did not feel that there was any possibility that he could have hurt livestock or a fire-fighter but said that the property damage was wrong'.
[27] At [42].
140To Ms Chen, you said lighting fires was wrong[28].
[28] At p 7.
141In a strict sense, the passage from Dr Zimmerman's report is not a strong statement of remorse. However, it contains a statement of determination not to light a fire again because of your hatred of imprisonment. For a person with your disabilities, this is a strong statement.
142Your counsel submitted your long-term prospects of rehabilitation as mixed. Ms Chen thought your ability to learn and remember are intact. You showed some insight into your offending, particularly, the realisation of the consequences for you. Your short temper and your inability to deal with your health and psychological issues mean you require regular psychological help to maintain your mental health and reduce the risk of re-offending.
143Then one comes to the diagnosis of pyromania. Dr Zimmerman sees treatment for this disorder as crucial. She also refers to the Problem Behaviour Clinic or programme run by Forensicare as the source of such treatment. As with your brother, I expect Corrections Victoria to act on her recommendation.
144Despite your counsel's submission, I would assess your prospects of rehabilitation as reasonable.
Andrew Valli
145Andrew Valli, you are 32. You too were born and raised in Bendigo. You are the youngest of six children, four sisters and a brother. Your parents separated 10 years ago and each re-partnered. You now have eight half-siblings. Both your full brother and your father have died. You had a good childhood with loving parents.
146You attended primary school. Shortly after starting secondary school, you transferred to Kalliana Special School where you remained until Year 9. Unlike Justin and Scott Hagley, your formal education ended there.
147After leaving school, you worked in concreting, tyre fitting and landscape gardening. Since 16, you have received the disability support pension. Apparently, you cannot work more than 14 hours a week and receive this pension. While in custody, you worked as a timber billet.
148You have drunk alcohol since 16. Your drinking increased after the death of your brother and you were drinking heavily until you met Tahlia Challis about 18 months ago. You were then drinking up to half a slab of beer daily. Since meeting Ms Challis you have not drunk alcohol. You tried methylamphetamine at 16 or 17 and became a daily user at 20 and remained so until remanded into custody, using 5 to 6 points daily.
149Between 2016 and 2019, you have had six admissions to psychiatric units in Bendigo with four of them to the Alexander Bayne Centre. It appears the most significant was your admission as an inpatient between 14 and 20 June 2019. The reason for the admission was noted as:
'…following a substantial overdose of medications and self-harm to his wrist in the context of intrusive thoughts of his brother's death on a background of multiple suicidal and self-harm behaviours, substance abuse and multiple forensic issues'.
150You formed a relationship with Ms Challis and have remained in it. Ms Challis gave birth to your son, Brydan, on 4 November 2020. Unfortunately, he lived for only a short while, dying on 21 January 2021 from Sudden Infant Death Syndrome. You were allowed to attend his funeral but were unsuccessful in an earlier bail application, while your son was very ill. Ms Challis herself experienced a very difficult pregnancy. Undoubtedly, this was a source of concern to you while in custody and unable to help her.
151You have two sons from your relationship with Danielle. They are 7 and 9. One is cared for by your mother and the other by your sister, Rebecca. Apparently, Danielle wants nothing to do with them. Ms Challis has two or three children from other relationships, but she does not have their care.
152On your release from custody, you want to obtain employment, the care and control of your sons and live with them and Ms Challis.
153You are presently taking an anti-depressant medicine.
154While in prison, you have provided eight urine samples over nearly a year. On analysis, none disclosed the presence of any well-known illicit drugs. You have also completed four one-day courses and completed a unit called, 'Use hygienic practices for food safety' at Federation University.
155Your solicitor arranged for you to be assessed by a psychologist and neuropsychologist.
156Carla Lechner is a clinical psychologist. On 16 December 2020, she interviewed you[29].
[29] Report dated 21 December 2020.
157She found you could not explain why you offended, quoting you as telling her:
'…not much to say, I've known them for years, play ten-pin bowling together and…just stupid…started throwing sparklers out the window…I've pleaded guilty and that's all I'm saying…I thought it was a bad idea, I'd take it back if I could'.
158She diagnosed you as suffering from Stimulant Use Disorder, which is in early remission because you are in prison or what she calls a 'controlled environment'. You used drugs to block out negative feelings.
159To her, your drug use at the time of the offending reduced your ability to make sound judgments and decisions and reduced your ability not to act on impulses. Nevertheless, you were not pressured to offend, and you were aware of the potential danger.
160Ms Lechner was not prepared to diagnose pyromania because you did not show the symptoms or behaviour to justify the diagnosis.
161She recommended a neuropsychological assessment, which your solicitor duly arranged.
162Linda Borg is a clinical neuropsychologist. On 9 February 2021, she interviewed and tested you at the request of your solicitor[30].
[30] Report dated 2 March 2021.
163Dr Borg administered a variety of tests and concluded you have a full-scale IQ of 69 and a general ability index of 67. Dr Borg diagnosed you as having an intellectual disability of mild severity. Indicative of your general ability index, your ability to read and write is at Grade 2 level.
164Strictly speaking, Dr Borg saw no causal link between your intellectual disability and your offending. However, she considered your impulsivity and impaired reasoning skills may have contributed to your offending. For example, you consider the consequences of your actions after you have acted, not before.
165Within her province of neuropsychology, she considered it highly unlikely your cognitive difficulties would be affected by imprisonment.
166She also considered your antisocial personality features were present when you offended.
167Your strengths are in problem solving and planning while you are weaker in reasoning and impulse control. These weaknesses mean the risk of you offending if the opportunity arises remains. The level of that risk is at least moderate. The level of risk will increase if you return to drug or alcohol abuse.
168Dr Borg did not consider you had an acquired brain injury.
169Finally, upon release from prison, Dr Borg recommended:
(i)you undertake an extended residential rehabilitation programme to prevent you returning to drug use; and
(ii)psychological counselling to learn basic emotional management techniques.
170Since you wish to care for your sons, she suggested you may need support to foster their development because of your cognitive limitations and poor emotional coping skills.
171You rely on propositions 1 and 3 of the Verdins' case.
172As to proposition 1, you rely on the first three factors set out in paragraph 25 of O’Donohue's case. They are:
(a) impairing the offender's ability to exercise appropriate judgment;
(b) impairing the offender's ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited.
173Ms Lechner considered you would have extreme difficulty in consequential and reflective thinking: you act impulsively and your ability to make sound judgments is poor.
174Although the language of Dr Borg is less definite, your impulsivity and impaired reasoning skills mean you are likely to act without thinking about the consequences. This is worsened if you are affected by alcohol or drugs or are emotionally distressed or aroused[31].
[31] Report at [39ii].
175On the basis of these opinions, I agree that the identified factors are satisfied and necessitate a reduction in your moral culpability for the offences.
176As to proposition 3, general deterrence should be moderated due to your intellectual impairment. As I said earlier, general deterrence involves the making of an example of an offender for others. You are not a good example due to your impairment. However, the degree of your impairment is not such as to eliminate general deterrence.
177What you told Ms Lechner and Dr Borg is good evidence of remorse. Ms Lechner recorded the following[32]:
'When pressed about his offending, Mr Valli almost left the assessment, stating "This is doing my head in…it makes me upset because I've fucked up…I can't support my family…I don't know what made me do it". Mr Valli stated he feels "Really bad" about the property damage caused – "If I could help make it up to them (victims) I would"'.
[32] At p 5.
178I interpret your unwillingness to discuss the matter as indicative of your shame for what you have done and is good evidence of genuine remorse.
179I have already referred to Dr Borg's assessment of your risk of re-offending generally[33]. She did not specifically mention the risk of fire setting behaviour. She considered your impulsivity, impaired reasoning, cognitive inflexibility and underlying antisocial personality elements contribute to her risk assessment. If you return to drug or alcohol use, then the level of risk would likely increase.
[33] See [39xiii],
180Your substance abuse is largely untreated. You have not undertaken a drug and alcohol course since 2015. But you have used your time in custody profitably. You have provided urine samples for testing. The results have been uniformly negative. Despite the fact that there is a gap in testing between September 2020 and February 2021 and between March and April 2021 is unexplained, I would not infer anything against you in those periods. You have simply abstained from the use of illicit substances while in prison.
181You committed some of the present offences while subject to a Community Correction order. The original Community Correction order was varied after you were found guilty of contravening it. You were given another chance to complete offending behaviour programme, alcohol and drug counselling and engagement with a psychologist. However, a central term of a Community Correction order is that you must not commit an offence punishable by imprisonment during the period of the order. This you failed to do on a very large scale.
182Overall, your prospects of rehabilitation depend in part upon what is offered and successfully undertaken in treatment for your drug use and psychological counselling. You have had several opportunities to address your substance and offence-specific behaviours and yet you re-offend. Nevertheless, you have identified a path forward after your release from custody. You want to re-unite with Ms Challis and obtain the care and control of your sons. The latter may not be a straightforward as you suppose. You lack parenting skills and will need help. You may well receive it. As with Justin and Scott Hagley, your prospects of rehabilitation are reasonable.
Discussion
183As I said earlier, s5(2) of the Sentencing Act sets out a number of factors a court will take into account when sentencing. I have already dealt with some of the factors: the maximum penalty for the types of offences; current sentencing practices; the impact of the offence on certain victims, their personal circumstances and the loss or damage resulting directly from the offences; the timing of the pleas of guilty and the criminal histories of each of you.
184Turning to the nature and gravity of the offences.
185The damage caused by the fires was collectively enormous. An indication of this is the cost to the CFA in extinguishing the fires was a total of $657,448.50. Of course, the cost varied from fire to fire with the lowest, $584.25 and the greatest, $249,542.50.
186With bushfires, there exists the potential for great damage to property, injury or even loss of life. From my reading of the summary of prosecution opening, it appears all of the fires were spotted quickly, notified promptly and thereafter the CFA acted promptly to extinguish them. Absent those factors coming together, the potential for greater damage existed. None of you can legitimately rely on the lack of damage in relation to many of the fires. It was the action of others which enabled that to occur. Nevertheless, some of the fires caused considerable damage despite the considerable efforts to extinguish them.
187Viewed globally, the gravity of the offending was very serious, and that observation applies to each of you.
188As to culpability and degree of responsibility, although there was only one motor vehicle for the commission of these offences and it belonged to you, Justin Hagley, and you were the driver throughout, through your respective counsel, none of you accuses the others of being the ringleader. Objectively, you are all equally responsible.
189Earlier, I gave the bare outline of the fires and the attempted fires. It was taken from the summary of prosecution opening. After police were able to install a listening device in the motor vehicle, a clearer understanding of your attitudes to lighting or attempting to light the fires emerge. Collectively, you were determined to light as many fires as possible. You were keen to see the spectacle of a fire. You were oblivious to the potential consequences of a fire.
Delay
190Each of you has spent the same time in custody. Excluding today, it is
462 days. For each of you it is a lengthy period of uncertainty as to the sentence.
Conditions in custody
191Each of you has been in custody during the COVID-19 pandemic and endured the additional restrictions imposed by correctional authorities for sentenced and unsentenced prisoners. Generally, these restrictions affected personal visits from family and friends and the undertaking of programmes. Since the threat of the virus remains, the possibility of restrictions in some form remains. These restrictions make the experience of imprisonment harder.
192In your case, Mr Valli, you suffered the additional burden of being absent from your sick partner and newly born child. You were unable to leave custody to see your son as his health declined. You were unable to assist either. The only thing you were able to do was attend his funeral.
Disproportionate sentences
193Finally, I return to the issue of disproportionate sentences. Charles JA in Connell’s case spoke of the degree of likelihood of re-offending in terms of
'so likely'. This is a significant degree of likelihood, well past the civil standard of balance of probabilities. Ashley JA required the degree of proof of likelihood as beyond reasonable doubt.194I have assessed your individual prospects of rehabilitation. I have examined your history of criminal offending. None of the practitioners discuss the deterrent effect of long sentences, which must be significant. I am not satisfied, beyond reasonable doubt, that each of you is so likely to commit an arson offence in the future that disproportionate sentencing is justified.
195In any event, there is really no need for disproportionate sentencing. Each of you is guilty of a large number of offences condensed into 14 or 15 charges. There is ample scope to protect the community in sentencing on those charges without recourse to disproportionate sentencing.
Cumulation
196As I said earlier, s6E of the Sentencing Act requires cumulation of sentences unless the court otherwise directs. I am conscious of the totality principle but also of its moderation in order to give effect to the legislative intention in s6E.
Parity between offenders
197As you will see shortly, your total effective sentences are not exactly the same. What favours or disfavours one person may not exist in the others. There are a number of factors common to the three of you.
198As to your objective responsibility for the offences, I have treated each of you equally although you, Scott Hagley, were not involved in Charge 8. Overall, the offences are extremely grave. Your pleas of guilty have each merited a very substantial discount on the sentences. Although each of you functions at a low intellectual level, there are small differences in your intelligence quotient, your general ability indices and your cognitive abilities. Each of you has some strengths and some weaknesses. While two of you have been diagnosed with a mild intellectual disability, you, Justin Hagley, have not. Psychologically, you are different. Two of you suffer from recognised psychological disorders while you, Andrew Valli, do not. The application of the propositions in the case of Verdins varies between you.
199Your criminal histories differ. You, Justin and Scott Hagley, have previous convictions for arson and you, Justin Hagley, received a sentence of imprisonment albeit served by way of an intensive correction order for that offence. On the other hand, you, Andrew Valli, have no such convictions. However, you have appeared in courts far more frequently and penalised for far more charges than the others. You, too, have been sentenced to imprisonment while Justin and Scott Hagley have not.
200The impact of Part 2A of the Sentencing Act affects each of you to very much the same extent.
201Each of you has spent the same period in custody on remand. All of that time has been affected by the restrictions caused by the pandemic. For you,
Mr Valli, these restrictions have been particularly hard. Your partner had a difficult pregnancy and you could not help her. Your newly born son was ill and died and you could not help him or even be with him. You were allowed to attend his funeral which emphasised your powerlessness and sadness.
Sentence
Justin Hagley
Charge 1: 1 years' imprisonment.
Charge 2: 2 years' imprisonment.
Charge 3: 2 years' imprisonment.
Charge 4: 3 years' imprisonment. This is the base sentence.
Charge 5: 3 years' imprisonment.
Charge 6: 1 years' imprisonment.
Charge 7: 1 years' imprisonment.
Charge 8: 2 years' imprisonment.
Charge 9: 1 years' imprisonment.
Charge 10: 2 years' imprisonment.
Charge 11: 3 years' imprisonment.
Charge 12: 1 years' imprisonment.
Charge 13: 2 years' imprisonment.
Charge 14: 2 years' imprisonment.
Charge 15: 1 year and 6 months' imprisonment.
202On Charges 5 and 11, eight months of each sentence will be served cumulatively upon the base sentence and upon themselves. On Charges 2, 3, 8, 10, 13 and 14, four months of the sentences on those charges will be served cumulatively upon themselves and the sentences on the base sentence and the cumulative portion of Charges 5 and 11. This makes a total effective sentence of six years and four months' imprisonment. I will set a non-parole period of four years and two months' imprisonment.
Scott Hagley
Charge 1: 1 years' imprisonment.
Charge 2: 2 years' imprisonment.
Charge 3: 2 years' imprisonment.
Charge 4: 3 years' imprisonment. This is the base sentence.
Charge 5: 3 years' imprisonment.
Charge 6: 1 years' imprisonment.
Charge 7: 1 years' imprisonment.
Charge 9: 1 years' imprisonment.
Charge 10: 2 years' imprisonment.
Charge 11: 3 years' imprisonment.
Charge 12: 1 years' imprisonment.
Charge 13: 2 years' imprisonment.
Charge 14: 2 years' imprisonment.
Charge 15: 1 year and 6 months' imprisonment.
203Eight months of the sentence on Charges 5 and 11 will be served cumulatively upon the base sentence and themselves. On Charges 2, 3, 10, 13 and 14, four months of the sentences on those charges will be served cumulatively upon themselves, the base sentence and Charges 5 and 11.This makes a total effective sentence of six years’ imprisonment. I will set a non-parole period of four years’ imprisonment.
Andrew Valli
Charge 1: 1 years' imprisonment.
Charge 2: 2 years' imprisonment.
Charge 3: 2 years' imprisonment.
Charge 4: 3 years' imprisonment. This is the base sentence.
Charge 5: 3 years' imprisonment.
Charge 6: 1 years' imprisonment.
Charge 7: 1 years' imprisonment.
Charge 8: 2 years' imprisonment.
Charge 9: 1 years' imprisonment.
Charge 10: 2 years' imprisonment.
Charge 11: 3 years' imprisonment.
Charge 12: 1 years' imprisonment.
Charge 13: 2 years' imprisonment.
Charge 14: 2 years' imprisonment.
Charge 15: 1 year and 6 months' imprisonment.
204Eight months of the sentences on Charges 5 and 11 will be served cumulatively upon the base sentence and themselves. On Charges 2, 3, 8, 10 and 13, four months of the sentences on those charges will be served cumulatively upon themselves, the sentences on the base sentence and on Charges 5 and 11.This makes a total effective sentence of six years' imprisonment. I will set a non-parole period of 4 years' imprisonment.
S6AAA
205In the absence of your pleas of guilty, I would have sentenced you, Justin Hagley, to nine years' imprisonment with a non-parole period of six years and one months' imprisonment.
206For you, Scott Hagley, I would have sentenced you to eight years and seven months with a non-parole period of five years and ten months.
207For you, Andrew Valli, I would have sentenced you to eight years and seven months' imprisonment with a non-parole period of five years and ten months.
S6F serious offender status
208For you, Justin Hagley, I will cause to be entered into the records of the Court that for all 15 charges you were sentenced as a Serious Arson Offender.
209For you, Scott Hagley, I will cause a similar entry in relation to Charges 2 to 7 and 9 to 15.
210For you, Andrew Valli, I will cause a similar entry in relation to Charges 2 to 15.
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