Director of Public Prosecutions v Wah
[2013] VCC 976
•9 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02137
CR-13-01267
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN WAH |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2013 | |
DATE OF SENTENCE: | 9 July 2013 | |
CASE MAY BE CITED AS: | DPP v. Wah | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 976 | |
REASONS FOR SENTENCE
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Subject: Criminal Law; Sentence
Catchwords: Guilty plea to two charges of arson on different occasions – one minor, the other caused internal damage to vacant house; accused aged 41, alcoholic and intoxicated at the time; long-term depression; Verdins principle applies; four years since offence with no further offending and significant rehabilitation; CCO completed in past.
Sentence: Total effective sentence 2 years and one month imprisonment wholly suspended for 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Stevenson | |
| For the Accused | Ms R. Harper |
HER HONOUR:
1 Darren Wah, you have pleaded guilty to two charges of arson. They appear on two separate indictments but it is convenient to refer to them as Charges 1 and 2, Charge 1 being the first in time. The maximum penalty for arson is 15 years' imprisonment.
2 Briefly the facts are that on 10 December 2008 you went to a vacant house at 32 Leamington Crescent, Caulfield which was in the process of being sold. The owner had been there a few days earlier and was able to say there had been no damage to the house at that time and the windows and doors were locked. (Indictment B10489595.2 CR-13-01267)
3 The fire in the early hours that day caused substantial internal damage to the house. In fact, you lit several fires in different parts of the house. Carpet and flooring, walls and doors were burnt. The forensic fire expert who examined the scene was of the opinion that the cause of each fire was the deliberate ignition of combustible material by a match or cigarette lighter.
4 On 9 April 2009 you and one Bradley Richardson were in Epping Street, East Malvern and you set fire to a wheelie bin on the nature strip. On each occasion you had been drinking heavily. Empty beer cans were found at each location and testing revealed the presence of DNA matching your profile. (Indictment B10489595.1 CR-11-02137)
5 You were arrested on 22 February 2011 and interviewed by the police, during which after you were told that DNA with a profile matching yours had been found on a beer can located there, you admitted having lit the fire in the wheelie bin. You also admitted to having lit a curtain in the house at Leamington Crescent, although you said it did not take, it just smouldered a bit.
6 On 24 March 2011 you were released on bail and referred to the CISP program, subject to which you were required to undertake comprehensive drug and alcohol assessment and treatment. After two months the report provided by your case manager stated that you engaged in counselling energetically and were highly motivated to maintain abstinence and avoid reoffending. By August 2011 it was reported that you had made significant progress. Almost two years have passed since then and more than four years since the offending.
7 You are aged 41, a married man and you live together with your wife Annette and her three children. Each of the children has behaviour problems and high needs. You are strongly supported by her and also by your parents who attended court each day throughout your recent trial for another charge of arson which resulted in acquittal.
8 You were assessed recently by a psychologist, Dr Kennedy, to whom you gave a history of significant alcohol abuse since your late teenage years. You were diagnosed with depression in 2009 and you have been medicated for that intermittently since then. You told Dr Kennedy that in the context of drinking heavily you would become very depressed, and his opinion is that you suffer from a dysthymic disorder. You ceased drinking after you were charged with these offences, and your wife told you that you had to choose between drinking and staying with her. You chose the latter, to remain with her, and you have abstained since then.
9 You have a good work history, although in recent years your work was disrupted by alcohol abuse, and indeed you lost jobs because of it. Last year you were working for a road work company until September 2012 when your contract ended, and you have been unable to recommence owing to the pending trial and the possibility of imprisonment. In the meantime you have participated in the Work for the Dole scheme, helping out at the Animal Aid establishment.
10 In 2010 you were charged with a number of summary offences involving the lighting of fires, and pleaded guilty on the basis that you had been with the principal offender at the time of the fires and had not prevented them. You were placed on a community-based order with conditions that you undergo treatment for alcohol abuse and for mental health issues, and this assisted you in ceasing drinking. You appealed against those convictions and the appeal was allowed. Accordingly you have completed a community sentence which has contributed to your rehabilitation, which has been successful to date.
11 Your wife Annette has written to the court confirming that you stopped drinking in 2010 and that she is confident that you have learned from your mistakes. Your parents have added their agreement with the contents of that letter. Your wife has outlined the special needs of her children, including a 16 year old girl who is expecting a baby. You assist with the children by taking them to medical and other appointments, and your desire to continue to assist with them is part of your motivation to rehabilitate yourself and to continue to abstain from alcohol.
12 Apart from the offences that were the subject of the appeal, your only previous criminal appearance was 20 years ago in the Magistrates' Court for criminal damage, handling stolen goods and trespass, for which you were placed on a community-based order and a short suspended sentence.
13 The first of these current charges is a very serious charge. The second is less so. Fortunately, although the damage was fairly extensive, the house was not totally destroyed, and its planned sale was able to proceed with no loss to the owner vendor. Importantly no one was placed in danger. The numerous fires in the house and the mindless graffiti on display bear the hallmarks of antisocial and criminal behaviour explicable by extreme drunkenness, and as Dr Kennedy suggests, the likelihood of some antisocial personality traits.
14 The combination of depression and alcoholism amount to reasons for me to take into account a reduced criminal responsibility on your part according to the principles in the case of Verdins and to apply sensible moderation to the severity of any sentence I impose.
15 At the same time I must consider the need for the sentence to deter others from such behaviour, because arson is a serious charge which must be punished appropriately. This is particularly so when a house is the subject of arson, but in balancing these two requirements of specific and general deterrence as well as other factors, I am able in this case to apply considerable leniency.
16 You have pleaded guilty to both charges and that is deserving of a discount on your sentence as it has avoided the need for a trial for those matters. The unusual aspects of your circumstances are that you have successfully completed a community-based order in the recent past and you have not offended again in the four years since these offences.
17 You deserve considerable credit for that, and taking that and other matters into account, a prison sentence to be served immediately would, in my opinion, be outside the appropriate range of sentences. I also take into account that you spent a month in custody before being bailed, and having never been imprisoned before, that experience had a salutary effect on you.
18 I now turn to the sentence I shall impose. A suspended sentence is still available in this case as these offences were committed before the change to the Sentencing Act. The other option of a Community Corrections Order would be superfluous, as you have already demonstrated that you can comply with such an order and benefit from it. Would you stand now please, Mr Wah.
19 Accordingly you are sentenced to two years' imprisonment for Charge 1 on Indictment B10489595.2 (CR-13-01267) and three months for Charge 2 on Indictment B10489595.1 (CR-11-02137). One month of the second sentence will be cumulative on the first, resulting in a total effective sentence of two years and one month. The sentence will be wholly suspended for two years and six months.
20 If you were to commit an offence during that time punishable by imprisonment, you will have breached the suspended sentence and will have to return to court to be resentenced, and you would have to serve that time unless there were exceptional circumstances as to why you should not.
21 If you had pleaded not guilty to these two charges, I would have sentenced you to three years' imprisonment wholly suspended for three years.
Are there any other matters that I have neglected, Ms Stevenson?
MS STEVENSON: Yes, Your Honour. If I could file the notice of discontinuance for Charge 4.
HER HONOUR: Yes. I did not give you a chance to do that.
MS STEVENSON: File the notice of discontinuance in the matter of Darren Wah for Indictment B10489595 relating to Charge 4.
HER HONOUR: Thank you. Any other matters, Ms Harper?
MS HARPER: No, Your Honour.
HER HONOUR: Ms Harper, at the end of the plea hearing the other day I was distracted and I forgot to thank you and Mr Dempsey and your instructor for your assistance during the trial. Ms Stevenson, I wonder if you would pass on to Mr Stefanovich my thanks also for his assistance and for the assistance of his instructor as well.
MS STEVENSON: I will, Your Honour.
MS HARPER: As Your Honour pleases.
PRISONER RELEASED
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