Director of Public Prosecutions v Walsh (a pseudonym)

[2019] VCC 1897

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON WALSH (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	12 November 2019
DATE OF SENTENCE:	15 November 2019
CASE MAY BE CITED AS:	DPP v Walsh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1897

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Watson	Office of Public Prosecutions
For the Accused	Mr B. Lindner	Tyler Tipping and Woods

HIS HONOUR:

1Aaron Walsh[1], you have pleaded guilty to one charge of persistent contravention of a family violence intervention order, and one charge of arson.  Those crimes carry maximum penalties of five years and 15 years, respectively. 

[1] A pseudonym.

2You are 52 years of age.  You have pleaded guilty in the ultimate, as the matter was listed as a trial for quite some time.  In these circumstances, it is hard to discern any remorse whatsoever, insofar as you are concerned.  But obviously, you must get a significant utilitarian benefit for that plea of guilty. 

3When, in fact, you were interviewed by police, you gave categorical denials of having deliberately lit this fire and gave explanations as to how it started by accident.  Your position now seems to be you have no memory of it.  I cannot take it much further than that. 

4You do have a prior criminal history, though it is not of real significance in this matter, other than for matters for which you were convicted on 9 November 2017, some 10 days or so prior to this offending occurring.  I will refer to that again in a moment.

5All right, at the time of this offending, you were 50 years of age, and your then wife was 44 years of age.  You had been residing in a matrimonial home.  Next door to that was another property, it was apparently owned by the two of you. A woman reside there renting. She had with her a three-year-old daughter, and she was pregnant.  Her uninsured motor vehicle was parked in the driveway, which was right next to your premises. 

6You had been married for about 22 years.  In about August 2017, your wife's car caught fire in the driveway whilst she was interstate.  As a result of that fire, her car was written off, and the carport was damaged.  On about
2 October 2017, the two of you separated.  She left, allowing you to remain in the property, which she had shared for a significant period of time.  The bank was owed about $60,000. 

7About a week after the separation, you lost your job.  After that, a neighbour, a Mr Ricky Stubbs[2], observed that you had been suffering from depression, and he said you would often come over and talk to him.  He said that sometimes, on numerous occasions in fact, you said you wanted to kill yourself and that you would burn the house down with you in it; he saw you to be suicidal and your mental health was deteriorating. 

[2] A pseudonym.

8It seems clear from other material that you were drinking very heavily during this period of time, and by your own assertions to the psychologist, you had apparently been using amphetamines. 

9In any event, as a result of an incident which occurred on 15 October 2017, on 9 November 2017, an intervention order was granted in favour of your wife against you. That included non-contact and communication, amongst others, except through a lawyer or mediator. 

10The circumstances of the offending that gave rise to the conviction on that day and the resultant intervention order was that you had had a verbal argument with your wife at that stage, and you assaulted her. You smashed various items of furniture.  When interviewed by police, you said the items were yours and you could break them if you wanted to.  As I have said, that matter was dealt with on the ninth, and it was not long after that that this offending took place.

11On 13 November 2017, your sister called an ambulance because you were not answering your phone.  You were taken to hospital and released later that night.  On 14 November, you were seen by a different sister with a mental health worker, and on the 15th, you were taken to a GP in Moe, where you were prescribed 25 tablets for sleep and anxiety.  On 16 November, your sister checked on you and you sounded sleepy. 

12On Friday, 17 November 2017, at around about 12.10 in the afternoon, your sister received a text message, indicating that the pills were gone and you needed more.  She replied that you were not getting anymore and could not be trusted.  My understanding is at that point in time, your response was, 'Fuck you all'. 

13At about 2.30 pm, a neighbour observed you walking up and down inside your carport for about 10 minutes with a cigarette in your hand.  It was around about that time, at 3 o' clock, that the fire began.  A neighbour saw the fire from across the road and yelled to someone to call the fire brigade. 

14People crossed the road.  You were coming out of the carport.  Your face and arms were covered with black ash.  You were asked if you were all right but did not respond.  You looked shocked and daze.  Certain discussions then took place, there were then explosions within the house and, essentially, putting it bluntly, the house burnt down. 

15The lady next door was alerted to the fire and was able to escape with her small child.  She had noticed that there were flames coming out of your windows next to her driveway where her car was parked.  She, having come out of the house, waited out the front.  You were seen to be walking around in a dazed state, with singed hair.  You were said to be holding a blue lighter, which was eventually taken off you. 

16One of the people who spoke to you said you did not even seem to recognise them, initially, at least.  there is much more to this than I am reading out, but I will just make sure that this Crown opening stays on the court file. 

17In any event, ambulances attended, and the fire was ultimately extinguished.  The property was totally destroyed; insurance value of about 440,000, so I am told.  When the fire was put out, the next door neighbour returned to check on her dogs and they were all right, her car was covered in soot and debris from the fire in your house.  The front windscreen was cracked and there was melted plastic on the passenger side.  The wooden beams in her carport were also burnt, and there was damage to the side fence.  You were taken to Latrobe Valley Regional Hospital and were admitted. 

18In this particular matter, a person across the street captured the incident visually on CCTV. I have had the benefit of watching the fire effectively commence and, effectively, be extinguished.  It is clear from that video that the endangerment to others involved in this particular fire was extreme.  It is clear from the video that there was quite a strong wind blowing and, indeed, the flames had gone into the next door neighbour's and damaged the car and damaged the carport.  There is not a charge of reckless endangerment, but it simply makes the fire objectively more serious.

19Experts were obviously called in to examine it, and concluded that:

'The cause of the fire was the spread and the ignition of a significant amount of petrol over the available combustible materials (mainly the floor coverings and fittings, the various furnishings, and other personal contents), about the lounge room, the doorway regions of all three bedrooms, and probably the passage way through the centre of the house.  The pattern and extent of burning on the floor and the various contents throughout in the front half of the dwelling were indicative of the presence of flammable liquid, as confirmed by analysis of samples.  The petrol appeared to have been poured in a disjointed fashion throughout the lounge room, the bedrooms, and the passage to assist in the initiation.'

20It is clear from watching what occurs on that video, and from what the arson chemist found, that you clearly deliberately lit this fire. You spread petrol throughout the premises in order to facilitate it taking hold.  You clearly had an intention to destroy the house.

21However, when you were interviewed by the police, when you were discharged from Flynn Psychiatric Unit and, obviously, at that point being relatively well, you gave a detailed explanation to the police.  You said that you had been watching TV and smoking cigarettes, that you were lying on a couch, fell asleep, woke up, had a cigarette, went back to sleep. You remembered lighting cigarettes, all sorts of things.  You said you woke up on the couch and the house was full of smoke, you heard a smoke alarm going off.  You remembered that someone took you across the road afterwards, you remembered going back to see where the cats were, so you tried to go back; that, in fact, is confirmed on the CCTV footage. 

22It is quite clear, on anybody's understanding, that what you told the police in that record of interview was simply a pack of lies. That indicates to me that you do have a far greater memory of what really took place here than you are admitting to.  The memory of going back to get the cats, in particular, is a detail which you clearly do recall and, as I say, has been confirmed by others. 

23There is a victim impact statement that has been filed by your former wife.  She talks about how after the house fire, she was nauseous for weeks, she had significant weight loss, she has had stress, she has constantly been grinding her teeth to the point where her gums bleed, she suffers headaches.  She has had to change locks just to feel safe at all.  She feels isolated and afraid.  She says how she now does not go out for fear of, effectively, running into you. 

24She is distraught by the animals that were killed, the cats killed in that fire, and she says that she now suffers from depression, anxiety, insomnia, that she now needs to be medicated daily, and is also receiving counselling to deal with the inability to cope.  She has regular nightmares, sometimes up to three times a week, of houses burning, personal security and violence.

25It then goes on to say that in terms of trying to get the money matters all sorted out, that she did have a buyer for the property itself, but that you had refused to sign any contracts.  I am assuming from all that that you are contesting all of this in some way. 

26In the end, as I have indicated already, there is not a shred of remorse in this matter, and I sentence, obviously, on that basis.  Arson is a serious crime in itself, general deterrence must play a significant part. 

27In your circumstances, it is hard to know what the situation will be with specific deterrence, but they may not be as important as might otherwise be the case, and the sentence that I intend to impose should have that effected, in any event.  Obviously, there has to be denunciation, and there has to be an appropriate punishment. 

28A number of matters were put on your behalf about your mental state at the time, and I accept that you were suffering from major depression.  I was taken through the events of that day and who you spoke to and the like.  As I pointed out, during the course of the plea, this is a situation where you clearly inside and ignited petrol, and it would have exploded. 

29I can understand if you were intoxicated, and in your own version of events, you must have been, or your own version of what you were doing around that period of time, that your behaviour afterwards is consistent with a level of shock from what had just occurred, as well as intoxication, as well as, I accept, that that depressive state did exist.

30It was clearly a deliberate decision as I discussed with your counsel during the course of the plea.  There are a number of potential motives for doing it.  One could be straight out revenge or animosity towards your wife, one could have been a suicide attempt - though why you needed to burn the house to do that is anybody's guess - and third could just simply be one of self-pity.  None of them are laudable motives, and I suspect that there is an element of each of them in why all this occurred. 

31There is no direct material from you before the court as to why you did it.  To a view other than your plea of guilty, there is not concession that you even did do it. 

32Your counsel took me through the difficulties that you had; you had lost your job not long beforehand, and you were drinking heavily, as you have told Psychiatrist, Mr Cunningham.  You had used amphetamines, and I accept that you, at that point in time, were in a very low ebb. 

33He has pointed out that you, yourself, lost a lot of possessions in the fire.  I think that is hardly mitigatory in all these circumstances.  As your wife points out in her victim impact statement, she lost a lot more that you did, and I gather from all this, she is the one still paying these mortgages, there being other rental properties as well, apparently owned by the two of you. 

34Your counsel provided succinct and helpful submission on your behalf, and I obviously take those into account.  It is submitted that it is not a planned arson - though I do not know about that, you had been talking about burning it down for quite some time, but I am not going to speculate or guess.  You do have a good work record, and you still do have contact with two sisters. 

35In terms of medical conditions concerned, you suffered from atrial fibrillations since early 2017, you are diabetic, require use of a mobility scooter.  I understand that a number of your symptoms have been, in the past, untreated due to lack of care of yourself.  You are on current medications, mirtazapine and amitriptyline for depression, you have numbness due to diabetes, you have an ulcer on your foot, and you also have, at this point in time, injuries from falling over. 

36The effect of the diabetes is that you do have a mobility scooter, and obviously I take all those matters into account.  But a custodial sentence for you will be more difficult, obviously, than for somebody who does not have those difficulties.  However, it is not suggested here that there is anything that could not be adequately dealt with or treated within a gaol.

37Insofar as your drug history is concerned - again, I do not have to go through that again - you have had a previous amphetamine habit.  You have been alcoholic, it seems, for most of your life, and certainly during the period when this occurred, you have instructed that you would drink a bottle of bourbon per day.  One of the neighbours, indeed, observed that, 'Quite often, I've seen him walking around with a bottle of alcohol in his hand'. 

38It is hard to know what the future holds for you.  In terms of rehabilitation, it is going to be a matter for yourself.  I have had you assessed for a community corrections order, and you were found to be suitable for that. They have indicated a number of various programs that you should be involved in, and I accept that that is in fact the case. 

39It is a situation where in marital separations, there is obviously often a lot of heartache and a lot of depression.  You have acted in a way which is criminal and you must receive an appropriate punishment.  I have taken into account the report of Mr Cunningham, and insofar as Verdins is concerned, those matters relate in any event. 

40But it is clear to me that any intoxication on that day, which must have been extensive - was self-inflicted intoxication, and that is simply no excuse.  You have told Dr Cunningham, when you are speaking to him, that your drug and alcohol abuse had escalated, and that you were struggling for accommodation, and all sorts of problems. 

41You described to him the increased medical problems, the unmanaged diabetes, and that you were often suicidal.  It is clear that you have had admissions to the psychiatric unit at the Traralgon Hospital on a number of occasions and, as I have already indicated, I accept that.  He went on to say:

'However, in my opinion, Mr Walsh’s depressive symptoms of hopelessness contributed to his reckless and self-destructive behaviour.' 

42As I discussed during the course of the plea, it was not reckless, it was intentional. 

'With respect to the arson, his relative emotional and psychological immaturity tends to defer blame to others, and limited coping skills perpetuated his depression and contributed to his escape through alcohol abuse.  His abuse of drugs and alcohol were, in my opinion, a precipitating agent for his offending behaviour.  Mr Walsh’s drugs and alcohol abuse increases inhibition and recklessness.'

43And I have already made my comment about recklessness.  He goes on to say that you require treatment.  Accepting all those matters and the matters that have been put on your behalf, it is my view that only a custodial sentence would be adequate in this situation.  Arson, as I say, is a serious crime, and you put, certainly, the next door neighbour at risk, and shown, as I have indicated a couple of times now, scant, if any, remorse for what you have done.

44Accordingly, I am going to sentence you to a period of imprisonment.  If you agree, and your counsel instructs me that you will agree, you will then be placed on a community corrections order.  That order will have - there will be no work hours because it will be a custodial sentence - that order will have, on it, the treatment and rehabilitation for drug, alcohol and mental health, together with programs to reduce reoffending, and there will be supervision.

45In all the circumstances, on Charge 1, three months.  On Charge 2, nine months.  They can be served concurrently.  That leaves an effective sentence of nine months.  You will then be released, if you agree, on a three year CCO with the conditions that I have outlined, and that will be with conviction.  If you would not mind just accompanying my associate to the dock, Mr Lindner? 

46MR LINDNER:  Certainly.

47HIS HONOUR:  Thank you.  All right, that will just - the community corrections order is made.  There is no other orders  I need to make, other than the 6AAA?

48MS WATSON:  Your Honour, there was a s.464 required and a compensation order sought.

49HIS HONOUR:  The compensation order, I have already done - sorry, yes, the 464, you have to provide a sample for DNA purposes.  That order having been, made, I must advise you that should you refuse to provide such a sample, police may have to use reasonable force to take it from you.  And that order is made and handed down.  The compensation, I have already made. 

50And let me say this, in a situation such as this, it is difficult with a 6AAA because the whole thing would have unfolded differently.  But had you run this as a trial and been convicted by a jury, as ultimately you must have been, I would have sentenced you to be imprisoned for a period of three years, with a minimum of two; that is the benefit you got of owning up in the end.  There is no PSD, is there?

51MR LINDNER:  No.

52MS WATSON:  No, Your Honour.

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