Director of Public Prosecutions v Wendell (a pseudonym)

[2019] VCC 1246

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULIAN WENDELL (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2019
DATE OF SENTENCE:	5 August 2019
CASE MAY BE CITED AS:	DPP v Wendell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1246

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – arson and commit indictable offence whilst on bail – offender set his rental unit alight destroying the property – Aboriginal offender – sentencing conversation – significant prior criminal history – immediate custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	John Cain Solicitor for Public Prosecutions
For the Accused	Mr S. Cooper	Doogue and George Solicitors

HER HONOUR:

1Julian Wendell[1], you have pleaded guilty to one charge of arson and one charge of commit indictable offence whilst on bail.  Both charges are serious and that is reflected in the maximum penalties prescribed by law, and they are 15 years' imprisonment and three months' imprisonment respectively.

[1] This is a pseudonym name.

2I shall now proceed to sentence you on the basis of the Crown opening that was read at the sentencing conversation, there being no objection taken by your counsel to that opening at the time of the plea hearing.

3You were 41 at the time of the offending.  You are now 42.  The arson charge concerns you setting alight the property where you were then living that had been provided to you through Aboriginal Housing Victoria.  It was located in Boronia.  The property was a two bedroom unit and you were the sole occupant/tenant.  You had been living at that unit since June 2010.

4For some days prior to the fire, you had been observed behaving erratically.  You were heard ranting outside your property, yelling, 'I'm going to burn this flippin' house down'. One concerned neighbour called 000 to report your conduct.

5On 25 April 2018, the fire started at approximately 11.30 pm.  You were in the loungeroom of the unit and struck a match.  As you did so, you sprayed a can of synthetic glue through the flame, causing a large flame projection that you directed at a couch and some curtains.  You then ran outside and watched as the property quickly became engulfed in flames.

6Emergency services attended and the fire was extinguished.  Unfortunately your unit suffered irreparable damage, necessitating its demolition and a complete rebuild.  The estimate of the cost of such is between $310,775 and $379,836.  Fortunately for you, no one suffered any physical injury, nor was there any consequential damage in relation to other properties that were nearby.  All damage from the fire was contained to your unit.

7You were arrested by police at the scene and searched and then taken to Knox police station.  A forensic medical officer assessed you as being fit for interview.  At that interview, you made full admissions to lighting the fire and you explained to police the process that you had used.

8You told police that you believed the house had cameras inside and that there was a dead body buried underneath the house.  You said you had no intentions of burning it and that you were also unhappy with the state of the house and it needed to be fixed.

9At the time of the offending, you had been bailed on a charge of theft previously on 22 November 2017.  Therefore, you were charged with the second charge of commit indictable offence whilst on bail.

10It is accepted that you entered a plea of guilty at an early stage at committal mention on 8 August 2018. 

11You were arrested on 25 April and bailed in respect to these charges, and then on 4 May, you were arrested and remanded on other unrelated matters. The offending the subject of those unrelated matters occurred on 22 November 2017, which involved theft of some items from Kmart on 21 April 2018, which involved a breach of a family violence intervention order, and on 2 May 2018, which involved an unlawful assault, threats to kill and commit indictable offence whilst on bail and driving without a permit.

12On 16 August 2018 at the Ringwood Magistrates' Court, you were sentenced to an aggregate term of imprisonment of 10 months for those unrelated charges.  The sentence was imposed with a declaration of 104 days declared as
pre-sentence detention.  That sentence lapsed on 1 January 2019.

13I have had regard to the circumstances of those offending as set out in the summaries that were provided by your counsel this morning.  I have also had regard to the principle of totality in formulating the sentence in respect to these matters that are presently before the court.

14You have admitted your prior extensive criminal history.  It spans a period from 13 May 1996 to 4 September 2017.  Your past convictions relate predominantly to dishonesty offending, drug related offending and driving offences with some crimes of violence against the person.

15You have had many different dispositions imposed by the courts in the past and since your mid-20s, you have been in and out of gaol.  Your history, to a large extent, reflects your significant history of complex trauma and associated long term addiction to drugs to which I shall now refer.

16You are the eldest of two sons born to you mother, Tracey[2], a Kamilaroi woman and your father.  Your parents separated when you were three.  You had some contact with your father from time to time in the past, however there has not been any contact with him for the past 10 years.  He had significant issues with drugs and you were encouraged to use drugs by him when you were a young teenager, and thus began a long term addiction to drugs and other substances, predominantly, methylamphetamines in your adult years.

[2] This is a pseudonym name.

17After your mother separated from your father, she re-partnered with a man who is described as being a violent alcoholic.  She was subjected to serious family violence over the years, which you witnessed.  Your step-father had three sons and two daughters, and he and your mother had a further three children. 

18I accept that your childhood was characterised by complex trauma associated with family violence, drug and alcohol use and poverty.

19Your family moved between Queensland and Victoria and as a consequence, you had a disrupted schooling.  You attended many schools, but you were able to complete Year 11.

20When you left school, you worked predominantly in labouring type work, but your chronic long term drug dependency meant that your life was too chaotic to be able to hold down a job for any length of time.

21You are tragically the victim of penetrative sexual abuse perpetrated by a paedophile priest during your formative years between the ages of 11 and 15.  That person was tried and found guilty and sentenced to a lengthy term of imprisonment.

22The profound impact of such complex traumas is well documented.  In the past, you have not had any counselling for complex trauma.  You have expressed a strong desire to have such counselling to assist you to come to terms with your past so that you can commence your healing to enable you to be a better person and a better father in the future.

23I have taken into account your history of significant social disadvantage, the effects of which do not diminish over time or with repeated offending, and I have applied the Bugmy[3] principles.  Therefore, I consider that your moral culpability is reduced[4].

[3] Bugmy v The Queen [2013] HCA 37.

[4] Ibid [43] – [44].

24You have an adult daughter, Hannah[5], born of one relationship and three younger children from a different relationship.  Those younger children are aged 10, eight and six, respectively, and they are currently being cared for by your mother. 

[5] This is a pseudonym name.

25Part of the stress that you were labouring under at the time of this offending was that there was a family violence intervention order in place, which you mistakenly believed prohibited you from seeing your children.  You were very agitated about this, notwithstanding it was untrue.

26You now have real insight into the link between your drug use and the commission of this offending, and indeed, all of your offending in the past.  Your history of drug taking has its genesis in the dysfunctional life to which you were subjected to in your formative years without any positive adult male role models, and that is a relevant mitigating factor to which I have had regard[6].

[6] See Lacey [2007] VSCA 196

27Dr Zimmerman, forensic psychiatrist, in his report of 14 February 2019 confirms that you were suffering from a drug induced psychosis at the time of your offending relating to your methamphetamine use.  He did not consider when you were examined by him that you were clinically depressed, but stated there was no doubt that you do have a propensity for depression, which makes you more vulnerable to the stressors of prison life than for others, and I have taken that into account in your favour.

28He states that you require psychological treatment to assist you to develop better ways of coping with respect to your emotions and to develop strategies for managing your yearnings to use drugs and alcohol. He recommends a residential program on your release into the community.

29You have expressed a strong willingness to commit to such a program and I urge the authorities to give proper consideration to his recommendations whilst you are in custody and also following your eventual release so as to enhance your rehabilitation prospects, and also to provide for better protection for the community in the future.

30I have also read the report authorised by Ms Pamela Matthews, consultant psychologist dated 20 November 2018 which supports similar findings.

31Your counsel, Mr Cooper, conceded that arson is an inherently serious offence and that a custodial term is appropriate punishment.  It was accepted that significant damage was caused by reason of the fire and in addition, you actions constituted a breach of trust insofar as you had been provided with social housing from Aboriginal Housing Victoria, which housing was destroyed by your actions.  Your crime caused significant inconvenience to the Aboriginal Housing authority and also has meant that the unit was not available for occupancy and needed to be demolished and rebuilt.

32It was submitted by Mr Cooper, and I accept, that your case can be distinguished from more serious cases of arson where the offender has an ulterior motive such as acting out of revenge, insurance fraud, targeting competitors or concealing other crimes or where there is serious risk of harm to others involved.

33I accept that the charge of arson is represented by a broad spectrum of behaviour and having regard to the particular features of your crime, I consider that this offending reflects the mid to low range level of seriousness for this sort of crime.

34Your offending can be explained due to your drug induced psychosis.  You have had a long term addiction to methylamphetamines and this, as I have already described, is linked to your troubled and traumatic past.  Your behaviour was clearly irrational.  You destroyed the one solid structure in your life, namely your secure housing, for no obvious reason.

35Your counsel did not seek to rely upon what is called the Verdin’s principles.  But nonetheless, I have had regard to the fact that your mental health condition was severely compromised at the time of the offending.  Whilst explaining your behaviour, this in no way excuses this offending.  On behalf of the community, I must and I do condemn your behaviour.

36I have taken into account all the mitigating factors highlighted by Mr Cooper and accept that this was an isolated and ill-considered act on your behalf.  At the scene, you were cooperative.  When questioned by police during the interview, you made full and frank admissions. I have taken into account in your favour that you made such admissions and also that you entered an early plea of guilty.  Your plea has real utility. It has spared the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.

37Having had the chance to reflect on your behaviour, you are now very sad and acknowledge that this act has been very destructive and has had the effect of preventing others from using the unit. You describe yourself as having ruined your life through this.  You are genuinely remorseful and I consider that your plea of guilty reflects that as well.

38You elected to have your matter heard in the Koori Court division of this court and a sentencing conversation took place in the presence of Auntie Pam Pederson, an elder and respected person.  In doing so, you consented to your matter being dealt with in that manner and you participated in the sentencing conversation. The Court of Appeal in this State recognises that such a conversation is designed to further the reformation of Aboriginal offenders[7].

[7] R v Morgan (2010) 24 VR 230

39You were genuine in the way in which you participated in the process and I have taken that into account in your favour in mitigation of sentence[8].

[8] Honeysett v The Queen (2018) 56 VR 375

40Auntie Pam challenged you directly about your behaviour and urged you to seek help to address the issues that were troubling you at the time you set fire to your unit.  She severely admonished you for destroying the unit and its impact upon Aboriginal Housing Victoria, and the Aboriginal community generally.  She urged you to seek help, for your complex trauma history by getting proper counselling so that you can be properly supported upon your eventual release.

41You told Auntie Pam that you had an evolving sense of hope over the last year and that you are willing to do whatever you can to address your chronic drug issues and mental health issues.  You expressed a keen willingness to undertake programs to help you take this path in the future and you referred to Ngwala Willumbong, alcohol and drug outreach service for Aboriginal people and their families.

42You were supported in court by both your mother, Tracey and your eldest daughter, Hannah, who is a qualified nurse.  Your mother has supported you over many years, but has become increasingly frustrated by your failure to address your chronic drug problems and the behaviour that manifests itself as a consequence. 

43Both Hannah and your mother visit you regularly in gaol.  Hannah makes sure that your younger children have maintained their relationship with you by taking them for regular visits as well.

44Hannah has indicated her willingness to open her home to you upon your eventual release.  She has made it clear that she does not condone drug taking and will only support you if you remain drug free.  The intention is that you will stay with her short term so that proper arrangements can be made to further your rehabilitation.  You express a strong desire to go into a residential drug and alcohol rehabilitation program.

45During the sentencing conversation, you further stated that you wanted to write an apology to Aboriginal Housing Victoria and that you intend to do so in the future.

46I have taken into account the fact that you have worked productively in gaol.  You have completed programs that are directed to your underlying offending behaviour linked to drugs.  You have had completed courses on the effect of drugs and alcohol, building better relationships and being a better father.  You are working in the kitchen, currently undertaking kitchen duties.  You have remained drug free and you have been compliant with your medications.

47You are exhibiting positive attitudes and I have regard to the two page letter that was addressed to me by your older daughter, Hannah, in which she describes how you have impacted upon her life over the years.  But importantly, she reflects on your changed attitude, and also your expressed remorse for this offending.

48She describes the current situation as being a positive one where you have built a relationship with her like you have never had before.  You have been discussing with her your plans upon your eventual release and you have expressed a desire to obtain a job in a trade and that you have a potential for such with a friend.  You have also spoken at length about rehabilitation and other programs, and she states that you have many positive goals for the future, with an ultimate expressed goal of wanting to get back custody of your three children.

49You have also indicated that you want to be able to share your story with others who have struggled with drug and alcohol and mental health in the past through being involved in public speaking.  She states, with the right support and encouragement around you, she believes that each of these goals are achievable.  She has expressed her pride in you reflecting on your behaviour and committing to making changes in the future.  She is very optimistic for you in the future.

50Overall, I consider that your prospects of rehabilitation are reasonable.  They are, however, dependent upon you maintaining your total abstinence from drugs, securing employment and stable accommodation upon your release.

51I do urge the correctional authorities and the Adult Parole Board to have regard to what was said by you in the sentencing conversation and also what is said by your daughter, Hannah and the recommendations made by
Dr Zimmerman.  They provide the best plan for the future in terms of trying to make best your rehabilitation prospects.

52In formulating the appropriate sentence, I must impose just punishment, and emphasise general and specific deterrence.  Deterrence as well as protection of the community are all important sentencing considerations.

53I will now make the formal orders, so I will ask that you do stand.

54In respect to the charge of arson, you are convicted and sentenced to three years' imprisonment.

55In respect to the charge of commit indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.

56That makes a total effective sentence of three years and I set a non-parole period of 15 months.  The non-parole period is shorter than it would otherwise have been because of your current efforts towards rehabilitation and also reasonable prospects of rehabilitation in the future.

57Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of five years to serve three years.

58Pursuant to s.18(4) of the Sentencing Act 1991, I note that you have spent - how many days - 156 days in custody by way of pre-sentence detention, and I direct that that be entered into the record of the court.

59Finally, I make the Disposal Orders sought and note that order is by consent.

60That concludes the matter.  There are no other ancillary order matters?

61MR ROPER:  No, Your Honour.  There has already been on the database.

62HER HONOUR:  Yes, all right.  Well thank you very much, Mr Cooper for your assistance. Do you want to just speak very briefly to Mr Wendell before he goes downstairs, or would you prefer to see him in the cells downstairs?

63MR COOPER:  I will go downstairs, Your Honour.

64HER HONOUR:  All right, so we will adjourn the court. Mr Wendell, your counsel will go downstairs and speak with you.  All right, good.  Thank you for everyone who attended.  We can now adjourn.

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