Director of Public Prosecutions v Whittle, Mick
[2013] VCC 375
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01807
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICK WHITTLE |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Bendigo (Sitting in Melbourne) | |
DATE OF HEARING: | 25 March 2013 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | DPP v Whittle, Mick | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 375 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr L. Dockerty | Stuthridge Legal |
HER HONOUR:
1 Mick Whittle, you have pleaded to one charge of arson. The maximum penalty applicable to that offence is 15 years’ imprisonment.
2 Your offending behaviour in my opinion is most serious and disturbing.
3 It is not necessary for me to recount in great detail the facts of this matter, as this was outlined by the prosecutor in his sentencing remarks.
4 I turn to a summary, however, of your offending.
5 On Monday, 23 July 2012 at approximately 10.40 am, you left your address in your Ford utility, registration "MICK2". On the utility’s flat aluminium tray you tied two gold coloured petrol tins and two 20 litre tins.
6 At approximately 10.45 am you attended Woolworths Caltex in Epsom. You removed the two 20 litre tins and the two gold tins from the tray of the utility and filled them with unleaded fuel. You paid for 56.58 litres of unleaded fuel totalling $79.05, leaving that service station at approximately 10.55 am.
7 A short time later you arrived back at the address 97 Strickland Street, Ascot, and was seen by your ex partner, Julie Anne Whittle, to be in the garage cleaning the windscreen of your vehicle. The victim then left the house and the address in her car.
8 You entered the house after she had left and spread unleaded petrol around the inside of the house. You told police you could not exactly remember where you spread the petrol, but stated it was in the bedroom, lounge room, kitchen and hallway. You then exited the house and lit the petrol at the rear door of the address using a cigarette lighter.
9 You left the address in your vehicle and told police you did not see the fire start, and you did not stay in the area to see the house catch alight.
10 Witnesses heard a loud explosion, smoke and flames coming from that address. A witness contacted 000 requesting the attendance of emergency services. Contact was made with Ms Whittle, who attended the scene a short time later.
11 Police received information which resulted in them locating you. You were arrested and taken to Bendigo Police Station where a record of interview was conducted. During the interview, you made full admissions to deliberately starting the fire. The reason you gave for that was that you were “at the end of the line”. You were charged and bailed to the Magistrates’ Court at Bendigo on 24 July 2012.
12 At the time of your offending you and the victim were husband and wife, although had been separated since April 2012. You had continued to live in the same house. You were going through an acrimonious property settlement which was to be finalised on 30 July 2012 and which would have resulted in you having to move from that address. You were upset and disappointed with the offer made to you regarding settlement of your financial situation. You cancelled the house and contents insurance approximately one month before the fire.
13 As a result of the fire that you lit, the house and contents were completely destroyed and the house had to be demolished. The value of that damage was $355,000.
14 It is difficult to describe just how serious I regard your offending to be. In brief, it occurred against the background of an acrimonious marriage break-up between yourself and your wife, that deterioration, according to your instructions, having been occurring for approximately 18 months to 2 years. In the police record of interview, you said you were unhappy with the proposed financial settlement, believing it to be inadequate. As I discussed with counsel, your offending, to me, seemed to be simply a case of “if I can’t have it, neither can you”.
15 You doused various rooms of the house before you set it alight. You told police you did not expect this to engulf the house in the way it did and totally destroy it. It is almost incomprehensible to me that you would even consider damaging the property at all, as your totally disabled daughter lived in that house with your wife as her carer. After you set fire to the property, you simply drove away without waiting to see what might happen and perhaps assist, should you have been minded to, as it engulfed that property.
16 Your offending was selfish and heartless. The actions were of a vindictive and self-centred man. It is almost unfathomable to think a father of a disabled child would act in this way. When you lit that fire, you were well aware that your daughter, in particular, lived in that home and that it had been set up for her to be able to live more easily.
17 An aggravating feature of your offending was the purchase of petrol to enable you to carry out this task.
18 Whilst not an aggravating feature, it is also very concerning that you cancelled the insurance on the home approximately one month prior to lighting this fire. You had not discussed that proposed cancellation of the policy with your wife.
19 You do not have any prior court appearances and therefore you come to the court as a person of previous good character, and I have not lost sight of that when sentencing you at age 76.
20 I was provided with a very helpful outline of submissions from your counsel, Mr Lowry. Turning to this offending, you instructed him that your marriage had been deteriorating for 18 months to 2 years before. You apparently thought your ex-partner was neglecting your daughter and, in particular, leaving Natalie at home unattended. You had contacted the Department of Human Services, police and Natalie’s case manager about that, but felt you were being “fobbed off”. You perceived the situation of neglect of Natalie was continuing. At the same time as your marriage was deteriorating, you were becoming depressed. At the time of this fire you said you snapped.
21 Whilst you had cancelled the house and contents insurance, it appears you also cancelled the water, electricity and the rates, which were being split on a joint credit card. You instructed the reason for cancellation of those services, in particular the insurance, was because you could no longer afford the costs associated with the upkeep of the house, that you were barely living in the home, and that you were going to lose the right to occupy it anyway in the Family Law settlement.
22 As I discussed with your counsel, there were it seems, funds available to you which would have enabled you to have at least the insurance continue on that property. When finally you settled the financial situation with your wife through the Family Court, you apparently signed over cash, some shares and the land that the house was on to her.
23 You told the police you were remorseful for your offending and shocked by the amount of damage you caused. However, in my opinion you would have well known the potential for a fire to have got out of hand having spread petrol in a number rooms, then setting fire to it. You simply drove away once you had lit it. It is hard to imagine a more selfish act than yours.
24 Turning to your background and history. Your parents divorced when you were 5 years old. You instructed you lost contact with your mother for some 20 years and had never really been close to her. Your father died when you were 50 years of age of alcohol-related problems.
25 You married your first wife, Sandra, in 1961, and were married for 22 years with two children of that marriage, Raymond and Cheryl, to whom I was told you had not spoken in 30 years until after your offending occurred.
26 You and Julie Anne Whittle met through friends in the early 1980s and there are two children born of that marriage, Nicholas in 1989 and Natalie, in 1995. Regarding Natalie, you instructed she attends a special development school at Kangaroo Flat but that you and your wife noticed something was wrong with her when she was about 2 years of age. Thereafter, your partner became Natalie’s full-time carer.
27 You both decided to move back to the Bendigo area and bought the property at Strickland Street, and you retired once the family moved back to that area.
28 Your daughter, Natalie, suffers with a number of medical conditions from mitochondrial disorder complex 3 and is totally reliant on having a carer, and always will be.
29 Your marriage to Julie Anne Whittle ended in about April 2012 after approximately 30 years. You had been living at the address in Strickland Street for about 15 years of that time. Immediately prior to the fire, you had been separated, as I previously stated, under the one roof.
30 You are, as I note, 76 years of age at sentence.
31 You went to school at Moonee Ponds until you were 15 and then went to work as a motor mechanic’s labourer for seven years, then started an apprenticeship.
32 You bought a tip-truck in your late 20s and ran that business for five years and also worked at Patton’s Brakes in Carlton for ten years.
33 When you were 38, you returned to Bendigo and ran a service station in Huntly, before working at White Hills Panels for ten years and later going into partnership at a panel shop in Kangaroo Flat. After work dried up in that business, you returned to Melbourne and ran another trucking business for ten years before retiring in the mid eighties at around 61 years when you returned to the Strickland Street property.
34 After you retired and returned to that address, you continued to buy, work and sell cars, more out of personal interest and to keep yourself busy.
35 Your ex-wife Julie Anne, as I said, worked up until the birth of Natalie. Not surprisingly, Natalie has required a great deal of her time caring for her.
36 Since this fire, you have been living from place to place. You are currently being treated for depression, which had arisen in the context of this offending or shortly prior to it. A report was provided by Dr Holly Anderson which provided a diagnosis of adjustment disorder and depressed mood.
37 Dr Anderson, Consultant Psychiatrist, in her report dated 24 September 2012, said she saw you following your offending before me. You had difficulty sleeping, had depressed mood, and intermittent suicidal thoughts. You said you perceived the level of care your disabled daughter was receiving from your wife was inadequate and inappropriate. You also thought your wife was having an affair.
38 You denied any previous contact with mental health services prior to this offending, however, reported a past history of possible depression some five to six years ago. You could not remember the name of the medication you were prescribed but said you only took it for a couple of days anyway. Your medical history included obesity, arthritis of the knee, GORD, gout and hypertension, and Dr Anderson listed a number of medications that you had been prescribed.
39 You denied any specific drug or alcohol history to Dr Anderson, and denied any present, current, or previous history of psychotic symptoms or manic symptoms. She concluded there was some low-grade depressive symptoms, although they appeared to improve since you commenced the anti-depressant medication. She concluded you assumed little personal responsibility for your actions, blaming your wife and services responsible for overseeing the care of your daughter for “passing the buck”, which led you to purchasing the petrol, you said, and setting the home alight.
40 Dr Anderson concluded that at the time of writing her report you presented with an adjustment disorder with depressed mood in the context of you having burnt down the family home following marital discord. She noted in her opinion there appeared to be little remorse for your actions and there was externalisation of blame by you to others. This concerns me when assessing your level of remorse. She suggested continued treatment with medication.
41 There was also correspondence from your general practitioner, Dr Amanbir Cheema, of the Tristar Medical Group dated 25 January 2013.
42 You had been a patient of his since 15 February 2010. You were being treated for a number of conditions as outlined in paragraph 2 of that letter, and he also provided a medication summary. That material will be made available to the prison authorities to assist in your management during your incarceration.
43 I was also provided with a report from the Patient Services Manager at Bendigo Health dated 4 March 2013, which referred to an operation booked for you for a left total knee replacement on 23 March 2013. Mr Lowry was unable to assist with any further details as to how you were adversely affected as a result of the knee difficulty, ie: whether there was any impact upon you in your daily life.
44
Mr Lowry submitted there was evidence of your remorse for your offending, in that you had given the block of land and the assets of the marriage, apart from your car, to Ms Whittle. Whilst that may be so, I am concerned about your level of remorse, in particular given the correspondence and conclusion of
Dr Anderson. It is difficult for me to find that you are totally remorseful for your offending.
45 Mr Lowry referred me to R v Mazur [2000] VSCA 111, in which the court stated that:
"courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate”. He acknowledged imprisonment was the only appropriate sentence in your case.
He acknowledged imprisonment was the only appropriate sentence in your case. Mr Lowry conceded there was the need with such an offence for general deterrence, and I agree.
46 He submitted that relevant to your sentencing in particular was your health and age, and that is so. This is also your first time in custody, and I am well aware of that. You have through your actions lost everything, including your family. Ultimately you may find yourself with very few, if any, visitors in custody. He submitted there was only limited pre-planning when you purchased petrol only on the day of your offending. Whilst that is correct there was, however, a background to the purchase of the petrol on that day.
47 Turning specifically to the significance of old age when sentencing, Mr Lowry referred me to the decision of Austin v R (1996) 87 A Crim R 570 at 572, and urged that I moderate the need for general deterrence to take account of the possibility that at 76 years of age you may not live to be released back into the community.
48 Further, I was taken to the decision of R v RLP [2009] VSCA 271, specifically paragraphs 32-39. I have read those paragraphs and they accord with my understanding of the law in relation to sentencing persons of advanced age or poor health.
49 However, the court also referred to R v Bazley (1993) 65 A Crim R 154, in which the court (constituted by Crockett, Hampel and Smith JJ) warned:
"The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence"; paragraph 37.
50 The court in R v RLP set out a number of propositions or considerations that a judge should take into account when determining the relevance of an offender’s advanced years and ill health and, of course, I accept those principles of law.
51 Mr Lowry submitted that the only appropriate disposition for your offending was that of a term of imprisonment, however urged there be moderation of the sentence in relation to your age and ill health and that you be placed on a longer period of parole.
52 Mr D’Arcy, on behalf of the prosecution, submitted that following these events your wife had been required to live in emergency housing in a two-bedroom unit and that unit has not been addressed suitably to cater for your daughter’s needs.
53 In relation to your cancellation of the insurance premium, she was advised that you told the insurance company it was because the house was being sold.
54 Mr D’Arcy submitted your behaviour was not impulsive but rather involved preplanning. The planning in the purchase of the petrol also occurred against a background of unhappiness by you with the anticipated Family Law settlement.
55 There was a victim impact statement placed before me from Julie Anne Whittle, and attached to that a report. There is no doubt the victim of your offending has suffered considerably in the manner described in that statement as a direct result of your actions, and that that impact has flowed adversely to your daughter, Natalie.
56 In your wife's statement, she said she is the full time carer of Natalie and that Natalie is completely dependent on her for her day to day care. She must be transported in a wheel chair, is legally blind, non-verbal and incontinent.
57 Ms Whittle outlined the steps taken by her regarding the property settlement following the breakdown of the marriage. You were personally served with an Application regarding property interest on 14 June 2012.
58 On 23 July 2012, you made a report to Child Protection Services that Natalie was being neglected and representatives of the service attended the house and found no concern. That same day she saw you moving tools into your car.
59 When she came home, to her burnt home, she collapsed onto the ground in shock. The house was completely destroyed.
60 Natalie’s daily medication was also destroyed and she had to find emergency accommodation.
61 All the equipment necessary for the care of Natalie was destroyed in the fire, including a lifting hoist, Natalie’s specially built bath, an electronic change table and Natalie’s personal possessions. Her specially constructed bed had been destroyed, as well as possessions of the family.
62 Ms Whittle is, since your offending, anxious, fearful of you, constantly in a panic situation and has difficulty sleeping.
63 Attached to her victim impact statement was a depression anxiety stress assessment. She scored 79 with a score of more than 50 being supportive of post traumatic stress disorder.
64 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious I must not allow the effects upon a victim to swamp the sentencing process.
65 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, which I find to be good, in particular given your lack of prior criminal history at age 76, the need for general deterrence when sentencing you is of considerable importance.
66 Whilst there is an element of specific deterrence required when sentencing you, you do not have any prior court appearances. Specific deterrence need not loom large in the sentencing process.
67
I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending. I accept your offending was situationally motivated, that it did not involve the wider community as such, and that it is unlikely, in my opinion, you will
re-offend. However, ultimately that will be a matter for you.
68 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. Somewhat generously, I have taken into account the prosecution submission in relation to appropriate range.
69 On Charge 1 you are convicted and sentenced to 3 years’ imprisonment, and I direct that you serve a period of 18 months before you are eligible for parole.
70 Pursuant to s.6AAA Sentencing Act, had you been found guilty of this offence following jury verdict I would have sentenced you to a term of imprisonment of 5 years with a non-parole period of 3 years.
71 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 2 days in custody, up to and including yesterday, 26 March 2013, by way of pre-sentence detention and I direct that this be entered into the records of the court.
72 Were there any other orders?
73 MR D'ARCY: 464, Your Honour.
74 HER HONOUR: What was it, a forensic sample or retention?
75 MR D'ARCY: Yes, a forensic sample.
76 HER HONOUR: Did I get instructions from the barrister in that regard or not? An application was made by the prosecution for a forensic sample. Do you have anything to say about that, Mr Dockerty?
77 MR DOCKERTY: I don't have any specific instructions, Your Honour.
78 HER HONOUR: No, all right. Well, in the end I have to make up my own mind about that. I am conscious he hasn't been before the courts previously. I am conscious that at 76 and having served a term of imprisonment, he is unlikely to be back before the courts again. However, in my opinion, given the seriousness of this offence, I will be making that order.
79 MR DOCKERTY; As Your Honour pleases.
80 HER HONOUR: That means it will be for a saliva sample and I must advise your client that the police may use reasonable force in order to obtain that sample.
81 MR DOCKERTY: As Your Honour pleases.
82 HER HONOUR: Any other orders?
83 MR D'ARCY: No, Your Honour.
84 HER HONOUR: That is the end of the paperwork, is it? All right, thank you. Remove Mr Whittle, thank you.
85 (PRISONER REMOVED).
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