Director of Public Prosecutions v Wilson
[2018] VCC 1965
•19 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-01679
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY WILLIAM WILSON |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2018 | |
DATE OF SENTENCE: | 19 November 2018 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1965 | |
REASONS FOR SENTENCE
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Subject: SENTENCING
Catchwords: Plea of guilty – arson; theft of motor vehicle; commercial premises with residence above; long criminal history of different nature without prior arson; some insight into causes of long-term drug abuse.
Legislation Cited: Sentencing Act 1991 (Vic), s. 6AAA.
Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269; McPadden v The Queen [2018] VSCA 57.
Sentence:Total Effective Sentence of 3 years imprisonment, with a Non-Parole Period of 22 months; 436 days PSD.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Teo (on Plea) Ms J. Cavka (on Sentence) | Office of Public Prosecutions |
| For the Accused | Mr C. Terry (on Plea) Mr B. Barratt (on Sentence) | Dowsley Associates |
HER HONOUR:
1 Ricky William Wilson, you have pleaded guilty to one charge of theft and one charge of arson.
2 The maximum penalty for theft is ten years' imprisonment and for arson it is 15 years' imprisonment.
3 You have also admitted a prior criminal history to which I shall refer later.
4 This offending occurred between 9 and 10 February 2016. At that stage you were living in the Geelong area. You were a heavy user of methylamphetamine.
5 The first charge relates to a vehicle, a Ford Maverick four-wheel drive, which had very distinctive modifications and attachments made to it by its owner. That vehicle had been left parked, apparently unlocked, in a street in Corio. The vehicle did not need a key and could be started by the pushing of a button. It was stolen overnight between 7 and 8 February 2016. Although it was observed by police on 8 February in Corio, the driver could not be intercepted or seen. It is not alleged that you are the person who initially stole that vehicle. However, you have pleaded guilty to the charge of theft of that vehicle on the basis that you drove and used it from early on 9 February, and on 10 February.
6 Early in the morning of 9 February you drove that vehicle in the vicinity of a restaurant in Richmond called “The Groove Train” situated at 318 Bridge Road on the corner of Hosie Street. CCTV shows the vehicle travelling past the restaurant in both directions before parking next to the roller door. You approached 1 Hosie Street, and shortly afterwards drove the Ford Maverick from the area as shown on CCTV. Your distinctive T-shirt and an upper right tattoo consistent with a photograph police took of you some months later was seen on CCTV.
7 Around midday that day you had a meal at The Groove Train restaurant with a female identified as Avril Ludlow.
8 Just prior to 2 am on 10 February, CCTV shows the Ford Maverick in the vicinity of The Groove Train. You gained entry by putting two crates on top of each other next to the rear fence in the laneway, and climbed over the fence. Internal CCTV shows you carrying a red jerry can. Flammable liquid was spread about the inside of The Groove Train kitchen area and was then set alight. Your pants' legs apparently were also set alight accidentally. You flung the jerry can away before leaving via the rear external walkway, and to get over the fence you used an upturned bucket. A box of Redheads matches was dropped near there. These events are the basis of Charge 2 of arson.
9 You left in the Ford Maverick. Phone records show your phone in the vicinity of Kings Way at 2.35 am when it called the phone Avril Ludlow.
10 At the time of the fire two people lived in a unit above The Groove Train restaurant. At about 2.25 am they were both woken by voices shouting. They smelled smoke. One looked out of the window and observed that the awning was on fire. They called 000 for the fire brigade and vacated the building.
11 The fire brigade attended sending three fire trucks, and on arrival fire fighters required breathing apparatus to enter the restaurant to fight the fire from inside. Fuses were pulled out to cut off electricity, and the power company was called to cut power from the building. Fire fighters found the café on fire inside, including furniture, walls and ceiling linings. They used water hoses to extinguish the fire.
12 Police officers attended and took over and preserved the scene. A forensic chemist attended later that day, and confirmed that petrol had been used as an accelerant, and had been poured on the kitchen floor, along the walkway east of the kitchen and/or around the bench seat in the dining area, and possibly on the bench in the covered walkway. Each area would have been ignited separately, probably by a lighter or matches.
13 It was also found where you had gained access on crates over the fence, and where you had exited, dropping a box of matches near the overturned bucket which you used to get over the fence. The matches were discovered by a worker at a neighbouring restaurant when he arrived next morning, and were shown to police.
14 There was extensive damage to the contents and fittings in the restaurant as well as to the stock. The value of the damage was put at $381,739.
15 The owner of the Ford Maverick vehicle identified it as the vehicle captured on CCTV outside The Groove Train during the arson. That vehicle was never recovered.
16 I have read a victim impact statement from the owner of the restaurant. He describes the stress he experienced on learning of the fire, the financial difficulties of having to immediately close the business while having ongoing expenses, and his personal emotional reaction and feeling of insecurity even where he lived. This incident apparently was connected with an ongoing dispute he was having with a purchaser of the business. That sale could not proceed after the fire. Although the owner was insured for much of the damage to contents and stock, I accept that the experience of having his business burnt out in such a manner was likely to have a significant impact on him emotionally as well as financially.
17 There was no victim impact statement from the owner of the stolen vehicle. However, as described, it had clearly been adapted very individualistically for him, and I assume that the fact that the vehicle was never recovered would have caused him a loss beyond just that of an ordinary vehicle, because of the various adaptions, and that at least in the short term this would not have been an easily replaceable vehicle.
18 I am told that your reason for setting fire to the restaurant was to assist a friend to expunge a substantial drug debt in respect of which she was being threatened. That was Ms Ludlow, with whom you ate at the restaurant on the day before you set the fire. I am told that you had known her for many years and treated her as younger sister. In an attempt to assist her, you had negotiated with the person or persons threatening her and agreed to set fire to this restaurant, apparently in aid of enabling a person purchasing it to avoid having to complete the contract.
19 I accept that you had no direct contact or association with either the owner of the business or the person who was trying to find a way of avoiding completing a contract to purchase it. I sentence you on the basis that you were not doing this for your own financial gain. You apparently received an ounce of methylamphetamine for your role, to feed your heavy methylamphetamine addiction at the time.
20 I must assess the objective seriousness of the offending, and your role in it. The maximum penalties, as I have said, of ten years' imprisonment for theft and 15 years for arson indicate the potential objective seriousness. That for arson in particular reflects that it is a serious offence. The fire you started had some planning, although unsophisticated, and caused very extensive damage, and potentially endangered other people, especially those living above.
21 As for your own culpability, you planned your actions, at least to the extent of obtaining a stolen vehicle to use for the preliminary surveying of the site, and then going there to set the fire. You went there in the early hours of the previous morning, again at lunchtime with Ludlow, and then returned in the early hours of 10 February equipped with petrol and matches. This was not sophisticated planning, and you were apparently unaware of the CCTV cameras in the street and inside the premises which ultimately led to you be identified. These features do not make your offending less serious but are in contrast to what might have been aggravating features of careful disguise and subterfuge.
22 I am told that you did know that there was a dwelling above the restaurant nor that people were likely to be present there. There is no evidence on which I could find that you were aware that people might be living above the restaurant, and therefore that you might have been endangering them, and I must sentence you on the basis that you did not know that.
23 You deliberately took accelerant, and lit it, and caused extensive and costly damage to the restaurant physically, and inevitably to its business. The use of fire to achieve that was serious offending and you must have known that.
24 While not at as high a level on the spectrum of offences of arson as where the arsonist causes a fire for his or her own financial gain, either by being paid or for insurance fraud, or where it is intended to harm, scare or endanger persons, or for revenge, I still regard this instance as well above the low range of seriousness for arson, and into the mid-range.
25 The charge of arson requires general deterrence, just punishment and denunciation to be important sentencing purposes. In your case specific deterrence is also important as I shall explain shortly.
26 As to the theft of the motor vehicle, it was objectively less serious than the arson, both as to value of what harm or loss was caused, and because your role is alleged as limited to using the vehicle knowing it was likely to have been stolen, rather than actually stealing it yourself. However, I note that you have a considerable history of thefts of vehicles reflected by convictions before and after this instance, and it seems that you deliberately used a stolen car for the purposes both of scouting out and then attending to carry out the arson.
27 That the vehicle was never recovered also reflects your total disregard for other people's property. I regard this instance of theft of a vehicle as calling for a sentence to strongly convey general deterrence, as well as specific deterrence - general deterrence, of course, being to deter others, and specific deterrence to deter you, yourself, from offending of this nature. Further, it calls for some cumulation on the arson offence as it was obviously a separate decision to use a stolen car for the other purpose.
28 You pleaded guilty to these charges at far from an early stage - about two weeks before a trial was due to start. Although not at an early stage, you are still entitled to some leniency for saving the time and cost of a trial and saving stress and inconvenience to witnesses. With such late timing, the plea does little to reflect remorse, but does indicate that you have taken responsibility for this offending. I shall tell you later what the sentence would have been if you had not pleaded guilty but had been found guilty of the same charges after a trial.
29 I turn now to your personal circumstances. You are now aged 33. I am told that you grew up in an environment of violence and criminal activity, as your father abused alcohol and drugs, beat your mother and you, and he also engaged in criminal activity and even took you, as a child, on at least one occasion to accompany him.
30 You say that your mother would frequently leave, taking you and your sisters away from that environment, but ultimately always returning to your father. As a result you were moved between schools, attending five or six different primary schools in various parts of Victoria. You had behavioural difficulties at school and were also diagnosed with attention deficit disorder for which you were prescribed medication. With such a disrupted primary schooling it is not that surprising that you eventually left school after Year 10.
31 You have told Dr Cunningham that through speaking with a Forensicare counsellor while in custody, you have been facing recollections of other abuse during your school years between ages nine and 12. You have not wanted your family to discover this and I shall not repeat the details here, but note that there are considerable issues in your history which, now that you are acknowledging them, would best be addressed through appropriate counselling. Hopefully that can continue while you are in custody and if needed, after your release.
32 Your father died of cancer when you were aged 21. Your mother has re‑partnered, has stable employment and maintains a hope that you can turn your life around.
33 On leaving school you found work as a concreter, and worked for some 13 years at that occupation until, at age 28, you served a term of imprisonment. I am told that after that you found it difficult to obtain stable employment. You have not worked regularly for the last five years and that also coincides with when you have been heavily involved in drug use and associating with other drug users.
34 I gather that you started using illicit drugs as a teenager, and while you have continued to abuse various drugs and alcohol over the years since, that was not always to a debilitating degree, and you were able to maintain employment until about five years ago. I am told that your descent into more serious offending coincided with your use of methylamphetamine spiralling out of control, and your associating mainly with drug-using and criminal peers.
35 You had left home at the age of 17, and soon formed a relationship which continued for some 11 years, but which I am told was characterised by drug abuse by both of you. You have two children from that relationship, a daughter aged ten and a son aged seven. Your daughter, I am told, currently lives in Queensland with one of your sisters, and your son is in foster care. You had regular visits with him and are hoping to re-establish those. You hope to have ongoing contact, and in the long term establish better relationships with your children, and to take a responsible role in relation to their upbringing.
36 You have admitted to an extensive prior criminal history. It occupies greater paper length than might be expected of six court appearances before the occurrence of the present offences. Commencing in 2004, you were before courts for numerous driving related offences and a single charge of wilful damage for which you were fined. It was not until 2014 that you faced courts for offences of dishonesty, including for dealing with property suspected of being the proceeds of crime, thefts of and from motor vehicles, other thefts and burglary.
37 This coincides with, what I am told, was the timing of you becoming more heavily addicted to methylamphetamines, although some of the material reflects that you had been through periods of heavy drug use previously but managed to keep employed and steady your life for intervals.
38 The court appearances increased with breaches of CCOs. You served three months in prison in 2014, to be followed by a CCO with various treatment and rehabilitative conditions, but you breached that by further offending and were sentenced to a further total of five months' imprisonment, again to be followed by a community correction order. In September 2015, you were sentenced for contravention of that order. As I read your record it was contravened by multiple further driving offences as well as handling stolen goods, committing an indictable offence whilst on bail and contravening a family violence intervention order.
39 Your criminal history does you no credit, but I take into account that apart from one early charge of wilfully damaging property, and in September 2015 one of recklessly causing injury and more than one of breaching an intervention order, your prior history does not reflect extensive offences of violence and specifically no prior instance of arson.
40 Also of relevance in your prior record is that at the time of this offending you were on a CCO that had been imposed less than five months previously. That increases your moral culpability, and reflects that the previous sentences had not provided sufficient deterrence to dissuade you from further offending. Indeed there had been an escalation into something as serious as an arson. Nor had you taken the opportunities to rehabilitate under the treatment and rehabilitative conditions.
41 It is not clear from the summaries before me when you were actually arrested after this offending, but I gather that it was no later than April 2016.
42 On 31 May 2016 you were sentenced for other offending including for thefts of and from a motor vehicle, burglary, handling stolen goods and being in possession of an imitation firearm. You were sentenced to a total of 16 months' imprisonment, and although a non-parole period of eight months was set, you completed the whole sentence without being granted parole.
43 Since 24 August 2017 you have remained in custody remanded on the current offending, and that period, I am told, is 452 days which will count as pre‑sentence detention.
44 As it was not until April 2017 that you were charged with the current offending, you were in effect about a year into that other sentence, and that timing meant that you lost the opportunity to potentially receive some concurrency on the current charges to take into account the principle of totality. As I do not have details of the timing or circumstances of the offending for which you served that sentence, it is difficult for me to assess what concurrency might have been applied, but I take into account that you served the whole of the sentence for which a non-parole period had been fixed as half of the total effective sentence, and also that you have been in custody since at least April 2016, being more than the last two and a half years. For this reason I have decided to fix a non-parole period lower than I would otherwise have considered appropriate, to take into account that this sentence is effectively wholly cumulative on that other total sentence.
45 I am told by your counsel that whilst in prison you have served a very considerable amount of time in management units, including a 14 month period covering most of 2017 at Port Phillip Prison, and that you have been more than ten months now in a management unit at Barwon Prison. You have apparently been told that you will soon be moved to a lower security area. Those are decisions for the custodial authorities. I have not been told any detail of why you have been under those conditions. When I asked whether that was due to your own behaviour or other circumstances your counsel responded that it was both.
46 Serving long periods in management units in prison imposes more restriction on movement, and on availability of activities and programs, than would be likely to be available to a prisoner in general population, but I have insufficient information about the extent that this has been due to your own fault. Therefore I am not in a position to significantly modify your sentence for this reason.
47 I have been provided with some certificates indicating programs in which you have engaged whilst in prison, including a 24 hour “Managing Ice Addiction” program and a "Talking Change" program, both in 2016. Those probably occurred before you were in management units.
48 I have been provided with a bundle of drug screens indicating that you have regularly tested negative for any drugs in your system from November 2016 to January of this year. These are to your credit and consistent with your stated intention to remain drug free. If you have managed that while in prison, hopefully you will maintain that commitment to stay away from all illicit drugs on your release and return to the community.
49 I have read a reference from your mother. Her version of the role of your father in your childhood is not quite the same as yours, but she mentions that having been removed from home by her and taken to a refuge after you saw your father hitting her, you were frightened to attend the school you had to go to whilst you were at the refuge. She also mentions that she never found out the reason you were scared to stay at friends' houses, and still feels something happened to you at that stage. She mentions your problematic and angry behaviour in later years, and her regret at the effect of drugs on you. I accept that her reference confirms that you had a problematic childhood, and that she still hopes to see you able to keep off the drugs, and be able to think clearly and cope with everyday life and, she says, return to the person she knows as a hardworking, funny man with a big heart and a huge respect and liking for seniors.
50 I am told that you are still in regular contact with your sisters and they still provide some support for you.
51 I am told that you have ceased all contact with Ms Ludlow since you have been in custody.
52 I am told that you have established a new relationship with a woman while you have been in prison. She has supportively been visiting you there, and I am told that she does not, herself, use any illicit drugs. I am told and you have told Dr Cunningham, that you are attempting to turn your life around whilst in prison, so that when you are released you can live a normal life with her, resume a responsible role as a parent, and return to your former occupation in concreting. You plan to move well away from the Geelong area and your former drug and criminal connections.
53 I have read a report by Dr Aaron Cunningham, forensic psychologist, who assessed you for this case in August of this year. I shall not repeat the history he took from you of your childhood and family background or experiences. You told him that you used cannabis regularly as a teenager then quickly progressed to using ecstasy, amphetamine and methylamphetamine as well as abusing benzodiazepines and alcohol.
54 On testing you for intellectual impairment, Dr Cunningham found that the results placed you in the average range with no indication of intellectual disability. He assessed you as meeting criteria for a diagnosis of Post-Traumatic Stress Disorder which he considered resulted from exposure to trauma during childhood and also experiencing trauma through your adult years. I note that the basis for this I have not been informed of, although he makes a brief reference to you being harmed. I assume that is related to your criminal associations.
55 Dr Cunningham considered that you present with depressive symptoms in the form of emotional numbing and disconnection, and he noted that you show hypervigilance, difficulty concentrating, sleep disturbance, irritability and outbursts of anger and reckless and self-destructive behaviour. He feels that through seeing your father beat your mother you developed a belief that you should protect and defend women from harm, and that this contributed to your undertaking this offending for the benefit of your friend. However, he also finds main contributors to your offending were your substance abuse and association with criminal peers.
56 He considers that you would benefit from continuing psychological and drug and alcohol support in the community on your release from prison, and would benefit from maintaining your current relationship and living in an environment away from the Geelong area. He also thought you may benefit from mental health case management.
57 The only aspect of Dr Cunningham's diagnosis that could support some mitigation in your sentence is what lawyers call “limb five” of Verdins case[1]. That is that your symptoms of PTSD and to an extent depression including in particular hypervigilance, sleep disturbance and irritability, are likely to make your experience of your time in prison more onerous than if you did not suffer from those mental health conditions. Although the prosecution challenged that this was sufficient evidence of any condition making your experience of imprisonment more onerous, I accept that there is, to a limited degree, such evidence. I have taken this into account to a modest extent. I do not regard Dr Cunningham's report as providing any cogent link between your offending and the conditions of post-traumatic stress disorder and depression that he diagnosed.
[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269.
58 The relatively late plea of guilty does not reflect fulsome remorse for this offending. I am told that you were genuinely upset on learning that there were people living above the restaurant and realising the potential danger of what you did to them. It seems to me that the true test of whether you are genuinely remorseful is whether you maintain your currently expressed intentions to turn your life around on coming out of prison, and in particular to staying clear of the drug abuse and drug and criminal associations you had.
59 On your history, it cannot be said that your prospects of rehabilitation are strong, but nor are they hopeless, and with a strong work history until about five years ago, no intellectual incapacity as assessed by Dr Cunningham, and some family and a new partner to support you, you are young enough to build a responsible life for yourself on your release. The key to doing that, in my view, will be whether you genuinely maintain your resolve to stay away from illicit drug use and the associations you had with it. I recognise this will not be easy on your history, but you are of an age, as I have said, when there are prospects of still turning your life around and building a better and responsible future for yourself, so the responsibility for doing that will ultimately be in your hands.
60 As already explained, the seriousness of this offending, in particular this instance of arson, requires a sentence of imprisonment to adequately meet sentencing purposes of community denunciation, just punishment, general and specific deterrence.
61 I have taken into account a range of other sentences imposed over recent years for offences of arson.
62 As your counsel drew to my attention, a recent Court of Appeal case of McPadden[2] is probably the most useful guidance as to current sentencing range, and itself discusses what that range was considered to have been up until that case. It encompasses two offenders' different roles in an arson at a property of a not dissimilar nature, namely a commercial premises as the intended target of an arson but with residential premises attached where there were innocent people placed at risk of serious harm. In that case, however, both the instigator of the offending and the younger person who carried out the lighting of the fire, were aware of the residential part of the premises, and both were guilty of an additional charge of reckless conduct endangering serious injury as a result of that knowledge. The extent of damage at those premises was more limited than in your case but still substantial. The instigator in that case was found guilty after a trial, and sentenced to five years' imprisonment for the charge of arson. He was sentenced to more in total for other offences. The young man who lit the fire and suffered considerable burns himself as a result, pleaded guilty, and gave an undertaking of cooperation invoking further leniency. He was sentenced for the arson charge to 18 months' imprisonment.
[2]McPadden v The Queen [2018] VSCA 57
63 In your case the fire damage was more extensive but you were not aware of there being residential premises above. You have a more extensive prior criminal history, but did not commit the offence for personal financial gain whereas both McPadden and HB did.
64 I agree with your counsel's submissions that the appropriate sentence for you on the charge of arson is somewhere between those two, and as you pleaded guilty thereby admitting your responsibility and saving the need for a trial and as you did not instigate the offence for personal financial gain, I regard your culpability as considerably below that of the appellant, McPadden.
65 I have already said that some cumulation is required between the two charges to reflect the separate decision to use a stolen car to carry out the arson, but, of course, some concurrency to reflect the closeness in time and the connection between the two offences.
66 Would you stand up now please.
67 Ricky William Wilson, on Charge 1, theft of a vehicle, you are convicted and sentenced to seven months' imprisonment. Any driver's licence held by you is cancelled and you are disqualified from reapplying for a licence for 12 months effective today,
68 On Charge 2 of arson, you are convicted and sentenced to imprisonment for two years and nine months (or 33 months). I direct that three months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2 making a total effective sentence of three years.
69 I set a non-parole period of 22 months.
70 I declare 452 days of pre-sentence detention reckoned served and direct that that be entered in court records.
71 I state for the purposes of s.6AAA of the Sentencing Act[3] that but for your plea of guilty and had all other circumstances been the same, I would have imposed a total effective sentence of three years and nine months' imprisonment with a non-parole period of two years and eight months.
[3]1991 (Vic).
72 The net effect is, I have said, a head sentence of three years; 22 months before parole; and of that you have served 452 days. Now I have not updated on the latest calculation but I think that is getting close to one year and three months, reckoned served, leaving about 7 months before you could be eligible for parole. Of course, it is up to the Parole Board to decide whether and when to release you on parole.
73 You can take a seat now while I just check that I have covered what I need to cover.
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MR BARRATT: Yes, Your Honour.
HER HONOUR: Yes, all right. I'll have those orders produced. Yes, I think it's just short of three days or four days depending when the months lie. It's one year and 87 days. So it's just short of one year and three months has been declared reckoned served. All right. I've signed off on those orders. Thank you. All right. Now Mr Barratt, Mr Darling foreshadowed making an application about the costs of last Friday.
MR BARRATT: Yes, Your Honour.
HER HONOUR: But it seems to me that no order – that is against the custodial services for not bringing Mr Wilson to court, it seems to me that's got to be made on notice to the custodial – to Corrections Victoria.
MR BARRATT: Yes, Your Honour.
HER HONOUR: To give it some opportunity to be heard if there is an excuse. My understanding is there was a gaol order made through registry. We
certainly – I gave ten days' notice of the setting down of the timing but I can't make any order without giving Corrections Victoria the opportunity to be heard on that. So if you're going to make an application you'll have to make it and notify them and if it can't be resolved bring it back on in front of me.
MR BARRATT: As Your Honour pleases.
HER HONOUR: All right. I've got a trial about to start so I'll ask – I'm about to leave the Bench before that happens. I'll ask that Mr Wilson be removed from the court please and you'll see him downstairs no doubt.
MR BARRATT: Yes, Your Honour.
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