Eade v The Queen
[2012] VSCA 142
•27 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0205
| BENJAMIN EDWARD EADE | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2011 0207
| BRENT MICHAEL JAMES VANSTONE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NEAVE JA and LASRY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARINGS: | 28 November 2011, 18 June 2012 |
| DATE OF ORDERS: | 28 November 2011 |
| DATE OF JUDGMENT: | 27 June 2012 |
| MEDIUM NEUTRAL CITATION: | [2012] VSCA 142 |
| JUDGMENT APPEALED FROM: | DPP v Eade (Unreported, County Court of Victoria, Judge Taft, 11 August 2011) |
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CRIMINAL LAW – Appeal – Conviction – Criminal damage – Arson – Intent – Offenders intentionally set fire to milk crates inside factory – Factory destroyed by fire – No intent to destroy factory – No knowledge or belief that conduct likely to result in destruction of factory – Offenders pleaded guilty to intentional destruction of factory – Could not in law have been convicted of that offence – Indictment amended – Intentional destruction of milk crates – Crimes Act 1958 s 197, Criminal Procedure Act 2009 s 165.
CRIMINAL LAW – Appeal – Sentence – Criminal damage – Arson – Offenders intentionally set fire to milk crates inside factory – Factory destroyed by fire – No intent to destroy factory – No knowledge or belief that conduct likely to result in destruction of factory – Offenders pleaded guilty to intentional destruction of factory – Sentenced to 2y 4m detention in Youth Justice Centre – Could not in law have been convicted of that offence – Indictment amended – Intentional destruction of milk crates – Low culpability offence – Unintended consequences – Whether reasonably foreseeable – Whether victim impact provisions modify common law – Custodial penalty not warranted – Four months already served – Offenders discharged – Crimes Act 1958 s 197, Sentencing Act 1991 (Vic) ss 3(1), 5(2)(daa), (db), 73.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant Eade | Mr M Turner | Victoria Legal Aid |
For the Appellant Vanstone | Mr V G Peters | Brown McComish Lawyers |
For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
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MAXWELL P
NEAVE JA
LASRY AJA:
Summary
These appeals raise an important question about the mental element in the offence of arson, that being the offence charged under s 197(6) of the Crimes Act 1958 when a person intentionally destroys or damages property by fire. As will appear, the appellants pleaded guilty to having intentionally destroyed a building, and were sentenced to 2 years and 4 months’ youth detention for that offence, even though it was common ground on the plea (and was accepted by the judge) that they had had no such intention.
The appellants were sentenced to a custodial term for an offence which they did not commit and which – on the agreed facts – they could not have committed. Their actual offence was the intentional destruction of milk crates. Though the unintended consequences of their conduct were very serious, the actual offence was one of very low culpability. Particularly in view of their youth and personal circumstances, a custodial term could never have been warranted.
Plainly enough, the convictions cannot stand. The presentment in each case must be amended, to reflect the much less serious offence which the appellants actually committed. Each appellant has already served four months in detention. No further penalty is warranted.
The circumstances
On the night of 31 March 2011, the Camperdown Milk and Cheese Factory burnt down. The factory, built in 1915, was heritage-listed. The fire started when the appellants lit the plastic wrapping on some milk crates on the floor of the factory. They had gained access to the factory after climbing over the barbed-wire fence which surrounded it. They then left the factory and went on to the next-door site of the Aussie Farmers Dairy where they gained entry by smashing a window near the entrance door with a metal pole. They were both very drunk. They had been drinking bourbon and coke all evening.
Each appellant subsequently pleaded guilty to one count of arson and one count of causing criminal damage. An identical sentence was imposed on each of them, as set out in the table below:
Offence
Maximum
Sentence
Cumulation
Arson
15y
Detention in a Youth Justice Centre for 2y 4m
Base
Criminal damage
10y
Detention in a Youth Justice Centre for 3m
–
Total Effective Sentence:
Detention in a Youth Justice Centre for 2y 4m
Section 6AAA Statement: The Judge stated that the sentence he would have imposed if the appellants had been convicted of these offences after a trial would have been detention in a Youth Justice Centre for a term of 3 years.
An application for leave to appeal against sentence was filed on behalf of each appellant. On 16 November 2011, Maxwell P granted leave in each case, on the basis that it was reasonably arguable that the sentence imposed was manifestly excessive. Both applications were referred for hearing, as a matter of priority, by a bench of three.
The appeals came on for hearing on 28 November 2011. By that time, a supplementary submission had been filed on behalf of the Director of Public Prosecutions. As will appear, that submission conceded that the sentencing discretion had miscarried and that each of the appellants should be resentenced to a lesser sentence. This represented an almost complete reversal of the Crown’s previous position as advanced, first, on the plea before the sentencing judge and, secondly, in the written case as originally filed in response to the applications for leave to appeal. The supplementary submission contained thoughtful, clear and principled analysis, which was of great assistance to the court.
At the conclusion of argument, we came to the unanimous conclusion that the appeals should be allowed, the sentences of detention set aside and the applicants re-sentenced to community-based dispositions. We made orders setting aside the existing sentences and releasing the appellants on bail pending resentencing.
Our further analysis of the nature of the offence of arson has led us to conclude that, on the uncontested evidence as to their state of mind, the appellants could not have been convicted of intentionally destroying the factory, that being the offence to which they pleaded guilty.
Intentional destruction of property
The appellants used cigarette lighters to set fire to the plastic wrapping on the milk crates. They were aware, when they left the factory, that the plastic was still burning. Their counsel emphasised on the plea, however, that neither of them had at any stage intended to burn down the factory. Nor, when they left, had they appreciated the risk of the fire spreading.
These statements were not challenged by the prosecution, nor questioned by the sentencing judge. (As will appear, his Honour in sentencing the appellants accepted the statements as truthful.) The prosecutor submitted, however, that considerations of deterrence and denunciation were ‘of very great importance … despite the apparent youth of the offenders’ and that the ‘starting-point’ for sentence was a custodial term.
At the conclusion of the plea, the judge indicated his view to counsel:
The objective gravity of this offending must require either a term of imprisonment in an adult gaol or a Youth Justice Centre order.
… I regard a community disposition as quite inadequate in meeting the serious nature of the offending and the requirement for general deterrence to be uppermost.
Each of the appellants was to be assessed for a Youth Justice Centre. Explaining the proposed course, his Honour said:
The gravity of the offending in this case is very substantial. The setting on fire of an iconic building and the very large amount of damage that has occurred requires a term of detention in a Youth Justice Centre, notwithstanding the age of both Mr Eade and Mr Vanstone.
In reasons for sentence published subsequently, the judge described the offending in these terms:
This is not a case of children unthinkingly playing with matches. Both of you trespassed onto the factory site and set fire to plastic wrapping of milk crates. You then left while the wrapping was still alight and proceeded to enter the adjoining site of the Aussie Farmers Dairy.
I accept that you did not intend the consequences that arose. However, you engaged in inherently dangerous conduct which destroyed a building of great social worth which was part of the social fabric, history and culture of the Camperdown community.
I accept that you were intoxicated and your judgment may have been affected by your consumption of bourbon. However, the fact that you were drunk is not an excuse for your actions. In my view, the objective gravity of your offending is substantial and, notwithstanding your age and relative immaturity, general deterrence is a significant sentencing consideration.[1]
[1]DPP v Eade (Unreported, County Court of Victoria, Judge Taft, 11 August 2011), [16]–[18] (‘Reasons’) (emphasis added).
The Director’s supplementary submission conceded – rightly, in our view – that the judge here fell into error. According to the submission:
There is no gainsaying the offending in question was serious – any crime of arson where a building is destroyed is always serious. However, what was important in this case was that there was no intention to cause the destruction of the building, but simply a desire to burn plastic wrapping/crates.
In other words, the appellant fell to be sentenced for doing an act which had ‘unintended consequences’. In this respect, an analogy with causing serious injury offences is helpful – a common example is a young man who gets into a fight with a victim, punches him to the face causing him to fall backwards and strike his head on pavement. The victim suffers brain damage. In which case, whilst the extent of the injuries is always relevant to victim impact, the offender is not to be punished for intending to cause the full extent of the injuries inflicted – that is to say, the unintended consequences of brain damage.
…
In short, the appellant fell to be sentenced for intentionally burning wrapping covering plastic crates with the unintended consequences of burning down the factory premises; and not for intentionally burning down the factory premises. They are two quite different crimes; with the latter crime invariably warranting condign punishment.[2]
[2]Emphasis added.
As the Court subsequently pointed out to the parties, the error was even more fundamental than this submission recognised. Quite simply, on the agreed facts as to the appellants’ state of mind at the time, they could not have been convicted of the offence to which they pleaded guilty, that is, the offence of intentionally destroying the building. This was evidently not appreciated by either defence counsel, or by the prosecutor, and the issue was not raised for the sentencing judge’s consideration.
Arson is a sub-category of the offence of intentionally destroying or damaging property, under s 197 of the Crimes Act 1958. Section 197(1) provides:
A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
Section 197(6) provides:
An offence against this section committed by destroying or damaging property by fire shall be charged as arson.
The element of intention is dealt with exhaustively by s 197(4), which provides:
For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if—
(a)his purpose or one of his purposes is to destroy or damage property; or
(b)he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.
This subsection makes clear that proof of the offence depends on showing that the offender had turned his/her mind to the likely destruction or damage of property, either because that was his/her conscious purpose or because (s)he was aware that destruction or damage was ‘more likely than not to result’. Of these alternatives, only the first is what would ordinarily be understood as intentional conduct. The second alternative is a statutory form of recklessness.[3] As the Director’s submission noted, the subsection does not incorporate any concept of negligence.
[3]Cf The Queen v Crabbe (1985) 156 CLR 464, 469–70; see R v Stephenson [1979] 1 QB 695 (CA).
As a matter of ordinary language, the conduct which s 197(1) criminalises is the intentional bringing about of a result, that is, the destruction of or damage to the property the subject of the charge (the ‘subject property’). It follows, in our view, that s 197(4) must be read as requiring proof that the offender:
(a) had the purpose of destroying or damaging the subject property; or
(b) knew or believed that his conduct ‘was more likely than not to result in’ the destruction of or damage to the subject property.
That is certainly how the former s 197 was interpreted. As first enacted in the Crimes Act 1958, s 197 created the offence of ‘unlawfully and maliciously [setting] fire to any dwelling-house any person being therein’. In R v Whitehead,[4] Hudson J held that the word ‘maliciously’ involved proof by the Crown that
the accused did the act or acts which resulted in setting fire to the house with the intention of bringing about this result, or that he did such act or acts foreseeing that they would probably produce this result, but was reckless as to the consequence of his acts.[5]
[4][1960] VR 12, 13.
[5]Emphasis added.
We recognise, however, that the language of s 197(4) is not so specific. Thus, s 197(4)(a) speaks of the offender having a (generalised) purpose ‘to destroy or damage property’. Read literally, the subsection would have the result that a person who destroyed particular property would be taken to have done so intentionally, even though he/she had no purpose to destroy or damage that property and no awareness that his/her conduct was likely to destroy or damage that property.
Given the clear language of s 197(1) itself, Parliament cannot have meant by subsection (4) to deem unintended (and uncontemplated) damage to property to be intentional damage, carrying a maximum penalty of 10 years’ imprisonment. As we have noted, this would have represented a wholesale departure from the previous position regarding arson offences.
The present case illustrates the point well. As the judge accepted, the appellants intended only to damage the milk crates. They had neither the ‘purpose to destroy or damage’ the milk factory, nor any awareness that its destruction was ‘more likely than not to result’ from their conduct. On a literal reading of s 197(4), however, the fact that they had the ‘purpose to destroy or damage property’ (ie the milk crates) would be enough to establish that they had intentionally destroyed the factory. But, as the Crown’s submission stated unequivocally, ‘they are two quite different crimes’. Subsection (4) cannot have been intended to convert a minor crime into a major one.
A review of the extrinsic materials confirms this conclusion. The present form of s 197 was enacted by the Crimes (Criminal Damage) Act 1978 (Vic), which inserted a new Division 3 into Part I of the Crimes Act 1958. As the Second Reading speech made clear, the amending legislation was the result of the work of a criminal law working group, which relevantly recommended that – in contradistinction to the Criminal Damage Act 1971 (UK) – the offence be defined not by reference to alternative states of mind (intention and recklessness) but by reference only to intentional conduct (as defined).
According to the Second Reading speech:
Proposed s 197(4) and (5) provides to the effect that a person is to be taken as acting intentionally if he acted in either of two ways: first, with the purpose of causing the relevant consequences; or second, with the knowledge or belief that the relevant consequences were more likely than not to flow from his conduct.
The second part of the definition of intention is designed to include what is often spoken of as recklessness. … The working party did not wish to leave a doubt as to the meaning of the word ‘intentionally’. They thought it best to include all the relevant states of mind under the heading ‘intention’, because one word is less confusing for a jury than two, and because they felt that what has been called ‘reckless’ conduct by the courts is more accurately described as ‘intentional’. This view is in accordance with a long line of authoritative writing on mental states in criminal law. [6]
[6]Victoria, Parliamentary Debates, Legislative Assembly, 18 October 1978, 4811 (Mr MacLellan) (emphasis added).
Plainly enough, what Parliament had in mind was criminalising conduct engaged in by an offender who either intended to cause ‘the relevant consequences’ or realised that ‘the relevant consequences’ were more likely than not to flow from his conduct. In the circumstances, in our view, the Crown was right to concede that s 197(4) ‘appears to give statutory effect’ to the definition of ‘maliciously’ in R v Whitehead.
This analysis has very important consequences for these appellants. For the reasons we have given, the appellants did not commit the offence to which they pleaded guilty. That is, they did not (in the words of the indictment) ‘intentionally and without lawful excuse destroy by fire a building namely the Camperdown Milk and Cheese Factory …’. On the evidence before the sentencing court, they could not have been convicted of that offence. Their offence was the intentional destruction of the milk crates and the plastic wrapping around them.
The Crown’s further submission conceded that this was so. How then to change the terms of the conviction recorded against them? The solution was said to be for the Court, either in the exercise of its inherent power[7] or under s 165 of the Criminal Procedure Act2009, to amend the indictment in each case to re-particularise the offence. The amended indictment would record each appellant as having pleaded guilty to a charge that he
intentionally and without lawful excuse destroyed by fire property, namely, plastic sheeting and milk crates.
Counsel for each of the appellants concurred in this proposed course. In our view, the better course is to proceed under s 165. We will make orders accordingly.
[7]See O A A v The Queen [2010] VSCA 155, [16].
The final issue on which further submissions were sought was the question of the unintended consequences. How was the unintended destruction of the factory to be brought to account in sentencing the appellants on the (relatively minor) offence of destroying milk crates?
The unintended consequences, and the requirement to consider victim impact
The accepted position at common law, both in this State[8] and elsewhere,[9] appears to be that
if the consequences of the [offender’s] acts are not such as would reasonably have been foreseen by him, then such consequences ought not to be used against him; but if they ought to have been foreseen by him they are relevant circumstances; the consequences, however, should not be allowed to take over from all other considerations.[10]
[8]DPP v Arvanitidis [2008] VSCA 189, [52].
[9]Josefski v The Queen [2010] NSWCCA 41, [3]–[4], [39] and the cases there referred to; R v Agius (2000) 115 A Crim R 387.
[10]R v Boyd [1975] VR 168, 172; see also R v Boxtel [1994] 2 VR 98, 103–4; DPP v Cook (2004) 141 A Crim R 579, 586–7 [17].
In a further supplementary submission, however, the Crown contends that the common law has been displaced by the requirement in the Sentencing Act 1991 (Vic) that sentencing courts consider the impact of offences upon victims. For the reasons that follow, we think the Crown’s submission is correct, that is, that ss 5(2)(daa) and 5(2)(db) of the Sentencing Act 1991 (Vic) have displaced the common law requirement of reasonable foreseeability.
The Sentencing (Victim Impact Statement Act) 1994 (Vic) amended s 5(2) of the Sentencing Act 1991 (Vic), by adding to the list of matters required to be considered by the sentencing court:[11]
(da) the personal circumstances of any victim of the offence; and
(db) any injury, loss or damage resulting directly from the offence.
The purpose of this Act was stated to be:
to require courts, in sentencing an offender, to have regard to the impact of the crime on the victim.[12]
[11]Sentencing Act 1991 (Vic) ss 5(2)(daa), (db) as inserted by Sentencing (Victim Impact Statement Act) 1994 (Vic) s 5.
[12]Sentencing (Victim Impact Statement Act) 1994 (Vic) s 1.
The 1994 Act also introduced a definition of ‘victim’, as follows:
victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.[13]
Importantly, this definition makes it irrelevant whether or not the injury, loss or damage suffered by a victim was ‘reasonably foreseeable’ by the offender’. The only requirement is that the injury, loss or damage be a ‘direct result’ of the offence.
[13]Sentencing (Victim Impact Statement Act) 1994 (Vic) s 4(1)(b). The definition remains substantially unchanged. The only change is that the phrase ‘(including grief, distress, trauma or other significant adverse effects)’ has been inserted following the word ‘damage’ – see Victims of Crime Assistance (Amendment) Act 2000 (Vic) s 22(1).
In 2005, s 5(2)(daa) of the Sentencing Act 1991 (Vic) was inserted,[14] obliging the sentencing court to have regard to ‘the impact of the offence on any victim of the offence’. In our view, the introduction of s 5(2)(daa), which explicitly links the ‘impact’ suffered to the broad definition of ‘victim’ in s 3(1), puts beyond doubt Parliament’s intention to displace the common law requirement that unintended consequences of an offence must be ‘reasonably foreseeable’.
[14]Sentencing (Further Amendment Act) 2005 (Vic) s 3.
A related issue was considered in DPP v Arvanitidis.[15] In this case, the fact that the victims of offences of assault and recklessly causing injury were police and ambulance officers was found not be an aggravating circumstance of the offence because the offender’s delusional state meant he did not realise they were in fact police and ambulance officers. Redlich JA applied the common law principle of unintended and unforeseen consequences.[16] Since the Court was there concerned with the unknown status of the victim, not the unintended consequences of the offender’s actions, the decision does not affect the conclusion we have reached.
[15][2008] VSCA 189.
[16]Ibid [52].
As the Crown has argued, the Victorian statutory context is quite different from that which applies in New South Wales. The New South Wales Court of Criminal Appeal found that the equivalent provisions[17] did not displace the common law.[18] Section 3A of the New South Wales statute provides, relevantly, that:
[17]Sections 3A and 21A(2)(g) of the Crimes (Sentencing Procedure Act) Act 1999 (NSW).
[18]Josefski v The Queen [2010] NSWCCA 41, [39].
The purposes for which a court may impose a sentence on an offender are as follows:
…
(g) to recognise the harm done to the victim of the crime and the community.
Section 21A(2)(g) provides:
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
The New South Wales Court of Criminal Appeal declined to find that these provisions had altered the common law ‘in the absence of any clear legislative statement to the contrary’.[19] Unlike the position in Victoria, however, the comparable New South Wales legislation does not explicitly remove the requirement of ‘reasonable foreseeability’ from consideration of harm suffered by victims.
[19]Ibid (Howie J with whom James and Davies JJ agreed).
Accordingly, we do not consider it necessary to consider whether the – clearly unintended – destruction of the building by the appellants was ‘reasonably foreseeable’. The considerations which we are required to take into account are the injury, loss or damage resulting directly from the appellant’s offending,[20] and the direct impact of the offending on any victims.[21]
[20]Sentencing Act 1991 (Vic) s 3(1), 5(2)(db),
[21]Sentencing Act 1991 (Vic) s 5(2)(daa).
According to the sentencing judge:
Damage to the factory is estimated at $170,000, which represents its insurance value of $135,025 and associated insurance and legal fees. The cost of damage to the second building is $2,105.30.[22]
[22]Reasons, [9]
The relevance of general deterrence
On the plea, the prosecutor submitted that ‘considerations of deterrence and denunciation are of very great importance in this matter, despite the apparent youth of the offenders.’ The sentencing judge agreed, holding that general deterrence was ‘a significant sentencing consideration’.[23]
[23]Reasons, [18].
In the supplementary submission, the Director again conceded error:
Plainly, and with regret, the prosecutor’s submission was misconceived. And in the circumstances of this case, while general deterrence was a relevant consideration …, the judge has erred to the extent of allowing deterrence to outrank rehabilitation as the dominant sentencing purpose.
Once again, the Director’s submission is plainly correct. The appellants were sentenced under the provisions of the Sentencing Act 1991 (Vic), which expressly includes general deterrence amongst the purposes for which sentence may be imposed.[24] Citing this Court’s decision in Director of Public Prosecutions v S J K,[25] the Director submitted that while general deterrence was not to be viewed as excluded altogether, what was
of critical importance is the relative weight to be attached to the sentencing purpose of general deterrence. And, with respect, the decision in C N K v The Queen simply highlights what a careful analysis of the authorities reveals; namely, it is a rare case in which a judge is permitted to materially increase sentence imposed on a young offender by dint of general deterrence.[26]
[24]Sentencing Act 1991 (Vic) s 5(1)(b).
[25][2002] VSCA 131.
[26]In C N K v The Queen [2011] VSCA 228, this Court concluded that the principle of general deterrence had no application to the sentencing of a young offender under the Children, Youth and Families Act 2005 (Vic). This was so, the Court held, because the statutory language conveyed, as a matter of necessary implication, a clear legislative intention to exclude general deterrence.
In the light of the appellants’ individual circumstances (referred to below), the Director conceded that neither appellant was an ‘appropriate vehicle’ for general deterrence. In relation to Mr Eade, for example, the Director said:
Quite simply, it would be inhumane of the criminal justice system to put this young man up on a sentencing pedestal and impose a sentence designed to send a salutary message to other would-be offenders. His plight is something that deserves mercy rather than aggravated punishment.
A like submission was made in relation to Mr Vanstone.
As we said earlier, these were exemplary submissions, notable for their fairness and for their proper acknowledgment of the particular circumstances of the case. In our view, the Director was right to concede that the emphasis placed on general deterrence was erroneous.
Personal history – Eade
Mr Eade was aged 19. He had no prior convictions. As the judge found, his life had been ‘most difficult’.[27] His parents separated when he was two months old. He lived with his paternal grandparents until he was eight, and then with his mother. He moved from place to place at frequent intervals. He witnessed extensive domestic violence, which included seeing his mother’s partner beating her.
[27]Reasons, [21].
Mr Eade’s schooling was dislocated. He attended many schools and completed Year 10 whilst living in a shed and caring for himself. As the judge rightly said, that was a remarkable achievement.
Mr Eade had been forced to fend for himself from the age of 14. Neither of his parents was present in court. He had what the judge described as ‘a limited work history’, but a ‘disturbing drug history, having used cannabis extensively from the age of 14.’ The report of Dr Cidoni, a consultant psychiatrist, tendered on his behalf stated that he had spoken of feeling depressed since childhood. Mr Eade reported several attempts at suicide, including an overdose in October 2010.
Dr Cidoni expressed the opinion that Mr Eade did not suffer from pyromania and that his offending was clearly related to alcohol and intoxication and to his impulsivity. Mr Eade should have treatment which would include anti-depressant medication and individual psychotherapy for personality issues. Dr Cidoni considered that Mr Eade was ‘likely to be extremely vulnerable if imprisoned and that there [was] a risk of self-harm.’
On the basis of a pre-sentence report, the judge accepted that Mr Eade would be ‘most vulnerable in the adult prison system and likely to be vulnerable in a senior Youth Justice Centre. You clearly present as slight and at risk in the adult system.’ His Honour was satisfied that Mr Eade had ‘real prospects of rehabilitation if … provided with stable employment, accommodation and social support.’[28]
[28]Reasons, [29].
Personal history – Vanstone
Unlike his co-offender, Mr Vanstone was supported by a large number of family members at the initial sentencing. The report of a forensic psychologist concluded that he had symptoms of ‘moderate reactive depression’. Mr Vanstone’s parents separated when he was four and his father moved to Alice Springs when he was 10. The father had, however, re-partnered, had attended the plea in mitigation and proposed to return to Victoria to support his son.
Mr Vanstone lived in a caravan at the back of his mother’s home. He left secondary school after being perceived as having behavioural problems, before completing Year 10 at TAFE and enrolling in an aged care course. Since leaving school, he had had short-term casual employment, none of which lasted much more than three months.
The judge said:
You have had anger management difficulties since the beginning of primary school when you were bullied. You have used marijuana from the age of 13 and consumed it heavily for a period. You continue to use marijuana on a less frequent basis. You have also experimented with other illicit drugs. You also reported binge drinking. To your credit, you have independently sought assistance in relation to substance abuse through the Western Region Alcohol & Drug Centre [WRAD]. You have attended eight sessions at WRAD between April and June 2011. Until your sentence was imposed you were working.
You, too, are a young offender who has made full admissions. You are clearly remorseful for your conduct. The plea of guilty was entered at an early stage and, in my view, despite two prior appearances for dissimilar matters in the Children’s Court, you have genuine prospects of rehabilitation.[29]
[29]Reasons, [37]–[38].
Resentencing
As noted earlier, when these appeals first came on for hearing, the Court concluded that the sentences of detention must be set aside. At that time, a community-based disposition was thought appropriate. Investigations were undertaken into the appropriateness of making community correction orders, which had recently become part of Victorian sentencing law.[30] The pre-sentence reports obtained by this Court[31] assessed each appellant as suitable for such an order.
[30]Sentencing Amendment (Community Correction Reform) Act2011.
[31]Pursuant to Sentencing Act 1991 (Vic) s 96, the predecessor to the current power under s 8A.
The basis on which this Court now comes to resentence the appellants is dramatically different from the basis on which those reports were obtained. It was only after that process had taken place that the Court raised with the parties the apparent unlawfulness of the convictions recorded, and the Crown responded by conceding that the appellants could only have been convicted of the much less serious offence.
Upon the amending of the indictment in each case, each appellant will stand convicted of having intentionally destroyed, by fire, plastic wrapping and plastic crates. They neither intended the destruction of the factory nor had any awareness that its destruction was likely to follow from setting fire to the milk crates.
At the same time, for reasons given earlier, the Court is bound to take into account the consequential destruction of the factory, because of the loss and damage caused to the building owner (financial loss). Moreover, as the trial judge noted, the building was of ‘great social worth [and] was part of the social fabric, history and culture of the Camperdown community.’[32]
[32]Reasons, [17].
What is of decisive significance on the question of resentencing, however, is the fact that each of the appellants spent nearly four months in detention before his sentence appeal was upheld and he was released on bail. But for the erroneous entry, and acceptance, of pleas of guilty to an offence which the appellants had not committed, it seems certain that no custodial order could have been contemplated.
In the circumstances, in our view, the appellants have already been much more severely punished than was justified for the offence they committed, which was an offence of very low culpability. No further penalty is warranted, in our view. The appellants, having been convicted on both counts, will be discharged, in accordance with s 73 of the Sentencing Act 1991 (Vic).
The compensation orders made against the appellants relating to the destruction of the Camperdown Milk and Cheese Factory should also be set aside. The compensation orders relating to the intentional damage to the Aussie Farmers Dairy are confirmed.
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