Maddocks v The Queen
[2020] VSCA 47
•13 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0056
| DAVID HAYDEN MADDOCKS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 March 2020 |
| DATE OF JUDGMENT: | 13 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 47 |
| JUDGMENT APPEALED FROM: | [2019] VCC 188 (Judge Stuart) |
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CRIMINAL LAW – Appeal – Sentence – Arson – Manifest excess – Whether sentence of imprisonment of 6 years with non-parole period of 4 years manifestly excessive – Plea of guilty – Significant prior convictions – Disadvantaged background – Sentence towards upper end of sentencing range – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | James Dowsley & Associates |
| For the Respondent | Mr P Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
WEINBERG JA:
On 5 February 2019, the applicant pleaded guilty in the County Court to one charge of arson, contrary to s 197 of the Crimes Act 1958. The maximum term of imprisonment for arson is 15 years.
On 22 February 2019, the applicant was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years. Pre-sentence detention of 324 days was declared, and the judge stated that but for the applicant’s plea of guilty he would have sentenced him to a total effective sentence of 8 years, with a non-parole period of 5 years.
The applicant now seeks leave to appeal against his sentence, contending that the head sentence and the non-parole period are both manifestly excessive.
Circumstances of the offending
The applicant’s offending occurred on 4 April 2018. Mr Michael Becher was the primary victim of the offending.
Mr Becher worked as a contractor, restoring motor vehicles, from a property he leased in Lyndhurst (‘the property’). A large shed was located on the property, where Mr Becher performed the restoration work. Residential premises were also located on the property, some 100 metres from the shed. The house was a four-bedroom weatherboard house. At the time of the offence, Mr Becher was living in the house with two housemates.
Approximately 5 years prior to the offending, Mr Becher and two of the applicant’s sisters entered an agreement whereby Mr Becher permitted the applicant’s sisters to agist their horses on the property for $25 per week. Over time, the applicant’s sisters fell behind in the agistment fees. There were disagreements between Mr Becher and the applicant’s sisters and, after some years, Mr Becher sold the horses to another person.
The applicant’s sisters were aggrieved by the sale, and the matter was reported to the police. Mr Becher explained his reason for selling the horses to police as being ‘to get recompense for the agistment fees that were outstanding’.[1] Nothing further then came of the matter, so far as the complaint to the police was concerned.
[1]DPP v Maddocks [2019] VCC 188 (‘Reasons’), [6].
On 24 January 2018, the applicant was released from prison and commenced to serve a 24-month community correction order (‘CCO’). On about 31 March 2018, the applicant became aware of the fact that his sisters’ horses had been sold by Mr Becher.
On 3 April 2018, at 11:22 pm, the applicant called a co-offender, Craig Stewart, and told him that he was in Cranbourne. Stewart replied by saying that he just ‘pinched’ some fuel and timber for the applicant to use. The applicant then told Stewart where they should meet. Stewart then said that he stole the wrong kindling and that he should have taken red gum, which is better for heat. In response, the applicant said, ‘Yeah, the shed we’re goin’ in, it’s gunna be fuckin cold, man’.
Some four hours later, at 3:28 am on the following morning, the applicant sent a text to Stewart:
On my way to crack shack.
At 5:30 am, approximately two hours after sending that text, the applicant and an unknown co-offender, travelled in convoy to the property. They parked their vehicles, and then crossed over a paddock, before gaining access to the shed. The shed contained vehicles, farming equipment and other miscellaneous items.
The applicant and his co-offender poured petrol in and around the shed and its contents, before igniting the petrol, causing an intense fire. After lighting the fire they then ran out of the shed across paddocks and back to their respective cars. Four occupants were asleep in the house. They managed to flee, and escaped injury.
The fire totally destroyed the shed and its contents. Most of the property inside the shed belonged to Mr Becher or his customers. The contents were not insured. The value of the property destroyed, including the shed, was about $80,000. Although the weather conditions at the time were not classed as high or extreme, Victoria was in a fire danger period at the time of the offending.
In the hours following the fire, the applicant drove to locations where he could watch and film the fire. He made calls to one of his sisters and to two associates in which he bragged and exaggerated about what he had done. During those calls, he variously said:
Go to the news you’ll see it, the channel 7 news fuckin’ mate, you should see all the fire brigade and shit here. Oi we got his shed and the house … fuck him, he shouldn’t have stolen the, listen to the sirens.
…
You should have seen how black the smoke was cunt, and all the gas tanks explode.
…
Suck shit dog, you mess with my family. I still have all the dust n’ shit in my socks cunt.
…
Where’s this cunt gonna sleep now cunt, aw poor baby, let him threaten to lag me about the red car now.
…
I have a big weekend every day … had a bit of fun last night.
…
Fuckin’ burnt down some cunt’s house down with him inside.
…
Yeah he sold my sister’s horse, so … I went there last night and tipped a few litres of fuel around the house and sat there and recorded it.
…
Fuck the dogs, you fuck with my family, you fuck with my fires.
The applicant was arrested later that afternoon. At approximately 5:35 pm, he participated in a record of interview. In the course of the record of interview, the applicant gave an account of his movements on the evening of 3 April 2018 and the early hours of 4 April that was, in the judge’s words, ‘basically, all lies’.[2]
[2]Ibid [58].
Applicant’s background
The applicant was 29 years of age at the time of his offending. He was 30 at the time of sentencing. He had a traumatic childhood. His father was a high-ranking member of a chapter of the Hells Angels, who was murdered by a number of his fellow club members in front of the applicant and his family when the applicant was four years of age. His mother re-partnered with a man who then regularly bashed his mother and her children. He was on the streets by the age of 12.
The applicant suffered from ADHD. This, together with his antisocial behaviour, prevented him from applying himself at school. He was expelled from almost every school he attended, and left school altogether after completing Year 10 at a high school in Tasmania.
The applicant commenced an apprenticeship in mechanics, but failed to complete it after her mother’s partner broke his arm in two places. Evidence tendered on the plea was to the effect that the applicant suffers from a complex post-traumatic stress disorder, with his trauma stemming from violence and sexual abuse he suffered as a child.
To his credit, the applicant completed a bricklaying apprenticeship in 2007, and subsequently worked as a bricklayer and mechanic for various employers. He has one son, who is in the care of his mother.
As to his drug and alcohol history, the applicant started smoking cannabis in Year 7. He was smoking methamphetamine by the age of 16. This escalated to daily use, up to a gram a day. The evidence on the plea was that he also drank up to 24 premixed bourbon and cokes a day. He has also abused ecstasy and sniffed paint.
The applicant has an extensive criminal record. On the judge’s count,[3] the applicant had been dealt with for no less than 138 criminal offences during the course of 15 court appearances between 2007 and 2017. Those offences included aggravated burglary, robbery, reckless conduct endangering serious injury, discharging a missile to cause injury, recklessly causing injury, burglary, assault with a weapon, possessing a controlled weapon without lawful excuse, unlawful assault, threat to kill, criminal damage, theft, receiving stolen property, dangerous driving during the course of a police pursuit, assault police, hinder police, criminal damage, dealing with property suspected of being the proceeds of crime, failing to answer bail, committing an indictable offence while on bail, various gaol offences, contravening the provisions of multiple court orders, and numerous driving offences.
[3]Ibid [73].
Additionally, during the plea, the judge was told that the applicant had a prior conviction for two counts of arson in 2005, ‘when he was a teenager’.
The plea hearing
On the plea hearing, the prosecution tendered the summary of prosecution opening; video and audio footage of the fire, taken by the applicant on the morning of 4 April 2018; a victim impact statement of Mr Becher; and a set of photographs showing the damage to the shed and its contents.
On behalf of the applicant, the following documents were tendered:
·a 2-page letter from the applicant to the judge, in which he acknowledged the ‘serious nature’ of his crime and said that there was no excuse for the way he had acted or spoken;
·a medical report from a family physician, Dr Tony Marshal, who set out the history of the applicant’s treatment between 1997 and 2011 at the clinic at which Dr Marshal practised;
·a report from a consulting psychologist, Warren Simmons, who examined the applicant at the Melbourne Custody Centre in November 2012; and
·a report from Dr Aaron Cunningham, a psychologist who examined the applicant ‘through [a] video link on 1 February 2019’.
Character evidence was called on behalf of the applicant, from Timothy Sproule. Mr Sproule had known the applicant for about two-and-a-half years. He employed him for a period in 2017, and another period in early 2018 (after the applicant was released from custody, and prior to the present offending). Mr Sproule described the applicant as a ‘really good’ worker, one of those workers ‘who will think — be quite single-minded in the task’.
During the course of the plea, the applicant’s counsel submitted that a combination sentence of a term of imprisonment and a community correction order was an appropriate disposition. There was initially some uncertainty in argument about the maximum term of imprisonment that could be combined with a CCO, leading to the following exchange:
HIS HONOUR: Quite frankly, [defence counsel] whether it’s one year or two years, it’s still — to my mind, unless you convince me otherwise, not in the ballpark.
COUNSEL: Yes, I hear your Honour. If perhaps I could address your Honour at the conclusion of my submissions in relation to disposition?
Reasons for sentence
The judge commenced his reasons for sentence with a description of the offending and the circumstances surrounding it.[4] The judge noted that at the time of the offending, the applicant was the subject of a CCO, having been sentenced at the Frankston Magistrates’ Court on 31 March 2017 to a total effective sentence of 12 months, with 66 days presentence detention reckoned as time already served.[5] The judge then observed that the applicant had been released from prison on 24 January 2018 and commenced to serve the 24-month CCO that had been imposed upon him — conditions of which included supervision, treatment, rehabilitation and the performance of unpaid community work.[6]
[4]Ibid [1]–[59].
[5]Ibid [7].
[6]Ibid [8].
Having described the offending and the circumstances surrounding it, the judge turned to Mr Becher’s victim impact statement, quoting from it as follows:
Losing my shed has financially made life hard. Losing my tools, my cars. I feel like I’ll never be able to get any of it back as it took me 20 years to collect all of that.
Every day I walk outside and see my burnt shed, and all the cars and tools. I haven’t been able to work in the shed any more. I do up cars part-time in the shed for work, so I’ve lost income from this. One of the cars that was destroyed I was working on for someone else, so he’s been affected as well. Since the fire, I’ve had a hard time sleeping. Every noise outside makes me feel like someone is out there.[7]
[7]Ibid [62]–[63].
Additionally, the judge noted that Mr Becher had also lost ‘sentimental things … that will never be able to be replaced’.[8]
[8]Ibid [64].
The judge said that he was required to ‘strictly look to the charge in question as it relate[d] to the shed and the shed alone’, and not to ‘the potential for further fire damage or hurt to anybody else in the house’.[9]
[9]Ibid [65].
The judge then referred to the authorities of Semaan v The Queen[10] and McPadden v The Queen,[11] to which he had been referred. The judge said that McPadden provided ‘a yardstick, but a yardstick only, in order to assist in the sentencing process’.[12] The judge compared McPadden to the applicant’s case as follows:
Differences in the circumstances of McPadden, as opposed to the circumstances that I must sentence you, abound.
You pleaded guilty and McPadden ran a trial. McPadden sought financial gain and you seem not to be so motivated at all, but for reasons which I will come to. In McPadden there was a threat to others. Here, there was none. McPadden was a person of good character. You are the opposite, having an extensive criminal history, which I will come to shortly. And in this case, not only is there a strong need to deter you from further offending, there is also a need for the sentence that I impose to take into account the need to protect the community from you.[13]
[10][2017] VSCA 261 (‘Semaan’).
[11][2018] VSCA 57 (‘McPadden’).
[12]Reasons [71].
[13]Ibid [71]–[72].
Next, the judge described in some detail the applicant’s extensive criminal history. The judge noted that between 2007 and 2018, the applicant had been sentenced to gaol on no less than 12 occasions, resulting in the applicant serving four periods of incarceration. The judge concluded this part of his analysis by saying:
I conclude that those gaol periods have had no impact in deterring you from further offending. Your prior offending demonstrates your propensity for violence and dangerous conduct. They also demonstrate your complete disregard for court orders, including community correction orders and the like, suspended sentence orders, bail orders, intervention orders and license disqualifications and suspensions.[14]
[14]Ibid [80].
The judge then referred to the pride with which the applicant has spoken of his offending, saying that ‘rarely does a sentencing court have such an insight into the motivations and actions of an offender as I do in this case’.[15]
[15]Ibid [81].
The judge rejected a contention that it was the applicant’s poor impulse control that led to his offending, saying that this contention belied the true facts because the applicant knew of his sisters’ grievance ‘not an hour, not four hours, but four days beforehand’.[16] Additionally, the judge noted that the applicant’s offence was planned and executed over a period of time (commencing late on the evening of 3 April 2018). As the judge put it:
Far from this being the result of poor impulse control, I am satisfied beyond reasonable doubt that this was a premeditated considered act of which you were proud.[17]
[16]Ibid [82].
[17]Ibid [84].
The judge accepted that, in part, the applicant’s desire to act protectively towards one of his sisters explained some of his thinking. The judge was satisfied beyond reasonable doubt, however, that there were ‘more sinister reasons’ which drove the applicant to light the fire. He identified those reasons as follows:
(1) The applicant ‘simply enjoyed lighting the fire and watching the aftermath’.
(2)He lit the fire so he could brag about what he had done to his sister and other associates.
(3)He wanted to cause great harm to his victim.
(4)By harming his victim, he could, in some distorted way, present himself to his sister and others as his sister’s protector and avenger.[18]
[18]Ibid [85]–[90].
Relying upon what he had already said about the applicant’s circumstances and the circumstances of the offending (including that the offending occurred when the applicant had just been released from 12 months’ imprisonment), the judge said that the applicant’s offending was a very serious example of the offence of arson.[19]
[19]Ibid [91].
The judge referred to the applicant’s personal circumstances, the reports tendered on the plea and the letter the applicant had written to him.[20] He set out a number of passages from the reports, including the conclusion of Dr Cunningham that:
Mr Maddocks’ path to rehabilitation will be difficult. He has never had periods of stability or long-term support and has never been vulnerable enough to open himself to treatment. Motivation towards continuing long-term engagement with treatment and rehabilitative supports would improve his prospects for rehabilitation.[21]
[20]Ibid [92]–[114].
[21]Ibid [106].
The judge again referred to the applicant’s dysfunctional family life, his ADHD and polysubstance abuse.[22] The judge then said that the applicant is a competent mechanic, with skills, who was described by Mr Sproule as being a good worker.[23] The judge also noted that the applicant had a son whom he loved very much.[24]
[22]Ibid [107]–[108].
[23]Ibid [109].
[24]Ibid [110].
Ultimately, the judge agreed with the applicant’s plea counsel that the applicant’s potential for rehabilitation was ‘guarded’. As the judge put it, if the applicant returned to using drugs when he is released from custody, then his prospects of rehabilitation were ‘nil’.[25]
[25]Ibid [111], [115].
The judge concluded his reasons for sentence by saying:
General deterrence, deterring others from committing such offences as here, of arson, is the principal sentencing factor. It must be understood that those who set fire to premises, be they occupied premises or unoccupied premises, or a combination of both, must be aware that they will face stern punishment.
Your offending is of increasing gravity compared to your past offending. Given your background and your extensive criminal history, and the fact that you committed these offences no less than ten weeks after having been released from custody, and whilst on a community corrections order designed to assist you reintegrate into the community and stop offending, results in me coming to the clear conclusion that deterring you is a significant sentencing factor I must take into account, as well as the need to protect the community from you, being also a significant matter I must take into account.
There is also a need for the sentence that I impose to have just punishment as a factor I take into account, as well as a denunciation of your behaviour on this evening.
You pleaded guilty at the earliest reasonable opportunity and that I take into account, not only in terms of its utility, as you accepted a direct hand-up brief and pleaded guilty, but I also take it into account together with your letter as evidencing some insight and some remorse for what you did. Whether this insight and remorse is deep or shallow, is long-lived or short lived, I am unable to determine. And so, your plea of guilty also evidences some remorse and some insight.
It is necessary for me to take into account all these many conflicting factors in order to arrive at, as part of the instinctive synthesis, the sentence which I consider to be appropriate given all those circumstances.[26]
[26]Ibid [116]–[120].
Parties’ submissions
In support of his contention that the head sentence and non-parole period were both ‘manifestly too long’, the applicant made the following points:
(1)Save for the sentence imposed in Davies v The Queen,[27] the sentence imposed on the applicant is the highest individual sentence imposed on a charge of arson.[28]
[27][2019] VSCA 66 (‘Davies’).
[28]In R v Noonan [2007] VSCA 5 (‘Noonan’), individual sentences of six years were imposed on two charges of arson. The applicant submitted that the offending in Noonan was ‘objectively much more grave than the offending in this case, involving offending upon two homes including one that was occupied’.
(2)The sentence is ‘grossly inconsistent with current sentencing practices’.[29]
(3)This was not a case in which the value of the property lost ran into the hundreds of thousands or millions of dollars.
(4)The applicant did not fall to be punished again for his past crimes. The sentence imposed ‘suggests that he almost certainly was’.
(5)The applicant pleaded guilty. His plea was an early plea, entered before any witnesses were cross-examined at a committal hearing, and in circumstances where his co-offender, Stewart, continued to contest the charges against him.
(6)The applicant did not fall to be sentenced by reference to the potential for further damage or harm.[30]
(7)The circumstances of the applicant’s depravation, abuse and other social disadvantage occurring during his formative years were more than matters of historical significance and were matters that were required to be taken into account and given due weight in the sentencing calculus.[31]
(8)The applicant has support available to him in the community.
(9)The applicant’s psychological presentation, and the fact that incarceration will continue to aggravate his trauma were required to be given due weight in the sentencing calculus.
(10)A sentencing court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[32]
[29]See Sentencing Advisory Council, Sentencing Snapshot No 201 (Arson), April 2017; Judicial College of Victoria, Sentencing Advisory Manual, [32.15.11]; Beevers v The Queen [2016] VSCA 271 (‘Beevers’); McPadden [2018] VSCA 57. See also, Sentencing Advisory Council, Sentencing Snapshot No 226 (Arson), April 2019.
[30]See Semaan [2017] VSCA 261.
[31]Marrah v The Queen [2014] VSCA 119, [16].
[32]See s 5(3) of the Sentencing Act 1991.
In oral argument, counsel for the applicant conceded that the applicant’s offending was extremely serious. He said, however, that notwithstanding that seriousness, the judge failed to give appropriate weight to the applicant’s deprived background — which involved serious depravation, abuse and social disadvantage suffered by the applicant during his formative years. In support of these submissions, the applicant relied upon the High Court’s decision in Bugmy v The Queen[33] and this Court’s decision in Marrah v The Queen.[34]
[33](2013) 249 CLR 571.
[34][2014] VSCA 119.
In response to the applicant’s submissions, the respondent submitted that leave to appeal should be refused. The judge took into account all relevant matters, both in mitigation and aggravation. Moreover, on the plea, no attempt was made by the applicant to rely on any of the principles in R v Verdins.[35]
[35](2007) 16 VR 269. Indeed, the judge observed on the plea (without any demur from the applicant’s counsel) that Verdins had not been raised and there ‘[wasn’t] any evidence of it’.
The head sentence and non-parole period appropriately reflected the overall criminality involved in the offending, and gave appropriate weight to the important sentencing considerations of general deterrence, specific deterrence and protection of the community. The head sentence and non-parole period were, therefore, not excessive. Indeed, they were within the permissible range.
Analysis
When compared with other cases involving the offence of arson, the sentence imposed by the judge was undoubtedly a high one.[36] Moreover, the applicant is correct to submit that the present case lacks some of the aggravating features found in other cases (such as the burning down of a home with a person or persons inside) and is not one where the property lost ran into the hundreds of thousands or millions of dollars. That said, the applicant’s offending had its own particular aggravating features, including the apparent enthusiasm with which the applicant engaged in his offending.
[36]Current sentencing practices are, of course, only one of the matters a court must have regard to in sentencing an offender (see s 5(2) of the Sentencing Act 1991).
The applicant has an appalling criminal record. While he does not fall to be punished a second time for his previous offending, his record was plainly relevant to a number of sentencing considerations, including the assessment of his character,[37] specific deterrence, general deterrence and protection of the community.[38]
[37]See s 5(2)(f) and s 6(a) of the Sentencing Act 1991.
[38]See generally Veen v The Queen [No 2] (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ); Weininger v The Queen (2003) 212 CLR 629, 640 [32] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
As has been said many times before, manifest excess is a stringent ground which is difficult to make out. An applicant seeking to establish that a sentence imposed is manifestly excessive must show that the sentence is wholly outside the permissible range of sentencing options open to the judge.
The applicant’s offending was, as his counsel properly conceded, a serious example of a serious offence. The maximum term of imprisonment is 15 years. The applicant was sentenced to 6 years, with a non-parole period of 4 years. In carefully expressed detailed reasons, the judge dealt with the circumstances of the applicant’s offending and the various mitigating and aggravating factors associated with it. We see no basis for contending that the judge failed to have regard, or sufficient regard, to the mitigating factors relied upon by the applicant — including the serious depravation, abuse and social disadvantage the applicant suffered during his formative years.
To the extent that the applicant submitted that the judge sentenced him by reference to the ‘potential for further damage or harm’, beyond the destruction of the shed and its contents, that submission must be rejected. The judge was at pains in his reasons to make clear that the applicant fell to be sentenced only in respect of the shed and its contents,[39] and nothing in his reasons or the sentence that he imposed suggests that he did otherwise.
[39]Reasons [65].
Similarly, there is no basis for the applicant’s contention that the judge took the applicant’s depravation, abuse and other social disadvantage occurring during his formative years into account only as matters of historical significance. So much is made plain by the detailed references to those matters in the judge’s reasons, together with his discussion of the relevant expert evidence (including the evidence of Dr Cunningham).[40]
[40]See also, Reasons [107].
While the sentence imposed by the judge was towards the upper end of the appropriate range, we are unable to see any reasonable basis upon which it might be contended that the sentence was wholly outside that range. In our view, the sentence was no more severe than necessary to achieve the purposes for which sentences may be imposed as set out in s 5(1) of the Sentencing Act 1991.
Conclusion
The application for leave to appeal against sentence must be refused.
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