R v Hay
[2020] VCC 1444
•9 September 2020 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-18-01825
Indictment No. H12474805
| THE QUEEN |
| v |
| LISA HAY |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Trial: 21 – 27 February 2020 (Wodonga) Plea: 6 April, 3 June & 1 September 2020 (Melbourne) |
DATE OF SENTENCE: | 9 September 2020 (Melbourne) |
CASE MAY BE CITED AS: | R v Hay |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1444 |
REASONS FOR SENTENCE
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CRIMINAL LAW – SENTENCE – Arson – Reckless conduct endangering life – Extensive damage to the residential address – Vulnerable victim – Relevant antecedents – Offending occurred in the context of alcohol abuse – Dysfunctional Upbringing – Increased burden of imprisonment – Effect of the COVID-19 Pandemic considered – General deterrence – Specific deterrence – Totality – Significant delay – Denunciation – Beevers v The Queen [2016] VSCA 271, considered – Total Effective Sentence: 3 years and 9 months imprisonment, Non-Parole Period 1 year 11 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr D. O'Doherty | Ms A. Hogan, Solicitor for Public Prosecutions |
For the Accused | Mr M. Kozlowski | Mario Vaccaro |
HIS HONOUR:
1Lisa Hay, on 27 February this year following a six-day trial at the Wodonga circuit you were found guilty by a jury of one charge of arson[1] and one charge of reckless conduct endangering life.[2] The maximum penalties are 15 years and 10 years' imprisonment respectively.
[1] Contrary to ss 191(1) and 191(6) of the Crimes Act 1958.
[2] Contrary to s. 22 of the Crimes Act 1958.
2The offence giving rise to the trial occurred just over three years ago at Wangaratta. You were residing at 114 Burke Street, Wangaratta. The complainant, an elderly lady, Mrs Siegers aged 80 lived alone next door at 112 Burke Street. She had lived in that house, which she owned, a modest 1950s style timber housing commission house for the previous 53 years.
3On 31 August 2017 she retired to bed around 11 pm.
4On her evidence sometime later, she was awakened by noises emanating from the back veranda including a couple of knocks like heavy boots. She heard a further noise that appeared to come from the boundary fence to your property. The next thing her smoke alarm went off. She thought that it was strange, and she went to go to the kitchen and found that the electricity was off. She had to feel her way around the house and walked down the hallway and saw a pink light coming from the glass panel of the back door. She heard a crackling noise and then smoke started rolling through the cracks in the door. She could not believe what was happening and then realised that she had to leave. She grabbed her dressing gown and walked out of the house. There was a lot of smoke and it was affecting her breathing. A young lady came up to her to ask if she was okay. This woman then sought to rouse the neighbours and later went off to call the police. The fire brigade and the police turned up a short time later and were unable to save the house, which was damaged beyond repair.
5An ambulance was called and Mrs Siegers, who suffers from a heart condition, was taken to the local hospital suffering from smoke inhalation and anxiety.
6As a result of the fire the house was extensively damaged and had to be replaced. The total insurance claim, including a claim for contents of $130,000, total $495,000.
7The police had attempted to raise you in the early hours of that morning at your home at 114 Burke Street but they were unsuccessful. You got up the next morning around 7.30 am and left the house about 8 am and later told the police that you did not know that anything had gone on next door on the night before.
8Later that morning the police arrested you and you were interviewed.
9In the course of the interview you stated that you knew nothing about the fire earlier in the morning and denied even being aware that the fire brigade and the police had attended at the property next door. You claimed you were a heavy sleeper.
10At trial, the case against you was circumstantial but strong. The prosecution relied on expert evidence that the fire emanated from a single source in an alcove on the back veranda and was not caused by an electrical fault. The prosecution also relied on the finding of your fingerprints on the colorbond dividing fence between your property and the complainant's property. The evidence was that the prints would have required the application of some force to stay on the fence.
11The prosecution also relied on evidence that on four occasions over the period from April until July 2017 you had lit small fires at the property at 116 Burke Street, being your neighbour on the other side. Those fires were quickly put out and did not do any significant damage.
12You subsequently pleaded guilty to charges arising out of those fires. The prosecution put to the jury that you had a tendency to light fires on your neighbours' property at night and to act on that tendency. The prosecution invited the jury to use that process of tendency reasoning in order to reach the conclusion, beyond reasonable doubt, that you had committed this act of arson. The prosecution also relied on coincidence reasoning that it was beyond coincidence that it was not the same person who had lit the four fires at 116 Burke Street, as had lit the fire at 112 Burke Street.
13Evidence was led that after the earlier fires the police had installed a CCTV camera directed at your property from a house across the road. The footage from the camera did not show any persons entering the complainant's property earlier that morning. The footage that was extracted from the camera was the subject of extensive cross-examination essentially designed to cloud the issue, on the basis that it may have revealed that the fire had commenced at an earlier time than what the original estimate had been which was about 2.30 am. It was no part of the prosecution case to identify precisely when the fire had commenced, but it was the prosecution’s case, which the jury must have accepted, that you were the arsonist. I am required to sentence you in accordance with the jury verdict.
14You were also found guilty of reckless conduct endangering life. The elements of that offence are different from that of the charge of arson and reflect your conduct in exposing the occupant of the property, Mrs Siegers, to danger by setting fire to her house in circumstances where you were reckless to the fact that she was an elderly woman living alone and probably asleep at that time of the night and may not have been able to escape safely.
Victim Impact Statements
15On the plea hearing, a number of victim impact statements were read and filed. Mrs Siegers filed three poignant statements elaborating on the impact of your offending on her. In the first of her statements she said:
'My life was turned upside down in the early hours of the morning of September 1 2017. The arson attack on my home resulted in the loss of my home, a home where all were welcome anytime, a home of many good loving memories. It was where my children grew up, where we celebrate everything from birthdays, graduations, to the marriage of my children. We mourned the death of friends and celebrated the birth of my grandchildren and great grandchildren. It was a place where my friends, relatives and associates spent some many happy hours of fun and laughter. Every nook and cranny in that home could tell a story, had a memory. My home was simple and modest but was to me the cornerstone of what I feel was a grand and fulfilling life. While I'm happy to be alive and as well as my age allows, the sadness I feel at the loss of so memories embodied in the house and the treasures it held, that I found most dear, is for me, great.[3]'
[3] Exhibit A on the plea.
16She goes on to refer to the loss of photographs from her father and her grandfather back in Indonesia where they came from originally. She said: 'Photos were given to us after the war, of my parents' wedding, of my childhood and my sisters when we were children, and the fact that my sisters have passed on, that the ties can't be relived now. '
17She says as a consequence of the fire, she was taken to hospital due to her heart problems. She said:
'Healthwise, I have never been the same. I struggle from day to day with anxiety, pain and problems.'
18She goes on:
'Yes, I am old, but the stress of the night has taken its' toll.'
19She refers to the kitchen table, saying:
'My kitchen, the hub of my home, with a kitchen table around which the small and big problems of the family were discussed, the laughter and tears of my family and friends shared in the kitchen over a coffee or tea or a needed glass of wine, echoed in the house and brought me happiness as I would sit some days and reflect on the joys of my life. Those moments are still there, but the haven in which these memories were created, has gone.'
20She concludes her first statement by saying:
'Yes, life is a struggle. I recognise this, but I had a simple, but rich life, that meant I could be relatively worry-free and peaceful as I entered the years that I farewell my friends and family and looked to God for comfort and solace, while God provides me comfort and the joy of family, I feel I have been denied a sense of peace and comfort that comes with security and confidence. This has been denied me as a result of the fire, a fire brought about for no good reason and no fault of mine or the age of my home. No, it was brought about by a senseless act, by a person whose cry for help I have heard, but had been powerless to assist. It saddens me that I have not been able to help her and further saddened by the fact that I bore the brunt of this act in such an unnecessary way that has led to my being anxious, panicked and hardened with anger. This is not the person I want to be, but I recognise the daze that have confronted me and the potential to affect others. To this end, I hope my experience provides you with a sense of the anguish that this has created, and I hope it provides for the best course of action you must decide.'
21She goes on, in another later Victim Impact statement after she has built a new house, she says:
'My house has been rebuilt and I have been living back here for the past nine months. I have found it difficult to be back in the house on my own. I am always on edge and every time I hear a little bit of noise, it triggers a bit of fear. I know I don't need to be afraid, but I can't help it. I still have trouble sleeping and have constant anxiety.'[4]
[4] Exhibit B, VIS Addendum, 12 September 2019 and Further VIS (2 full pages)
22And then she says that her physical health has deteriorated, she used to have a lovely garden, but after two years of neglect, she is no longer physically capable of maintaining it. She still goes looking for things that were sentimental to her but were destroyed the fire. 'It makes me sad, items that belonged to my parents cannot be passed on to my grandchildren.'
23She says:
'Even though I am now in my new house, I am struggling to move on from the fire and all the destruction.'
24Her son also filed a victim impact statement which was read.[5] He had moved up to Wangaratta, about to start a new job and he was going to build a new home in Glenrowan and this was all disrupted by your action, where he had to look after his mother, he was going to live with her for a short time and now he his move into a new career with a new job up in Wangaratta was disrupted. He was out of work, he lost the job that he was about to take and had a period of unemployment and he said he lost up to $35,000 in lost earnings, so it had an impact on him as well as on Mrs Siegers.
[5] Exhibit C, VIS Eric Siegers, 4 May 2018
25In addition to that, a Victim Impact statement was filed by Marianne Frank, who is a long-term friend of Mrs Sieger's. She testifies to the impact that the offending has had on Mrs Siegers, how she looked after her in hospital, that she had to go up to the shop to buy her some clothes because she was left with no clothes at all, they had all been burnt out, and the fact that she was disrupted because she had to move into private accommodation until the house was rebuilt. So again, she testifies to the damage that was done, the psychological damage to Mrs Siegers by your conduct.[6]
[6] Exhibit E, VIS Marianne Franki, 1 May 2018
26Overall, the impact of your offending on the complainant and her family is very significant and goes to the seriousness of the offending. No sentence of the court can retrieve the lost memories associated with the destruction of the family home of Mrs Siegers, nor can it restore the sense of health and well-being that she had before your thoughtless, cowardly and dangerous act. I have taken into account the impact of the offending on Mrs Siegers and on her family in sentencing you.
Seriousness of the offending and moral culpability
27Arson is always regarded as a serious offence on the criminal calendar. It was not disputed that this is a serious example of such an offence. To set a fire on the back veranda of a timber home in the dead of night knowing that it was occupied by an elderly woman, is a shocking crime. The jury has found you guilty of recklessly endangering her life. As the learned prosecutor submitted it was fortunate that the fire was noticed by a passerby who immediately attended at the front of the house and offered Mrs Siegers assistance.
28You must bear high moral culpability for this crime, particularly given the undisputed evidence that you had indeed set for other fires in the previous three months on the other neighbouring property.
29You pleaded not guilty to the charge and continue to deny your responsibility. The jury must be taken to have rejected your denials in the record of interview.
Criminal History
30I turn now to your criminal history. You are now aged 36. Your criminal history begins in 2003 when you would have been aged 20. In that year you were fined without conviction $150 for assaulting police, refusing to leave a place after a warning and resisting police. On 20 May 2005 you were fined with conviction for being drunk in a public place, behaving in an offensive manner in a public place and using indecent language in a public place.
31On 29 November 2006 you were sentenced to a six month community based order for behaving in an offensive manner in a public place and using insulting language.
32On 24 September 2007 you were convicted and sentenced to a CBO for four months for unlawful assault.
33On 7 December 2009 you were fined $272.73 with conviction for wilfully damaging property.
34On 28 May 2014 fined $1200 with conviction for making a threat to kill, contravening a final personal safety intervention order, assaulting police and procuring the use of a vehicle by misrepresentation.
35You received a 12-month Community Corrections Order (‘CCO’) on 15 September 2014 for assaulting police and for acting in manner prejudicial to the security and good management of a gaol.
36On 30 September 2015 you were sentenced to a 12-month CCO for offending which stemmed from a traffic accident. You were charged with refusing a preliminary breath test, unlawful assault, failing to render assistance after an accident, driving in a dangerous manner, driving exceeding PCA and you contravened the earlier community corrections order as a result of that offending.
37Your criminal history is consistent with problems with alcohol and offending in the context of relationship problems.
38While your conviction for the four fires that you lit between April and July 2017 is not a prior conviction for this offending, it is an antecedent and relevant to the sentencing here. On that offending, you were sentenced to 351 days imprisonment and a 12-month community corrections order. This was imposed on 10 December 2018 and was for the offending that was the subject of the tendency notice.
Personal circumstances
39You were born and raised in Albury as the second youngest child of a family of seven. In discussions with a psychologist you characterised your childhood negatively. Your parents separated when you were nine. You stated to the psychologist that one of your older brothers sexually assaulted you on multiple occasions.
40You were frequently physically punished when falsely accused of misbehaving by your siblings.
41There was also instability in your upbringing as a result of frequently moving between Victoria and Queensland (where your father resided) following your parents’ separation which occurred while you were in primary school.
42In terms of your education you attended mainstream schools until part-way through Year 7 when you moved to Queensland and were placed in a Year 8 class. It seems that you had learning difficulties and believe you had repeated Prep and Year 5. You were never formally diagnosed with any learning difficulties but believed that you had been diagnosed with dyslexia as an adult.
43You left school early and your subsequent education and training was limited to short courses and skills for work and vocational pathways.
44You have a limited vocational history. You worked in Retail for one year in Wodonga. You worked as a waitress for four months' in about 2016. Your primary source of income has been the Disability Support Pension.
Psychosocial history
45You have been involved in multiple past relationships and have been the subject of domestic violence. You report multiple past relationships in which you were subjected to domestic violence.
46You have three sons from three different fathers. The oldest is aged 16, so you would have been about 20 when you had your first child, another of your children is aged eight and another is aged five. The children were removed from your care in 2014 and permanently placed into the care of other family members in 2016 due to domestic violence in your relationships and your own history of alcohol abuse. You were involved in a care proceeding, a proceeding as to the direction of care of your children at the time of this offending in late August 2017.
47You report having good relationships and regular contact with your children when you are not incarcerated and prior to these current charges you had been trying to regain custody of those children.
48In the relationship that you were involved in at the time of this offending, you had been the subject of domestic violence and the perpetrator was sentenced to a term of imprisonment for his conduct.
49Over the past year, and prior to the trial, you have been in a new relationship, a supportive and a non-violent relationship with a gentleman named Chris, and intend to reside with him following your release from prison.
50You have good and regular contact with three of your sisters and one of your brothers. Thus, you have some support in the community which is relevant to your prospects of rehabilitation.
51I turn to your medical and social history which is all set out in the three psychological reports that I am about to refer to and I incorporate by reference.
Medical History
52You were involved in alcohol consumption from age 14.
53From age of about 15 you were consuming approximately 24 mixed drinks a week.
54After the relationship with the father of your son Tyson who was the oldest son, you increased your consumption to 24 to 48 beers a week.
55Your only periods of abstinence from alcohol consumption over the years has been during periods of short-term residential treatment.
56You reported to examiners that you have sought to reduce your alcohol consumption and been abstinent following your release from prison in 2018 to a maximum of one or two beers on the weekends.
57You have also been involved in use of amphetamines (speed) from the age of 15 until the age of 20, when one of your partner's was a drug-user.
58You also smoked cannabis on occasion. You have been involved in about eight attempts at residential rehabilitation including a six-week program at Odyssey for your drug and alcohol problems.
59You actively participated in drug and alcohol counselling when you were on a community corrections order from December 2018.
60You have told the examiners that you were adamant that you intend to cease use of alcohol due to your strong desire to regain custody of your children.
61Regarding your psychiatric history the records indicated that you have been suffering from PTSD, and you were placed on a mental health plan in March of 2019. In custody you have been treated for persistent symptoms of anxiety and depression.
Psychological material
62I turn to the psychological material that was placed before me on the plea. Your counsel filed two reports of neuropsychologists and one from a forensic clinical psychologist from Forensicare. The reports were put in evidence in order to seek to provide an explanation for your offending, to address whether you are a risk to the community, and whether a sentence of imprisonment is likely to be more burdensome.
63As you continue to deny responsibility for the offending, identifying an explanation for the offending is somewhat difficult. However, both Mr Staios[7], the neuropsychologist, and Dr Davison[8], psychologist seem to provide a partial explanation for your offending centred on your difficult background.
[7] Exhibit 2 on the plea, Report of Mr Staios, 20 September 2019
[8] Exhibit F on the plea, Report of Dr Ann Davison, 29 May 2020.
64Thus, Mr Staios says at paragraph 8.1 of his report says:
'That you are a 35 year old female. The relationship between your psychological functioning and history, your offending is complex beyond the scope of the report to detail comprehensively. However, her offending seems to have arisen in the context of an unstable and emotionally volatile upbringing including reported acts of sexual abuse in early childhood, that ultimately lead to the genesis of maladaptive coping strategies, an unstable self-image, and a tendency to gravitate towards negative peers. These experiences ultimately resulted in the integration of dysfunctional values and the formation of maladaptive personality traits, subsequently influencing her actions. Furthermore, her feelings of low self-worth and instability were reinforced during adulthood in the context of gravitating towards physically abusive and emotionally neglectful relationships centred on substance use.'
65Mr Stalios says you have got PTSD. Dr Davison was reluctant to provide a diagnosis of PTSD but she did diagnose that you had an alcohol use disorder. She then in paragraphs 40 and 41 of her report seeks to identify the motivation for the offending. She says,
'In formulating her fire setting behaviour, Ms Hay's developmental history include significant experiences of sexual and physical abuse and possible learning difficulties which recent research suggests are associated with repeated fire setting is associated with physical and sexual abuse experiences, learning disabilities. Psychological vulnerabilities which may also have predisposed her to fire setting include her problems with communication and regulation of herself and her emotions.
'Factors which may have precipitated the fire setting behaviour in 2017 are an accumulation of distressing or traumatic experiences over the preceding year. During 2016 she was seriously assaulted by her partner, she experienced the sudden death of her best friend and a fondly recalled stepfather, the latter being buried on her birthday in December. With her history of communication problems, coping skills deficits and alcohol abuse, lacked appropriate skills or support to deal with her grief and the assault precipitated traumatic stress on a background of undissolved trauma from childhood sexual abuse. It is likely that her distress increased unfettered during 2017 as she continued to drink to excess and was involved in yet another controlling and emotionally abusive relationship.'
66She goes on to say,
'On 1 September 2017 you were due to appear on court on the last day of a five-day hearing and it may well have been a triggering event.'
67She also says it is likely that you were intoxicated at the time.
68She then opines as to your risk of reoffending and she says that the results of her analysis:
“indicates a high risk of general reoffending due to her elevated risks and needs related to alcohol use, lack of education and employment, family and relationship problems and an absence of recreational linkages.” 'Her criminal history and antisocial companions present some risk also. Positively she presents without general anti-sociality or offence supportive attitudes.'
Context of your offending
69Based on her offending history future offending would be likely to occur in the context of alcohol abuse. Scenarios for future fire lighting are less clear but would likely involve alcohol use problems in the context of overwhelming distress and emotional dysregulation.
70So she identifies that really you need to address your alcohol problems in order to reduce your risk of re-offending.
71Dr O'Meara, who is a neuropsychologist, she is of the view that your substance use disorder may have contributed to your offending.[9]
[9] Exhibit 6 on the plea, Report of Dr O’Meara, 14 August 2020.
72I will not further canvass what is in the reports but it is clear from the material that addressing both your prior problems with drug and alcohol use will reduce the risk of your re-offending. You have been abstinent from alcohol following your arrest and your period on remand and this bodes well for your prospects.
73A major part of the plea put by your counsel, Mr Kozlowski, was that imprisonment would be more burdensome. Is that made out? Your counsel submitted based on the opinions of Mr Stalios and to an extent Dr Davidson that imprisonment would be more burdensome than for a normal person. Dr Davison notes that PTSD will not be able to be fully treated in a custodial environment. Dr O’Meara notes that due to your cognitive deficits you may experience greater difficulties in maintaining aspects of a custodial environment.
74The learned Crown prosecutor, Mr O'Doherty, would not accept that the evidence before me indicates that imprisonment would be more burdensome for you than for a person of normal fortitude and background. But having regard to your dysfunctional upbringing and the contents of the three reports I do make some allowance in your favour that imprisonment will be more burdensome.
75In addition to the issue of whether imprisonment itself would be more burdensome, all of the examiners expressed concern about the impact of a lengthy period of imprisonment.
76Significantly Dr O’Meara notes that it may impact on your motivation to regain custody of your children. It is in their interest that you be in a position to re-engage with your own children and relieve the burden of family members who are currently caring for them, that being your sister and your parents.
77All the examiners were of the view that a lengthy period of supportive supervision with psychological assistance would be beneficial to you and in the long-term community interest following your release from prison.
78Before turning to sentencing issues that are thrown up by all this material, it is appropriate to outline the chronology of these proceedings. As indicated the offending occurred on 1 September 2017. You were arrested and remanded. You had earlier been charged with the offending that was the subject of the tendency evidence tendered at the trial and you had been granted bail in August 2018 and you were admitted to CISP which is a Magistrates' Court program at that stage.[10] The earlier fires, were subsequently dealt with in the Magistrates' Court on 10 December 2018, where you were sentenced to 350 days' imprisonment, which was the period that you had served in prison after your arrest. This was declared as presentence detention, and you were then placed on a 12 month community corrections order commencing on 10 December 2018 and you successfully completed that community correction order. I do not have the report but you successfully completed it .
[10] Exhibit 5 on the plea, CISP Report, 5 December 2018.
79Following your conviction in the trial in Wodonga, your bail was revoked in February 2020, and you have been in custody since that time.
80Thus, going back, in the period since 1 September 2017, you have served a total of 490 days in custody, of which 195 days are to regarded as presentence detention on these charges.
81Given this background in sentencing you considerations of totality are relevant. Had this matter been dealt with together with the other earlier arson offences, or had the sentencing for the other arson offences been deferred until the trial of the present proceeding, then it is likely that there would have been some concurrency in relation to the sentences to be imposed here, in relation to those other sentences.
82In addition to this issue of concurrency associated with the sentencing for the four fires between April and July 2017, delay is a relevant factor. It is now a few days over three years since the commission of the offences. The matter has been the subject of some delay. It was not reached in the circuit that was due to occur in Wangaratta in February 2019. That was after you were committed for trial. There was also delay while your solicitors attempted to obtain some relevant psychological material, in order to make an application for a sentencing indication hearing. The application was ultimately made and refused by another judge on 2 October 2019.
83In addition to that there was delay in getting the matter on for trial as there was an argument that had to be had about the admissibility of the tendency evidence and then a judge who was going to hear the case became unavailable. Thus it was only in February this year, the February circuit, that this matter was able to be listed for trial and heard.
84The prosecution accepted that you are not responsible for some of the delay, however you were responsible for some of the delay in obtaining the material that I have referred to. As the matter was a circuit matter then there is often delays for unavoidable reasons that you are not responsible for.
85The question of delay is relevant in any event In relation to your prospects of rehabilitation and the fact that the matter has been hanging over your head for the period until you were convicted this year and then you have been in custody since that time.
86As indicated by your counsel on the plea you were successful in completing the community corrections order that was imposed by the Magistrates' Court on 10 December 2018. Your response to that order is relevant.
87I have indicated you were also on the CISP program on bail, and the report of your participation in that program has been put before me and indicates that you were responsive and you have been engaged in alcohol counselling and mental health counselling.
88In addition to the CISP report, your counsel tendered a large number of certificates of courses that you had undertaken while you had been in custody. Those certificates and the report itself indicate that you have responded well to the programs and to your period of incarceration. I give you credit for the actions you have taken both in your first period of custody and on the CCO and in the period since then.
Purposes of sentencing
89The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.
90In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance to interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
91Sentencing here presents some difficult competing considerations. The need for denunciation and general deterrence, and to an extent, specific deterrence, must be weighed against more subjective matters such as delay, totality, your rehabilitation into the community, and the impact on your mental health and condition of a lengthy period of imprisonment.
92Other matters calling for leniency include your dysfunctional upbringing, your lack of formal education, and the desirability of you being able to seek to regain custody of your children, and address your problems with alcohol. It is obviously in the community interest that there be a disposition that will encourage the steps that you have already taken towards your rehabilitation.
93Dr Davison, as I have indicated, indicates your risk of reoffending will be lowered when you are in a position to address your problems with alcohol, and this is best done in a community setting. Similarly, addressing your PTSD issues from prior acts of violence and sexual abuse is best done in the community.
94Weighing these competing matters, considerations of denunciation and general deterrence require that you be sentenced to a term of imprisonment of some length.
95The sentence of the Court must denounce your conduct. No motive has been revealed for your actions. You exposed an elderly lady to terrible danger and destroyed her lifetime memories. You are to be utterly condemned.
96On the other hand, it is in the community interest that your rehabilitation be advanced to the greatest extent consistent with sentencing ends, and thus a sentence that for a longer than usual is able to be served within the community is appropriate.
97In sentencing you I must have regard to the present pandemic, which in itself for the indefinite future, makes imprisonment more burdensome due to restrictions on visits and other measures within the prison that have been taken to minimise the impact within the system.
98In sentencing you, I am also required to have regard to current sentencing practices. The learned Crown prosecutor did not refer to any specific cases but handed up the Sentencing Manual[11], cases for arson. This shows that a wide range of sentences are imposed because obviously arson can occur in a wide-range of circumstances with a wide-range of motivations and a wide range of damage.
[11] Judicial College of Victoria, Victorian Sentencing Manual Case Summaries, Arson 6.11
99In a recent case of Beevers[12], the Court of Appeal noted that:
'Sentences of imprisonment of two, three or four years' imprisonment for arson perpetrated against houses seem to accord with current sentencing practices.[13]'
[12]Beevers v The Queen [2016] VSCA 271
[13] Ibid [41] (Priest and Santamaria JJA)
100In sentencing you, I am also required to have regard to the separate criminality associated with the offence of reckless endangerment. At the same time, I need to ensure there is no double punishment. Your counsel submitted that there should be substantial concurrency in relation to the two sentences.
101The learned Crown prosecutor reminded the Court that in sentencing you for the arson offence, protection of the community must be the principle sentencing purpose as you are to be sentenced as a serious arson offender and I do sentence you on that basis and order that it be entered into the records. Could you please stand:
Sentence
102On the charge of arson, you are sentenced to three years' imprisonment.
103On Charge 2 of recklessly endangering life you are sentenced to two years' imprisonment.
104I direct that nine months of the sentence on Charge 2 be served cumulatively on the sentence of Charge 1 which makes a total effective sentence of three years' and nine months' imprisonment.
105I declare I have sentenced you as a serious arson offender on Charge 1 and order that it be entered into the records.
106I order that you serve a period of one year and 11 months' imprisonment before being eligible for parole.
107I declare you have served 195 days pre-sentence detention. Were there any other ancillary orders Mr O'Doherty?
108MR O'DOHERTY: No, I don't believe so, Your Honour.
109HIS HONOUR: All right. Mr Kozlowski, anything from your point of view?
110MR KOZLOWSKI: No, Your Honour.
111HIS HONOUR: All right. You can remain seated Ms Hay. I want to thank counsel for their involvement in this matter. It has been a bit attenuated but it has now been wrapped up, and I want to thank Mr O'Doherty, Mr Kozlowski for his comprehensive submissions and also their instructing solicitors and the people, the court officers, et cetera, up at both Wangaratta and Wodonga for the way that they facilitated the conduct of the circuit and looked after Mrs Siegers when she gave her victim impact statement and when she also gave her evidence in the trial. So, I want to thank everyone involved in the matter, and indicate that I will have these reasons reduced to writing in the next short time.
112So, with that, I want to adjourn temporarily. Again, I thank Mr O'Doherty and Mr Kozlowski.
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