IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-21-00206

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SHANE WALKER		

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JUDGE:	Her Honour Judge Gwynn	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 October 2021 & 10 November 2021	
DATE OF SENTENCE:	15 November 2021	
CASE MAY BE CITED AS:	DPP v Walker	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1814		

REASONS FOR SENTENCE
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Subject:	Criminal law
Catchwords: 	Arson; Contravention of order intending to cause harm or fear for safety; possession of a drug of dependence; handling stolen goods.
Legislation Cited:	s44 of the Sentencing Act 1991
Cases Cited:	Pasinis v The Queen [2014] VSCA 97;  Wati Marrah v The Queen [2014] VSCA 119; Formosa v The Queen (2012) 36 VR 679; 
R v Olbrich (1999) 199 CLR 270; Ashton v The Queen [2010] VSCA 329; Rossi v The Queen [2021] VSCA 296.
Sentence:	TES: 4 years and 6 months imprisonment with 3 years before being eligible for parole; 649 days reckoned as served  

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions 	Mr B. Sonnet	Office of Public Prosecutions	
			
For the Offender	Mr C. Terry	Adrian Dessi Legal 	

HER HONOUR:

1	Shane Walker, you have pleaded guilty on indictment to charges of arson, contravening a family violence intervention order intending to cause harm or fear for safety, two charges of possession of a drug of dependence and one charge of handling stolen goods.
2	You have also entered a plea of guilty to related summary offences of committing an indictable offence whilst on bail and carry a controlled weapon without lawful excuse.
3	In sentencing you for your crimes I am obliged to have regard to the maximum penalties for the offences which you have committed.  The maximum penalty for arson and handling stolen goods is 15 years' imprisonment.  The maximum penalty for contravening a family violence order intending to cause harm is five years' imprisonment and for possess drug of dependence is 12 months' imprisonment. The maximum penalty for the related summary offence of commit indictable offence whilst on bail is three months' imprisonment and for carry a controlled weapon without lawful excuse is 12 months' imprisonment. These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
4	The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Trial' dated 9 October 2021. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.  I have had recourse to the full document.
The offending
5	On 11 April 2018 the Dandenong Magistrates' Court issued a Family Violence Intervention Order listing Jodie McMahon as the protected person and you as the respondent.  Monica Arbury and Angus Milne were also listed as protected persons. Amongst other conditions, this order prohibited you from going to or remaining within 200 metres of where Ms McMahon lived, worked or attended school/childcare.  You had previously been in a relationship with Ms McMahon.
6	On 5 February 2020 you had been at Ms McMahon’s address, spending time with her, but left at around 3 pm.  Ms McMahon left that address at around 3.30 pm with her daughter, Monica.  
7	Whilst out shopping, Ms McMahon received a phone call from you during which you abused her by stating that she was playing games and wanted to know where she was.  You told Ms McMahon to buy you cigarettes.  At this point Ms McMahon hung up on you and turned off her mobile phone.  
8	CCTV footage from a premises close to Ms McMahon’s home depicts you outside that address at around 9.45 pm on 5 February 2020.  Not long after 10 pm, two witnesses observed fire at the premises and contacted Triple 0.
9	Ms McMahon returned to her home at around 10 pm to find it engulfed by fire.
10	Local CFA units attended and extinguished the fire which destroyed most of the left-hand side of the house.  The damage caused was estimated to be in the vicinity of $200,000.  Police also attended.
11	Forensic officer John Kelleher examined the scene.  In his opinion there were two separate fires, one in the north-eastern corner of the veranda with ignition caused by fence paling and other combustible material, and the other one on the western veranda with ignition caused by leaves, a tyre and a dressing table. 
12	On 6 February 2020 Ms McMahon returned to her address to collect some personal items and noticed your wallet in the front garden.
13	You were located by investigating police on 6 February 2020 in a McDonald's store. You appeared drug-affected.  Police conducted a search of you and located the following:
(a)	a small Ziploc bag containing 0.3 g of methyl amphetamine, forming the basis for Charge 3 on the indictment, possess drug of dependence;
(b)	a plastic container containing 17.4 g of 1,4-Butanediol, forming the basis for Charge 4 on the indictment, possess drug of dependence;
(c)	a concession card in the name of 'Elisa Galea' which had been stolen on 25 November 2019, forming the basis for Charge 5 on the indictment, handling stolen goods; and
(d)	a knife down the back of your pants, forming the basis for summary charge 10, carry a controlled weapon without excuse.
14	You were conveyed to the Ringwood police station where you were deemed unfit for interview.  On 7 February 2020 you were interviewed by investigating police and largely made a 'no comment' record of interview, as is, of course, your right. You denied having attended McMahon’s home on 5 February 2020 or indeed within the previous six months.  You denied lighting the fire.  You were then remanded into custody.
15	From custody, on 20 February 2020, you made a telephone call to Ms McMahon during which you told her that you had only 'done the wardrobe out the front.'  In a subsequent phone call to Ms McMahon, on 26 March 2020, you alleged that you were being set up, and told her that you 'only done the chest of drawers near the car out the front… I never went into the lunge [sic] rooms.'
16	At the time of committing this arson, you were obviously subject to the Family Violence Intervention order to which I earlier referred, forming the basis for Charge 2 on the indictment, contravene family violence order intending to cause harm or fear for safety.  This charge only references your conduct on 5 February 2020. 
17	You were also on bail, forming the basis for the summary charge of committing an indictable offence, namely arson, whilst on bail.  You had been bailed by the Ringwood Magistrates' Court on 20 January 2020 to appear at that court on 25 February 2020. 
18	A new interim Family Violence Intervention order protecting Ms McMahon from you was made by the Ringwood Magistrates' Court on 15 April 2020.
Victim impact
19	A victim impact statement of Ms McMahon, dated 14 October 2021, has been tendered.   The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
20	In her victim impact statement, Ms McMahon spoke of the difficulty she had trying to replace the unreplaceable things, such as photos, and having to rebuild her life from scratch.  Her mental health was also affected.
21	I have had regard to the relevant portions of Ms McMahon’s victim impact statement.
Offence gravity
22	Whilst not minimising their seriousness, I am not overly troubled from a sentencing perspective by the offences of drug possession or handling stolen goods in the circumstances in which they occurred.  I accept that you were a drug user at the time of your offending in February 2020.  It is relatively low-level offending, as is the offence of committing a further offence whilst on bail.
23	I am somewhat concerned by your possession of a weapon as the knife was quite large and you do have a relevant history.  It is unrelated to the offending the subject of the indictment.
24	I am greatly concerned by the offending of contravening a family violence intervention order and the offence of arson, noting that they occurred, effectively, at the same time.  The contravention charge is put on the basis of your attending at the address and lighting the fire.  Care must therefore be shown in those circumstances that you are not doubly punished for that offence and the arson itself.
Factual dispute
25	Prompted by my question to the learned prosecutor at your plea hearing on 19 October 2021, a factual issue arose which must first be determined.  My query to the prosecutor was as to whether or not the prosecution asserted that you were of the belief that Ms McMahon and/or any other person were present at the home at the time you lit the fire, given this event occurred at approximately 9:45 to 
10:00 pm on 5 February 2020.  I was advised that this was not asserted.  This of course left it open that you did not make any assessment as to the presence of any person before lighting the fire.  I accept that you were heavily intoxicated at the time.
26	Your counsel submitted that I could find that you positively believed that no one was present at the time the fire was lit.  This would lessen the objective gravity of the offence of arson.  Once this submission was made I sought further assistance from counsel, requesting that I be directed to any relevant evidence and indicated that I would hear further argument in response.
The law
27	I accept the submission made on your behalf that, on a plea hearing, a court may not consider facts adverse to the offender unless they have been established beyond reasonable doubt.  Facts in favour of an offender must be proved on the balance of probabilities.
28	I accept that your offending would potentially be more grave if you had not turned your mind to the presence of any person inside the premises at the time you lit the fires at McMahon’s home, as opposed to a circumstance where you had actively informed yourself that no one was then present.
29	I was pointed to relevant case law by both members of counsel which included Formosa v The Queen (2012) 36 VR 679; The Queen v Olbrich (1999) 199 CLR 270; Ashton v The Queen [2010] VSCA 329 as well as other case references.
30	Your matter was then listed for further plea on 10 November 2021.
31	Helpful written submissions were filed by both parties and oral argument was heard.
32	The parties essentially reference the same pieces of evidence but vary in their respective submissions as to how they should be used.
33	I have had recourse to the submissions and to the full depositional material.
Defence position
34	A contested factual assertion on plea must be proved by admissible evidence.
35	I am firstly pointed to the statements of Ms McMahon, particularly that dated 10 November 2020, which confirms that she had been in your company on 5 February 2020 until she left home to pick up Monica from school and then did not return home till later that night, finding her house on fire.
36	Ms McMahon refers to a text message that she received during the day which she believed came from you.  That message was in the following terms:
'Oi babe it bicycle fuckin me back now if you won’t you hause still standing so fuckincall so I can get my brick gear to because I won’t some it is Wayne I don’t posh me Bitch.'
Ms McMahon believed that this communication was from you wanting access to Xanax.  I do not know at what time this message was sent. 
37	I am referred also to Ms McMahon stating that 'I think I sent him a message saying that I was not coming home and I was going to be staying in Safe Steps or something.'  I note that whilst text messages are part of the depositional materials, this message does not appear.  There is no evidence it was in fact sent, nor that it was received.
38	Indeed, Ms McMahon next states that you did not respond to this message but called her and abused her, wanting her to buy you cigarettes.  She hung up on you and turned off her phone.  She believed this was the only call.
39	Ms McMahon would place these communications some time after 5 pm on 5 February 2020.
40	Essentially, it is submitted that this evidence, in combination, points to you being aware that Ms McMahon was not at the house at the time you lit the fires, as she had told you that she was not coming home and you were making enquiries as to her whereabouts.
41	In support of this submission, I am next referred to a report prepared by Dr Nina Zimmerman, forensic psychiatrist, dated 31 August 2021. 
42	In the context of psychiatric evaluation by Dr Nina Zimmerman of you, you gave an account that at the time of lighting the fire you were drug-affected and became angry as Ms McMahon would not come home and that when she would not talk to you, you lit the fire. You told Dr Zimmerman, 'I wanted her to come home quicker – I wanted to scare her.'
43	It is submitted that the combined evidence of Ms McMahon and your admissions to Dr Zimmerman establish that you in fact remained at Ms McMahon’s house after she left in the afternoon.  From this it is said that it could be inferred that you became upset when Ms McMahon would not return home or receive your communications and lit the fire as a result.  In those circumstances it is submitted that you must have known that no person was at home.
Prosecution submissions 
44	Understandably, the prosecutor also draws my attention to the statements of 
Jodie McMahon.
45	Ms McMahon made three statements, but in combination it is submitted that they support the position that she left her address at 3:30 pm on 5 February 2020, you having left at approximately 3 pm.  She described you as barely being able to string two words together as you had been on pills and drugs for days. 
46	She returned home after picking up her daughter, Monica, from school.  When she did so you were not present.  Ms McMahon then went out again with Monica to do some shopping during which time she thinks that she sent you a text message saying that she was not coming home.  You rang and abused her, wanting to know where she was and wanting cigarettes.  She turned off her phone at this point.
47	Whilst out shopping Ms McMahon references receiving the almost incomprehensible text message to which I previously referred.
48	Ms McMahon also states that whilst you were on remand post-arrest for lighting the fires you contacted her and when asked why you burnt the house down you replied, 'I didn’t know where you were.'  
49	The prosecutor references your account to police that you were not responsible for the fire and to other aspects of what you told Dr Zimmerman, that is, that you lit the fire when Ms McMahon would not talk to you.
50	In summary, the prosecution argue, and I quote from the submissions tendered:
'that the accused sought to punish the complainant because she would not respond to his telephone calls/messages.  However, at the time when the accused returned to the complainant’s premises and lit the fire (at approximately 10 pm), he simply did not know where she was. The date in question was a school day (as was the next day) – thus, the proposition that the complainant was inside the premises at around 10 pm is quite plausible (and simply not answering the telephone). For avoidance of doubt, the prosecutor does not seek to prove that the accused believed that to be the case – put simply, it is quite difficult to determine the accused's state of mind with any precision at the time of lighting the fire.'
51	The prosecutor also points to your drug-affected state at the relevant time, severely compromising your ability to think rationally.
52	In essence, the prosecution submits that you are unable to demonstrate, on the balance of probabilities, that you positively knew the victim was not inside the premises when you lit the fire.
Findings
53	Of course all the evidence that I have been pointed to comes from you one in way or another.  I note that the seats of fire were outside the premises.
54	You have given a variety of different accounts based on the evidence to which I have been referred and just referenced.
55	In your record of interview with police on 7 February 2020 you denied lighting the fire or being present at Ms McMahon’s home, on 5 February 2020 or indeed for the preceding six months.
56	A committal hearing held on 4 February 2021 was run on the basis that you were not responsible for the fire lit at Ms McMahon’s home.  This was not at odds with your record of interview with police and was presumably on your instructions.
57	In an Arunta call to Ms McMahon on 26 March 2020 you told Ms McMahon that you only lit a chest of drawers near the car and allege that you were being set up by Troy, suggesting Troy was also at the scene. At this point you were deflecting responsibility.  You certainly appeared to be trying to keep Ms McMahon on side 
58	In the context of psychiatric evaluation by Dr Nina Zimmerman you told 
Dr Zimmerman 'I wanted her to come home quicker – I wanted to scare her.'  This report as referenced is dated August this year and in the context of being tendered in a future plea hearing. 
59	No evidence was called in the argument as to the factual finding I should make.
60	I am therefore left with varying accounts - all from a source, you - who admits and is observed to be very drug-affected at the relevant time.  Not one of those accounts asserts your state of mind as to your belief as to the presence, one way or another, of Ms McMahon in the home.  The inference your counsel seeks I draw on the balance of probabilities is not one that I am prepared to make - that is, I do not accept that you remained at me McMahon’s home after she left in the afternoon.  That is a positive finding.  Otherwise, I am left in the position where I am unable to make a finding one way or the other as to your state of mind as to her whereabouts at the time the fires were lit.
61	I now return to the gravity of your offending on what is known.
62	Your offending is extremely serious.
63	The fire caused significant damage.
64	You left Ms McMahon and your own daughter without a home.  Doubtless they would have also lost personal property which may be of actual and/or sentimental value.
65	The premises were owned by the Department of Health and Human Services and therefore no longer available to any other person needing that housing.
66	You lit the fires in circumstances where your behaviour was vengeful.  You were not getting the contact and response you wanted from Ms McMahon, so you burnt down the place in which she lived.
67	Whilst the subject of a separate charge in terms of your attendance and lighting the fire being in contravention of an intervention order - an order designed to protect Ms McMahon and your daughter from you - the offending is clearly in the context of family violence.
68	In Pasinis v The Queen [2014] VSCA 97, the Court of Appeal emphasised the importance of general deterrence in sentencing for family violence offences.  It stated that:
'The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm'. 
69	Axiomatically, intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. 
70	In Wati Marrah v The Queen [2014] VSCA 119 the Court again emphasised the need for general deterrence, stating that, 
'The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence.  The sentences must be of such an order as to strongly denounce violence within a domestic relationship'. 
71	Each of these pronouncements are obviously relevant to your case.
72	I accept the submission by the Crown that Charges 1 and 2 are at least mid-level in terms of their objective seriousness.
73	Even more disturbing is that you have offended in startlingly similar circumstances on a previous occasion.
74	On 30 March 2016 at around 8 am you attended at Ms McMahon’s then premises, Ms McMahon and her adult daughter Mia were present. You were there in breach of a family violence intervention order and demanded to be let in, wanting a cigarette.  You were ignored and then told to leave, after which you turned off the power to the house.  Police were called but you left prior to their attendance. 
75	Later that same day you returned to the premises.  You walked in through an open front door.  Ms McMahon and her daughter Mia were present.  You demanded cigarettes.  An incident occurred where you used a cigarette lighter to ignite a spray can and directed it towards Ms McMahon.  Mia and Ms McMahon managed to leave the premises and called police.
76	When Ms McMahon returned to the premise some 20 minutes later, police and the CFA were in attendance as the house had been set on fire.  There was extensive internal damage, caused by both fire and smoke.  Fire investigators identified that at least two separate fires had been lit at the premises.
77	You have been punished for this offending.  On 21 September 2016 the Ringwood Magistrates' Court sentenced you to 18 months' imprisonment for criminal damage by fire.  This was an aggregate sentence as you were dealt with at the same time for handling stolen goods, deal with proceeds of crime, unlawful assault and other offending.  Of course the relevance of this matter is in the weight that I must then attach to both general and specific deterrence, both of which in my view loom large in the sentencing mix.
Prior criminal history
78	Your other admitted prior criminal history is also concerning.
79	It spans a period of some 19 years with some 34 court appearances.
80	Your offence history reflects violence, dishonesty, driving offences, drug offences and an inability to comply with court orders, including sentencing orders, bail orders and family violence orders.
81	You have been placed on numerous corrections orders and received suspended terms of imprisonment. 
82	You have received immediate terms of imprisonment on at least 10 occasions, the longest of which was for a period of 18 months to which I previously referred.
83	At the time of your offending on 5 February 2020 you had been out of custody for about two and a half months, having been sentenced to 34 days, reckoned as having already been served, by the Ringwood Magistrates' Court on 13 November 2019 for various offences, which included four charges of contravening a family violence order, criminal damage, dishonesty and bail offences.
84	From this history it would appear that you have not responded to various gaol terms designed to deter you from further offending, nor therapeutic orders designed to support you in the community and foster your rehabilitation. 
85	Whilst not to be punished for your criminal history a second time, this history is relevant in your case to the weight in sentencing which attaches to specific deterrence, denunciation and particularly protection of the community, more particularly intimate partners, from you.  Your criminal history reflects prior offences for breaching family violence intervention orders on some 12 occasions, weapon possession on three occasions and, as already discussed, you have  previously committed the offence of arson in very similar circumstances. 
86	In my view your directly relevant prior history, in terms of arson and contravening family violence intervention orders, informs your moral culpability for these offences on the indictment, despite your level of intoxication at the time.
87	Your history alone would indicate that your prospects for rehabilitation are guarded, until such time that you deal with your obvious drug addiction and inability to control your emotional responses.
88	That comment is made in the context of being aware of your personal history and the contents of a report tendered on your behalf authored by Dr Nina Zimmerman, forensic psychiatrist, to which I will now turn.
Personal history
89	You are now 39 years of age, having been born and raised in Brunswick.  Your father, Shane, and mother, Margaret, raised six children together.  I am told that you are the second eldest.
90	You do not believe your father worked, rather he was on a disability support pension. Your mother had insecure work waitressing, cleaning and doing deliveries.  Money was tight.
91	Whilst your father was a user of cannabis, you were never subject to any form of abuse.  You describe your mother as loving and supportive.
92	School was a challenging environment.  You had learning difficulties and believe that your school failed to identify any cognitive difficulty and therefore provide additional assistance to you.  You truanted regularly but managed to obtain a Year 10 education, although you still struggle to read or write. 
93	Your parents separated when you were around 16 years of age.  Your mother moved to Mornington and you and your siblings went with her.  This then limited your contact with your father, who you missed.
94	Your education ceased around this time and you commenced using cannabis.
95	You found employment as a plasterer and also worked in various labouring type positions.
96	You moved out of home at around 18 years of age.
97	Around this time you commenced a relationship with a person called Erin.  She introduced you to heroin.  Your work history ceases around this time and your criminal history commences.
98	You met Jodie McMahon around 2007 when you were 25 to 26 years of age.  You replaced your heroin usage with Ice.  Ms McMahon is four years your senior and already had a daughter, Mia.  You describe the relationship as dysfunctional.  
I have little doubt that Ms McMahon would agree.  You would regularly separate and then return to the relationship.  You do have a daughter together, Monica, now aged about 10 years. 
99	Your father died some years ago from brain cancer and you were permitted to attend his funeral by prison authorities as you were incarcerated at the time of his death.  You currently do not have contact with any of your siblings but do speak to your mother on occasion.
100	You have a recognised intellectual disability.  A statement of intellectual disability tendered and dated 14 August 2018 confirms this.
101	Tendered on your behalf is the report to which I have referred variously as authored by Dr Nina Zimmerman, forensic psychiatrist, dated 31 August 2021.  I have had recourse to its contents and note that report is not the subject of challenge. 
102	You told Dr Zimmerman that you could not remember why you lit the fire and wished that you had not.  You did say that it was in the context of Ms McMahon not communicating with you and wanting to get her to come home more quickly and to scare her.  I do accept, as I have already said, that you were heavily intoxicated from drug use and that there are clear links between that use and your offending. 
103	In her opinion it is likely that you have a learning disability with superimposed brain injury associated with your drug use.  Dr Zimmerman suggested neuropsychological testing to confirm underlying intellectual disability and/or traumatic brain injury and suggested such testing would assist to identify areas of potential cognitive impairment.  This has not taken place and you were given the opportunity to do so.  It does not appear that she was provided with your Statement of Intellectual Disability.
104	Accepting as I do that you do have an intellectual disability, there is a basis for some moderation of general deterrence.  Otherwise, I am without evidence as to how that condition impacts on your functioning and behaviour.  Whilst I take it into account in a general sense, I have no basis to form the view that there is a connection between your conduct and cognitive function such as to render it less blameworthy by virtue of this identified disability.  In all likelihood, had such information been available, it may well have been difficult to disentangle from the simple fact that you were significantly affected by the drugs at the time.   
105	Dr Zimmerman confirms that you do have methylamphetamine, benzodiazepine and cannabis use disorder.  She suggests treatment for these conditions.  Not surprisingly, in her opinion:
'as long as Mr Walker continues to use drugs, taking part in rehabilitation programs will be challenging.  I believe much of Mr Walker’s offending has been related to financing his drug use or has occurred whilst intoxicated.  The risk of reoffending will certainly be increased as long as he continues to use drugs.'
Plea of guilty
106	The charges on the indictment resolved at the committal hearing. Although conducted on the basis that the identity of the offender was in issue, Ms McMahon was not cross-examined.  Your plea has therefore occurred at a relatively early stage.
107	Your guilty plea does have utilitarian value.  It has saved the court the time and expense of contested proceedings.  More importantly it has saved the witnesses, and particularly Ms McMahon, the need to give evidence and relive what would be distressing events from 5 February 2020.
108	Your plea of guilty in the context of the COVID-19 pandemic also has additional utilitarian value as it does provide certainty and finality to all parties in circumstances where the court’s operations have been significantly disrupted and many trial dates remain as yet unfixed.
109	In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph [39], the Court of Appeal said:
“…a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…”
110	This was recently reinforced in the decision of Rossi v The Queen [2021] VSCA 296.
111	I am prepared to accept that you have some remorse.  You told Dr Zimmerman that you were sorry you had lit the fire, leaving yourself in prison, your relationship with your daughter in jeopardy and your ex-partner and daughter without accommodation. 
112	All of these factors will be taken into account in your favour.  
113	I note also that your period of remand to date, and at least for some of your  sentence, will be during the Corrections response to the COVID-19 pandemic.  This has, in general terms, meant less freedom of movement, less access to visits and less access to programs, making the prison setting more onerous than it would otherwise be.  I take this factor into account.   
Prospects for rehabilitation
114	I have already described your prospects of rehabilitation as guarded.
115	In prison you have managed to find work and have learnt to weld.
116	You have been prescribed mood stabilizers which seem to be assisting you. 
117	In the past your accommodation within the community has been unstable and your lifestyle chaotic. 
118	You regret your return to prison and do want to re-establish a relationship with your daughter.  Hopefully this will remain a positive motivator for you.  You accept that your relationship with Ms McMahon is over.
119	One factor that has not been part of the equation previously is your ability to access the NDIS scheme.
120	From materials tendered on your behalf an NDIS plan has been approved for you. This includes support coordination to assist you to find accommodation and to collate any professional therapist to provide recommendations to ascertain your ongoing support needs upon your release.  Whilst you have previously been on court orders which have included a justice plan and disability support you have not reportedly accessed such assistance.  You are hopeful that the funding from the NDIS scheme will assist you to find stability and appropriate treatment and to further repair your relationship with your child.
Submissions
121	The submission as to sentence made on your behalf was that the court could  consider a combination sentence, that is a term of imprisonment in combination with a community corrections order.  It was submitted that any Corrections Order should attach a Justice Plan which is an option for offenders with an intellectual disability.  Such plans specify treatment services aimed at reducing the chances that the offender will reoffend.  
122	I note that s44 of the Sentencing Act 1991 provides that a court may make a community corrections order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under s18 is reckoned to be a period of imprisonment already served) is one year or less.  There is an exception to this for the charge of arson. 
123	The prosecution submitted that the consideration of all relevant sentencing factors would see the imposition of a head sentence and a non-parole period.
124	Both parties have referred me to a list of comparable cases to which I have had recourse.
125	I did not have you assessed as to your suitability for a community corrections order. Your history of compliance on such orders is dismal, even with a Justice Plan attached.  In addition, my assessment of the objective gravity of your offending is such that I did not view a combination sentence as an outcome which would properly reflect relevant sentencing considerations.
Sentencing
126	Having been convicted on an arson offence previously for which you have been sentenced to a term of imprisonment, you are to be sentenced as a serious arson offender and I direct that this be reflected on the record. 
127	Section 6D of the Sentencing Act 1991 requires that, in determining the length of your sentence for the charge of arson, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. In order to achieve that purpose I may impose a longer sentence than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.  The Crown do not seek that I take this course and I will not do so.
128	I have made the ancillary orders as sought for the disposal and forfeiture of scheduled items and have done so with your consent.
129	In terms of the basic purposes for which a court may impose a sentence they include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. 
130	I must also balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.  
131	I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where they are relevant to your case and I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.  I am about to turn to sentence but just want to check with Mr Sonnet whether have been any matters that have arisen or any errors.
132	MR SONNET:  No, Your Honour.
133	HER HONOUR:  Mr Terry?
134	MR TERRY:  No, Your Honour.
135	HER HONOUR:  Dealing first with charge 5, handling stolen goods, you are convicted and discharged.
136	For the summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to one month's imprisonment.
137	Charge 3, possess methylamphetamine, a relatively small amount, you are convicted and sentenced to 14 days' imprisonment. 
138	Charge 4 possess 1.4-Butanediol, a more substantial amount, you are convicted and sentenced to two months' imprisonment.
139	Each of the sentences that I have just announced are to be concurrent with the sentences I am about to impose, again with the interests in totality.  I note before I turn to that that I must deal with the possess weapon charge.  For that offence you are convicted and sentenced to three months' imprisonment.  Again, that will be concurrent.
140	On Charge 1, arson, you are convicted and sentence to four years and three months' imprisonment.  This is the base sentence.
141	On Charge 2, contravene a family violence intervention order, you are convicted and sentenced to 18 months' imprisonment.  For reasons already outlined cumulation should be modest, and hence is fixed at three months' imprisonment.
142	The total effective sentence is one of four years and six months' imprisonment.  
143	You are to serve three years before being eligible for parole. 
144	649 days will be reckoned as already served pursuant to s18 of the Sentencing Act. 
145	Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges.  If not for your pleas of guilty I would have sentenced you to six years with minimum of four years and two months before being eligible for parole. 
146	I will again double-check that there is nothing that has arisen, Mr Sonnet?
147	MR SONNET:  Forfeiture and disposal orders, I thought, Your Honour, we had sought?
148	HER HONOUR:  I announced those earlier, Mr Sonnet.
149	MR SONNET:  Sorry, Your Honour, it's already been a long day.
150	HER HONOUR:  I understand.  Mr Terry?
151	MR TERRY:  Your Honour, I just wanted to double-check.  The summary charges, was it for summary charge 2, commit indictable offence whilst on bail, one month?
152	HER HONOUR:  Yes.
153	MR TERRY:  And summary charge 10 was three months?
154	HER HONOUR:  Yes.
155	MR TERRY:  And both of those were concurrent.
156	HER HONOUR:  That is correct.
157	MR TERRY:  Just more for the sake of my client but also to make sure I've got it right, is Charge 1 four years, three months?
158	HER HONOUR:  Yes.
159	MR TERRY:  Charge 2, 18 months.
160	HER HONOUR:  Yes.
161	MR TERRY:  And the other charges I'm confident I've recorded accurately.  A total effective sentence of four years six months, non-parole period three years.
162	HER HONOUR:  That is right, Mr Terry.
163	MR TERRY:  Thank you, Your Honour.
164	HER HONOUR:  Thank you, Mr Terry.  I will close the court now until 9.30 tomorrow and leave you to speak with your client privately.
165	MR TERRY:  Thank you, Your Honour.
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