IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication 	
AT Melbourne
CRIMINAL DIVISION
CR 22-00923

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
JAI WHITTEN		

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JUDGE:	HIS HONOUR JUDGE CHETTLE	
WHERE HELD:	Melbourne	
DATE OF HEARING:		
DATE OF SENTENCE:	11 October 2022	
CASE MAY BE CITED AS:	DPP v Whitten	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1753		

REASONS FOR SENTENCE

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Subject:
Catchwords:
Legislation cited:
Cases cited;
Catchwords: 
Sentence:	Imprisonment, aggregate Sentence of four  years.  Two years and nine months non-parole period.  	

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms D. Hogan	Ms S. Koso 
Office of Public Prosecutions 	
			
For the Accused	Mr P. D'Arcy	Ms A. Daly 
Galbally O’Bryan 	

HIS HONOUR:

1	Jai Whitten, you have pleaded guilty to one charge of criminal damage by fire and one charge of conduct endangering persons.  The facts of your offending are set out in Exhibit A, the Prosecution Summary  of Opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.  
2	Very briefly stated, in the early hours of 26 October 2021, you were driven by an unknown person to a petrol station in St Kilda where you purchased two jerry cans and filled them with petrol.  You were then driven to Spray Street, Elwood.  Your victim George Lewis was asleep in his house at Glen Huntly Road.  You carried the jerry cans of petrol to his front porch and emptied both onto the porch.  You lit the fuel.  Large flames erupted.  You ran back to the car and were driven back to your home.
3	Mr Lewis was awoken by a smoke alarm.  He tried, unsuccessfully, to extinguish the growing fire.  His neighbour Olivia Horuda was awoken by a loud bang.  She saw flames and smoke so she woke her daughter, got her dog and evacuated.  She rang Triple 0.  Another neighbour George Petriani was awoken by screams.  He smelt smoke.  He also evacuated his wife and two children from their home.  The fire brigade arrived and extinguished the fire.  
4	There was damage to the front of Mr Lewis's house and smoke damage to the neighbouring residents.  Police officers and forensic officers attended.  They observed that two of the front windows were broken and the glass was heavily sooted.  They saw that the floor tiles on the front porch were scorched and most of the ceiling timbers from the porch had fallen and the remaining ones were heavily burnt.  The roof space was sooted but the roof tiles largely remained, however, several tiles had broken and fell to the floor.  The southern rendered brick porch wall and the timber frames were burnt and the main door was scorched.  
5	Insurance estimates the cost to date of repairs at $128,191 and approximately another $27,680 is expected to be required in the future.  
6	CCTV footage led police to the owner of the car that drove you that morning.  Ultimately, you were arrested on 5 November 2021.  You said you had COVID-19 so you were not interviewed.  Victim Impact Statements were tendered from 
Mr George Petriani (Exhibit B) and Ms Olivia Horuda (Exhibit C).  
7	Mr Petriani states that the fire took place right next to his children's' bedroom and he is scared for the safety of his children and he feels unsettled in his own home.  
8	Ms Horuda states that she was overwhelmed with emotion as a result of your crimes.  She felt angry that someone would do what you did to them.  She was confused and scared and could not understand why she was targeted.  Of course, she was not.  'I felt scared' to be in her own home.  'I couldn't sleep for days or weeks afterwards,' she said.  'I didn't feel safe and I sent my daughter away to stay with my parents.'  She wants you to understand that your actions impacted on more than just your intended target.  The psychological effects of this attack have been long-lasting.  'Both my 11-year-old daughter,' and herself are still very anxious.  
9	I take the victim impact material into account in sentencing you.  
10	Your actions on 26 October 2021 were captured on various CCV cameras.  You offered to plead guilty to those charges shortly after the charges were filed.  You were arrested on 5 November and have been in custody since.  
11	You have admitted a criminal history.  It is extensive for someone your age.  At age 16 you were before the Heidelberg Children's Court on charges that included intentionally damaging property and wilfully damaging property.  A year later, you received another bond for charges of intentionally damaging property and criminal damage.  On 5 October 2016, you were before the Melbourne Magistrates' Court on a charge of criminal damage and other matters.  In 2017, you were again before the Children's Court charged with intentionally damaging property, graffiti offending.  
12	You have a number of motor vehicle prior offences.  Then, on 26 March 2019, you were again before the Magistrates' Court on five charges of criminal damage, burglary, theft and assault offences.  You were sentenced to a 15-month Community Corrections Order.  On 27 July 2021, you were sentenced to 94 days imprisonment for offences or recklessly cause serious injury and unlawful offence.  Those offences breach the Community Correction Order that you were undergoing. 
13	It follows that you were undergoing a Community Corrections Order at the time of the offending for which I am to sentence you.  Your personal history is set out in a disjointed manner in the report of psychologist Jeffrey Cummins.  You are now 
34 years of age, being born in Ferntree Gully in April 1988.  Your parents separated when you were nine or 10 years of age.  You moved between your parents for some years and other times you were homeless. 
14	Your mother remarried when you were 18.  She works in an accounting firm and you had regular contact with her until the COVID-19 pandemic.  Your schooling was disrupted.  You were regularly expelled because of your behaviour.  You were placed in residential care for several years but completed year 10 level.  You had some casual jobs with McDonald's, Red Rooster, and you did some labouring work. 
15	Your life has been blighted by drug abuse.  You abused Xanax from age 15, you moved to cocaine use and then methylamphetamine, cannabis, LSD and heroin abuse.  You told Mr Cummins that you committed the offences I am to sentence you for because you believed Mr Lewis had been sleeping with a girl you had been involved with.  You claimed to be frustrated, angry and drug affected at the time.  
16	If this is true, it is concerning that you would react so dangerously to such an issue.  You claim to recognise that you have an anger management issue.  In a letter to the court (Exhibit 5) you said that you had let drugs control your life and that you had drunk alcohol to excess.  You claim that you have been drug free and sober since being remanded 11 months ago and you say you want to work with your mother upon your release from custody and remain drug free.  
17	In Exhibit 3, your mother confirmed your disrupted childhood.  She also confirmed that you had straightened yourself out whilst you were in custody.  She continues to support you and will have a home for you when you are released from custody and you will be able to work with her accounting firm.  
18	In custody, you have been the subject to extensive periods of lockdown and have had COVID twice.  Nonetheless, you have managed to complete several courses, including an anger management program and the relevant certificates in that regard are Exhibit 6 on your plea.  
19	Mr Cummins, at paragraph 35 of his report, said that you represent a moderate/high risk of committing further violent offences.  He stressed the need for you to undergo a comprehensive anger management program, more extensive than the one you have completed.  He concluded at paragraph 37: 
'On the basis of his comments and presentation at interview, it is my opinion that he has been intermittently suffering from a major depressive disorder which has been of moderate severity and associated with symptoms of anxiety and traumatisation.  He attracts the diagnosis of being a polysubstance user and, on his account, he has dependencies on Xanax, Valium, clonazepam, alcohol, cocaine and methylamphetamine.'
20	At paragraph 40 he said: 
'In my opinion, the longer the time that Mr Whitten spends in custody, the more likely it is that his antisocial behaviour and his problems with anger will be 
re-enforced and therefore exacerbated.  In my opinion, he has unresolved attachment issues which could have been relevant in terms of his offending behaviour; that is, believing his girlfriend was cheating on his.  He presents as being psychosocially immature.' 
21	I the contents of Mr Cummins' report into account in sentencing you. 
22	You counsel relied upon a number of matters in mitigation of your offending.  Firstly, your age.  You relevantly young and immature at the time of your offending.  You are now reaching the age where you hopefully develop consequential thinking and maturity.  
23	Secondly, the remorse you expressed in your letter to the court, to Mr Cummins and to your mother.  
24	Thirdly, your disjointed, disrupted and dysfunctional childhood.  That led you to drugs and alcohol abuse and to subsequent criminal offending.  
25	Fourthly, I take into account your pleas of guilty.  Such pleas were entered an early stage in the proceedings.  You have spared the community the time and expense of a criminal trial and your victims the trauma of giving evidence at  such a trail.  You are entitled to a substantial reduction to the sentence I would otherwise impose for your offending to reflect those pleas of guilty.  
26	Fifthly, because of the effect COVID-19 has had upon our justice system, your pleas have greater utilitarian benefit and you are entitled, therefore, to a greater reduction in sentence as a result.  
27	Sixthly, COVID-19 has made time in custody more onerous for you and will continue to do so in the future.  You personally have felt the effects of COVID with imposed lockdowns when you fell ill. 
28	Seventh, your depression issues are likely to be exacerbated whilst you are in custody.  However, Mr D'Arcy acknowledged that gaol had been good for you; something you and your mother confirm.  
29	Eighthly, I take  into account your prospects of rehabilitation which, I believe, are reasonable provided you remain drug free, control your alcohol use and deal with your anger issues.  You have strong family support and a place to live and a job.  Your future rests in your own hands.  The drugs screens tendered on your behalf support the assertion that you have been drug free for some time.  I take all these factors into account in sentencing you.  
30	The prosecution correctly submitted that the objective gravity of your offending is high.  There was significant planning for your offending, your suggested motivation demonstrates malicious planning and an intent.  The property you set on fire was close to other residences and many people were placed in serious risk by your conduct.  Your offending is aggravated by the fact that you were undergoing a Community Corrections Order at the time.  
31	Principles of general deterrence, specific deterrence and denunciation of your conduct are very important sentencing considerations in your case.  In my view, protection of the community is also a significant factor.  You were a great danger to many people.  
32	You have pleaded guilty to two separate crimes, each with separate elements.  Your single course of conduct in setting fire to the premises was the same conduct that placed persons at risk of serious injury.  I have been conscious to avoid double punishing you.  
33	Both your counsel and the prosecution agreed that, in your case, an aggregate sentence for both offences was an appropriate mechanism to deal with principles of totality and otherwise reflect all relevant sentencing factors.  I would otherwise have imposed a sentence for the arson charge and cumulated a portion of the sentence on the conduct endangering persons charge.  However, it is, in my view, appropriate to impose an aggregate sentence.  
34	On both charges, arson and conduct endangering persons, you are convicted and sentences to an aggregate term of imprisonment of four years.  I order that you serve a minimum of two years and nine months before being eligible for parole.  
35	I declare that 340 days of the sentence I have just imposed has already been served by way of pre-sentence detention and pursuant to s6AAA of the Sentencing Act, I indicate that, but for your pleas of guilty, I would have imposed a head sentence of seven years' imprisonment with a non-parole period of four years and six months. 
36	Are there any other orders required, Ms Hogan? 
37	MS HOGAN:  Yes, I understand that a disposal order was provided, a draft. 
38	HIS HONOUR:  Yes, I'll make the disposal order sought by the Crown.  Is that it? 
39	MS HOGAN:  As the court pleases. 
40	HIS HONOUR:  Anything else, Mr D'Arcy?
41	MR D'ARCY:  No, Your Honour. 
42	HIS HONOUR:  All right, thank you.  Would you terminate the links.  
43	MS HOGAN:  If the court pleases.  
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