Crown v Accused

3 The circumstances of your offending are very serious.

4 You, Mr Butler, Jye Sherrin and Daniel Griffiths were residents of 67 Indi Avenue. It was a two-bedroom weatherboard house that was kept in a state of extreme disorder. The house was both unclean and untidy. There were cigarette butts on the floor and furniture. Bedding and mattresses were heaped on the floor along with other items. Mr Butler occupied the bedroom at the south-western corner of the house adjacent to the veranda.

5 During the afternoon of 26 February 2023 you were at home drinking alcohol with Mr Sherrin and Mr Griffiths. Mr Butler was in his room. When the alcohol ran out, Mr Sherrin and Mr Griffiths went to the local FoodWorks supermarket and stole two bottles of spirits before returning home. At about 6 pm police attended and arrested them. They were removed into police custody. You were not then present. Mr Butler was. Police left at 6.08 pm. It was the last time Mr Butler was seen alive.

6 The Red Cliffs Backpackers Hostel is situated at 63 Indi Avenue. CCTV footage from the hostel shows that you were at the premises with two of its residents, Sean Warby and Melissa-Lee Connors, at 7.19 pm. The three of you left the hostel together at this time, returning approximately seven minutes later. You also left at 7.35 pm, walking in the direction of your home and returned five minutes later. For the next few hours you remained at the hostel with Mr Warby and Ms Connors, mostly in the front courtyard, where you talked, drank alcohol and smoked cannabis. You told Mr Warby about the police raiding 67 Indi Avenue earlier that day.

7 At some later point you said that you were frustrated with people, angry at everyone and wanted to burn your own house down. You said you were sick of the world.

8 At about 11.02 pm Mr Warby moved a fuel can routinely kept in a shed at the hostel to the rear gate. There is CCTV footage of him doing so. There is also CCTV footage from that time of you walking the external perimeter of the hostel towards the back gate. At 11.03 pm you turned into Isaacs Lane which ran behind the hostel and 67 Indi Avenue.

9 You took the fuel can and used its contents to help start a fire by igniting combustible material in the south eastern corner of 67 Indi Avenue.

10 The fuel can was later found discarded in the backyard of the premises. Your DNA and that of Mr Warby were subsequently found on it.

11 You returned to the hostel via Isaacs Lane at around 11.08 pm. You spoke to Mr Warby in the front courtyard. He exited through the front gate. The CCTV footage of him doing so captured the glow of the fire at 67 Indi Avenue.

12 Six 000 calls were made between 11.12 pm and 11.16 pm. One of those was from Mr Warby who said that there might be someone inside the house. Firefighters from the Country Fire Authority ('CFA') attended the scene at 11.19 pm. By that time the fire had spread to both 65 and 69 Indi Avenue. By 12.15 am on 27 February 2023 the CFA had sufficient control of the fire to begin a search of the property. Forty five minutes later the remains of Mr Butler were located towards the front of the house outside his bedroom.

13 You were arrested at about 1 am. You had a cigarette lighter in your front pocket.

14 During an interview with police on 27 February 2023 you said that you could remember nothing about the fire or conversations you had with Mr Warby. You told police that you returned to 67 Indi Avenue at 11 pm to collect a singlet to wear. You said you had consumed about 25 drinks prior to the fire and were drunk. You denied telling Mr Warby that you had lit the fire knowing Mr Butler was inside. You could not account for the presence of the fuel can in the backyard.

15 Mr Butler's body was badly damaged by fire. A post mortem examination concluded that he was alive at the time the fire was ignited. The cause of death was effects of fire in a man with severe coronary artery atherosclerosis.

16 Analysis of the fuel can revealed the presence of moderately evaporated petrol. It was determined that the fire spread from the front to the back of the house and probably from east to west. The seat of the fire appeared to be the front south-eastern corner of the house. Flammable liquid was not detected in that area. It might never have been present or it had burnt or evaporated below detectable levels. The damage was not indicative of flammable liquid spreading throughout the house.

17 The family of Mr Butler have declined to make formal Victim Impact Statements.

18 I draw the reasonable inference that his family members are shocked and saddened not only at the fact of his death, but the manner of it. Mr Butler died an horrific death.

19 It is necessary to say something of your personal circumstances.

20 You were born in the Riverland area of South Australia in 1986 and are now 39 years of age. Your parents separated when you were an infant. You were raised by your mother in circumstances of poverty. She worked as a seasonal labourer in South Australia, Victoria and Queensland. Your mother was a heavy drinker and prone to emotional instability and capricious discipline. You witnessed and experienced violence by her male partners.

21 You have three maternal half-siblings: two brothers and a sister. They all reside in the Mildura area. You have ongoing contact with your youngest brother but lost contact with your other brother and sister a year or two before the fire.

22 In your youth you enjoyed a good relationship with your father, spending time with him in the Riverland during holidays. He died at the age of 51 when you were 18 years of age.

23 Your mother has Huntington's disease and is in palliative care in Melbourne. Your maternal grandfather, aunt and uncle all died from the same disease. You have not been tested for Huntington's disease. You last saw your mother about five years ago, being about three years prior to your remand. You now receive irregular updates on her condition from your half-brother.

24 You attended multiple schools but exhibited pervasive behavioural difficulties. Your formal education ceased at the end of Year 9. You left home at the age of 14 or 15 and experienced significant periods of homelessness over the next decade. You worked a few months each year as a seasonal labourer.

25 You are of Aboriginal heritage through your mother's family, who are part of the Barkindji people. You told Patrick Newton, a clinical and forensic psychologist who prepared a report tendered on your behalf, that while you are aware of this heritage, you do not identify with it and have no desire to further explore it.

26 In your late teens you had a two year relationship which produced a daughter. You have no contact with her. You then formed a relationship which lasted some 13 years and produced two further children, now aged 13 and 10 years. The relationship was marred by mutual drug use. You have had no contact with the children since the relationship ended. Your former partner died of a drug overdose in 2024. The children now reside with their maternal grandmother. You told Mr Newton that concern for their welfare is one of your major worries.

27 You have had a significant drug and alcohol addiction since your teenage years. You started smoking cannabis at the age of 11 years. You enjoyed its effect and have smoked it throughout your adult life, up to an ounce a week, except while incarcerated or resident in a rehabilitation facility. You began to drink alcohol in secondary school. When you left home, your drinking escalated markedly and you would regularly indulge in binge drinking. At the age of 15 years you commenced amphetamine use, about a gram a week, and report that it made you feel confident. You soon progressed to methylamphetamine use as it was more readily available and more potent. After your most recent relationship ended you used methylamphetamine every couple of days, injecting more than a gram a week. At the same time you started using heroin as an 'escape'. By the time you lit the fire in February 2023 you were injecting about a half gram of heroin daily.

28 In 2021 you sought treatment for your substance related problems, participating in rehabilitation at the Wiimpatja Healing Centre for Aboriginal men. It involved a seven day hospital-based detoxification program followed by a 12 week residential program run by the Mallee District Aboriginal Services. Although you were reported to have engaged well with the program, you relapsed within weeks of discharge, recommencing heroin and methylamphetamine use.

29 Your intravenous drug use continued even after your remand. You have since been placed on the opiate-substitution treatment program and are administered a daily dose of methadone.

30 Mr Newton diagnoses you with severe poly-substance dependence with regard to methylamphetamine, opiates, alcohol and cannabis. It is currently in remission, on agonist therapy, in a controlled environment. He recommends that you participate in structured substance-related counselling and education.

31 While you currently experience some symptoms of both anxiety and depression, Mr Newton does not diagnose you with any mood disorder, anxiety related disorder, adjustment disorder or any other primary mental-health condition, nor give any opinion that you were afflicted with any such condition at the time of your offending. You are presently medicated with what Mr Newton describes as an effective antidepressant at a relatively high dose.

32 Mr Newton does observe that the unstable nature of your upbringing has had long-term consequences. Your ability to resolve problems finds expression only in unruly, antisocial and self-destructive behaviours. You impress Mr Newton as an unsophisticated man, probably of below-average intelligence, whose capacities for reasoning are limited. You have rudimentary insight into your drug and alcohol problem. You reported to him that following your relapse into drug use after the rehabilitation program you recognised that you were not 'doing well' but sought no further treatment. Mr Newton did observe that the antidepressant medication, combined with the structured activity and stable nutrition and accommodation afforded in custody, contributes to your present state of well-being.

33 As acknowledged by your counsel, the Verdins principles are not applicable to the sentencing exercise in your case.

34 Your criminal record dates to 2004 and discloses limited offending in Victoria. You have been dealt with for offences of dishonesty and violence. You have failed to answer bail. You were on bail for breaching a community corrections order when you lit the fire in February 2023. The current offence is a significant escalation in your criminality.

35 The objective gravity of your offending is high.

36 You intended to cause property damage by fire to 67 Indi Avenue, Red Cliffs. It was a residential house in a densely populated street. Thirty people were resident in the nearby hostel. Six people were in the house at number 65. The fire was lit at 11 pm on a hot Sunday night in summer. You knew the house was full of highly combustible material. You used an accelerant to start the fire. I make that finding beyond reasonable doubt. It is the only reasonable conclusion to draw from the simultaneous movements of you walking the external perimeter of the hostel and Mr Warby and the fuel can moving to the back gate, coupled with his less than convincing explanation for why he moved the fuel can at all,[1] and the DNA profiles found on the discarded fuel can in the rear of 67 Indi Avenue. That flammable liquid was not detected at the seat of the fire does not undermine that conclusion.

37 I am satisfied that you intended to cause a level of damage to the house that was significant. You did. 67 Indi Avenue had to be knocked down. Its owner received an insurance payout of $262,500. The neighbouring properties at 65 and 69 Indi Avenue were also severely damaged in the fire. In excess of $179,000 worth of damage was caused to number 65.

38 While you did not intend to cause Mr Butler's death nor foresee the probability of harm to him, I am satisfied beyond reasonable doubt that you ought to have known he was present in the house at the time you lit the fire. He was in the house the last time you had been there, you knew him to be a solitary man and it was late in the evening. You made no attempt to ascertain whether or not he was present. Your act in lighting a fire intending extensive damage to the house was, accordingly, extremely dangerous.

39 Although your offending was unsophisticated, it did exhibit a degree of planning and premeditation. You left the hostel by the front gate and walked around its perimeter to Isaacs Lane to collect the fuel can from the rear of the hostel. You then continued to the back gate of 67 Indi Avenue and from there to the veranda of the house. Your resolve to start the fire endured for some minutes.

40 The motivation for your actions is less clear. Although you and Mr Butler were not easy housemates, from the evidence that fell at your aborted trial in February 2025, I do not accept that you bore him ill will arising from a small monetary debt. You told Mr Newton that you have no recollection of the events. You said that you did not wish Mr Bulter dead. You also said that you had never lit a fire before. At the time you had been alternately using heroin, methylamphetamine and large amounts of cannabis as well as drinking heavily. Mr Newton concluded that in his opinion, the disinhibition inherent to your substance use, the squalor of your living conditions and your broader alienation from mainstream society stand out as the major contributing factors to your offending.

41 That you were intoxicated and disinhibited by alcohol and illicit drugs does not mitigate either the seriousness of your behaviour or your moral culpability for it.

42 Nonetheless, in assessing your moral culpability I place weight on the deprivation, abuse and instability of your childhood. Those experiences were not of your making but they played a significant role in shaping your personality and your ability to respond to difficulties. The law recognises that the effects of childhood deprivation do not diminish overtime and are relevant to the subjective culpability of an offender relative to a person who had the advantage of a normal, stable and regular home environment in childhood.[2]

43 Mr Newton said that your childhood left you feeling fundamentally unsafe and lacking in the security needed to facilitate healthy personality development and pro-social skills. The pattern of your itinerancy, established in early childhood, has consolidated your alienation from mainstream society. He further said that your upbringing manifested in unruly, antisocial and ultimately self-destructive behaviours. In adulthood those behaviours became incorporate, persistent substance dependence and recurrent criminal activity. In turn that precipitated persisting instability in your lifestyle which reinforced your problematic behaviour. I accept and give effect to that evidence in somewhat ameliorating your moral culpability for your offending, which would otherwise be very high.

44 I also place significant weight on your plea of guilty, which has facilitated the course of justice and has substantial utilitarian value. A trial of some weeks did not reach conclusion in February 2025. The time and public resources involved in a further trial have been spared. Mr Butler's family need not undergo the ordeal of a further trial.

45 Your plea of guilty also reflects an acceptance of wrongdoing. I am unable, however, to view it as evidence of contrition. You ran your trial in February this year not only denying that you lit the fire and suggesting that there were numerous others with animus towards Mr Butler who might be responsible, but you positively asserted that Mr Warby lit the fire. More recently you told Mr Newton that the fire was a 'tragedy'. You did not, even when prompted, express any remorse for your actions.

46 I assess your prospects of rehabilitation as guarded, but not extinguished. You have a criminal history for a variety of offending and have contravened or breached court imposed orders. And, while the obvious effects of your childhood on your lifestyle and entrenched behaviours are matters that reduce your moral culpability, they are also relevant to the protection of the community from you.

47 Mr Newton states that you seem to have benefited from the structured rhythms of, and nutrition and stable accommodation provided by, your incarceration. He also states that the effects of your substance addiction have been contained by your present circumstances. This has led to a considerable improvement in your overall psychological functioning. Nonetheless Mr Newton states that you have a number of risk factors for future offending, not least of which is the need to address your drug and alcohol addiction. He makes a number of suggestions for rehabilitative treatments that would assist.

48 I consider your drug addiction to be the most significant factor in your prospects of rehabilitation. You told Mr Newton that your daily dose of methadone was 'holding' you. To successfully reintegrate into society after your sentence, your remission from substance addiction must be deeper and more sustained than you being dependent on a drug that is sufficient only to just contain you. It is to be hoped that you take full advantage of the help that is available to you in custody. In this regard it is encouraging that you have completed a number of vocational courses, worked in timber industries and have hopes to complete a Certificate II in that field. Nonetheless given your lifelong problem with alcohol and illicit drugs, your early relapse following a residential rehabilitation and your limited insight into your addiction, the difficulty of you remaining drug free and living a prosocial life upon your release cannot be underestimated.

49 I further place weight on the delay in this matter. You have been in custody since your remand on 27 February 2023. A jury was empanelled to hear your trial for a charge of murder in February 2025. Through no fault of yours that trial was unable to reach conclusion. I accept that you have keenly felt the burden of a potential murder conviction for some time. I will mitigate your sentence accordingly.

50 I also take into account your experience of custody. In particular your trial in February 2025 was held in Mildura. That necessitated your confinement in the police cells in Mildura, except occasionally at weekends, when you were returned to Melbourne. I accept that you are somewhat isolated in custody. You receive visits and occasional telephone calls from a Melbourne-based cousin. You have the support of a childhood friend. Your brother visited you during the trial in Mildura. He also provides you with sporadic updates about your mother's health. It is unlikely that you will ever see your mother again. I also consider that 90 days of the period you have spent on remand was a sentence of imprisonment served for other offending and does not count as pre-sentence detention.

51 I turn now to consider the sentencing principles relevant to your sentence.

52 General deterrence and denunciation have significant application. The maximum penalty set by Parliament for the offence of arson causing death underscores the risk of fatal consequences inherent in deliberate destruction of property by fire. The community must understand that the lighting of a fire with the intention to cause massive damage to a residence, which results in the loss of human life, will be met with condign punishment.

53 Specific deterrence must also factor in your sentence. You are a man who has struggled to live a pro-social life. You were on bail for breaching a community corrections order at the time of your offending. You have not expressed remorse for your actions. Your prospects of rehabilitation are guarded.

54 As I have already said, although I moderate the assessment of your moral culpability in light of the ongoing effects of your childhood, I consider that the sentence I impose must also consider the protection of the community from you.

55 I have considered, to the extent I am able, comparative cases to assist in determining the appropriate range of sentences for this type. Arson causing death is an uncommon charge and it is difficult to discern current sentencing practice for it. None of the cases I have considered are comparable with either your offending or your circumstances.[3]

57 I have had regard to the maximum penalty for the offence of arson causing death and also that it is a Category 2 offence.[4] I am required to impose a custodial sentence, not in combination with a community corrections order, unless particular circumstances exist. It is not suggested that any such circumstances apply to you.

59 Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 and having regard to the matters I have just discussed, for the charge of arson causing death I sentence you to imprisonment for 11 years. You must serve a minimum of 8 years before being eligible for parole.

60 I declare that you have already served 934 days, not including today, of that sentence by way of pre-sentence detention.

61 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a total effective sentence of 14 years with a non-parole period of 10 years and 6 months.

62 I make the forfeiture order in the terms sought by the Crown.

[1] I need not make any finding as to the role Mr Warby played in facilitating access to the fuel can at the rear gate.

[2] Bugmy v The Queen (2013) 249 CLR 571, 594 [42] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J agreeing at [55]); [2013] HCA 37.

[3] I have considered R v Chambers (2003) 145 A Crim R 15; [2003] VSC 506; DPP v Bennett [2004] VSC 207; R v Sokaluk [2012] VSC 167; R v Campbell [2015] VSC 181; DPP v Hayes [2022] VSC 679.

[4] Sentencing Act 1991, s 5(2H).