DPP v Bennett [2004] VSC 207

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2. John Robert Bennett, you have pleaded guilty before the Court to three serious offences, one with tragic consequences. You have pleaded guilty on Count 1 to the offence of arson causing death, by lighting a fire at the Criterion Hotel in Sale on 1 March 2002 which caused the death of Adam Richard Prendergast. You have pleaded guilty to two further counts: Count 2, reckless conduct endangering life, by lighting a fire at premises at Aerodrome Road, Sale on 24 November 2001 which grievously put at risk the lives of the family living there including five young children; and Count 3, reckless conduct endangering life, by lighting a fire at premises at Newton Drive, Stratford on 12 October 2002 which put at risk the lives of the family living there including a physically impaired young girl.

5. Each of these offences is most serious, Counts 2 and 3 because of the potential danger caused to numerous innocent people, and especially Count 1 at the Criterion Hotel because of the tragic death of an innocent young man and also the potential danger to the two other persons asleep at the hotel at the time.

8. There are four striking things about these offences. First, the seriousness of the danger you created in each instance including causing the death of a young man. Second, they were repeat offences committed by you over an 11 month period. Third, they all involved the use of fire. And fourth, you, the offender, are a young man with a deep psychological problem.

11. You, Mr Bennett, were born in Launceston, Tasmania on 7 October 1980 and are now 23 and a half years of age. Your father was 32 years older than your mother. Your parents separated shortly after you were born and while you remained with your mother you had numerous stepfathers. You had a difficult upbringing. One of your stepfathers subjected you to beatings. You felt your mother preferred others of your seven siblings to you which greatly affected you.

14. You attended school until early in Year 11. You are not unintelligent. You left your family which was then on the east coast of Tasmania and moved to Westbury near Launceston. As a result of a split-up with your girlfriend in July 2000 when you were 19 years of age, you shot yourself in what may have been an attempted suicide, seriously injuring yourself in the left shoulder. You underwent extensive surgery and suffer from the injury to this day. In the course of medical treatment you were transferred to Melbourne and upon discharge came to Sale in August 2001 where you lived with relatives. Three months later you committed the first of these offences, on 24 November 2001.

17. In November 2001 you were residing in premises at Aerodrome Road in Sale with your aunt, her partner and five young children aged between eight years and 18 months. You would sleep on a couch in the lounge. On the night of 23 November 2001 the family were in their beds asleep. You were out. You came home in the early hours of 24 November 2001. It is not apparent why you did what then you did. You later said that the door was locked, but it was not. You later briefly spoke disparagingly of your aunt's partner, but said nothing more than often is said in ordinary human discourse. I have no doubt that alcohol was a precipitant factor, but not the cause, of your behaviour. When the family were asleep you entered the premises being a domestic house and started the heater in the loungeroom, placing flammable material next to it. It lit. You then left the house and went to sleep in your car parked in the garage. Combustion occurred in the loungeroom and smoke began to spread throughout the house. Fortunately the eldest child aged eight woke up and smelt the smoke. The child alerted her mother, your aunt. The mother awoke everyone in the house. The CFA was urgently called. It attended and the fire was extinguished. All the time you remained outside in your car.

20. You told investigators lies about what had happened, pretending you did not know anything about how the fire had started. You falsely claimed that you could not get into the house when you came home and that you therefore slept in your car.

23. Your aunt was required to be hospitalised for a day by reason of asthmatic reaction to the smoke. But for the child waking, the whole family could have been killed.

26. Just three months later, you caused the fire at the Criterion Hotel in which Mr Adam Prendergast died.

29. Adam was born on 14 February 1982 and was just 20 years of age when he died. He was a good young man who had his life before him. He had a loving family. He was educated initially in Melbourne and then in Gippsland, including at Sale. At the time of his death, he was working part-time at the Criterion Hotel and was residing there. Adam's parents, especially, and his family and friends are grievously afflicted by his loss.

32. On the night of Thursday, 28 February 2002, a pool competition had been held at the Criterion. Numerous persons were drinking at the hotel, including Adam and you. Shortly after midnight, Adam went to his room at the rear of the hotel and went to sleep fully clothed on his bed. The daughter of the licensee, Ms Raybould, went to his room at about 12.45 a.m. to see if he wished to join others to continue socialising. She found you in Adam's room and Adam asleep on his bed. She and you tried to wake Adam, who briefly awoke, told you to "fuck off" and went back to sleep. You and Ms Raybould went back to the other friends. The young group went on to other local nightspots in the immediate vicinity.

35. Ms Raybould went to bed. She and her father, the licensee, were both asleep in their rooms at the hotel when at about 3.25 a.m. you awoke Mr Raybould by banging on his door and alerting him that there was a fire at the rear of the premises.

38. Mr Raybould immediately telephoned 000. The call is recorded as having been made at 3.28 a.m.

41. Mr Raybould and you attended the fire at the rear of the premises, using hand held extinguishers and a garden hose in order to extinguish it. The CFA arrived speedily. The fire was then extinguished. A member of the CFA entered the smoke-filled room and located Adam's body. Adam was immediately evacuated from the room and the ambulance called. It arrived and Adam was taken to the Gippsland Base Hospital, where he was pronounced dead at 4.30 a.m.

44. A post-mortem was held on 4 March 2002. Adam's body had been extensively burnt. The main bronchi, the trachea and larynx revealed heavy carbon deposits. Toxicological analysis revealed lethal levels of carboxyhaemoglobin and hydrogen cyanide. Examination of the lungs revealed likewise. The cause of death was determined to be asphyxia from lethal blood concentrations of carbon monoxide and hydrogen cyanide caused by the fire.

50. At the fire scene and afterwards, you showed apparent distress and apparent willingness to help in the rescue and recovery process.

53. Just like with your aunt's home at Aerodrome Road three months earlier, you told lies about what you in fact had been doing at the Criterion Hotel.

56. You had in fact entered Adam's room in the early hours of 1 March 2002. He lay there asleep. You knew he was in a deep sleep. You then lit a candle on the sofa next to his bed. There was much flammable material in the room. You then silently left the room which locked, and left Adam to his fate.

59. Again, it is not apparent why you did what you did. Again, I have no doubt that alcohol was a precipitant, but not the cause**.**

62. Even though you had thus caused the death of an innocent young man, seven months later you were at it again.

65. This time, on 11 October 2002, you and other young persons were attending a 20th birthday party at Newton Drive, Stratford, a rural property. It was a happy occasion. By 2 a.m. the parents of the 20 year-old had gone to bed in the house and were asleep, as was their young daughter who had a severe physical disability and as also asleep were some guests. A small group of young persons including yourself remained outside. An argument occurred and you were told that you were not welcome and to "fuck off." Some time later the parents were awokened by the sound of a smoke detector alarm and by the smell of smoke. They found a fire in their son's unoccupied bedroom, the mattress and bedding being alight. The fire was extinguished and the smouldering mattress and bedding were removed from the smoke-filled room. You were found nearby on a hay bale. You lied again. You said you did not know where Craig's room was, knew nothing about how the fire could have started, that the fire brought back bad memories for you of the fire at the Criterion Hotel, and that you "couldn't believe how this has happened after all the other things that had happened" (D.402). In fact, you had entered Craig's empty bedroom and had lit the bed mattress with a cigarette lighter.

68. Again, I have no doubt alcohol was a precipitant of your behaviour at Newton Drive Stratford, but not the cause.

71. Characteristically, arson is a difficult crime to detect and to prove. In each of these crimes you utilised domestic items, disguising what really happened. You did not use any accelerant.

74. Normal investigation techniques had been unable to ascertain your true role in these terrible events. Accordingly on 24 October 2002 an extensive covert police operation in relation to you commenced. Ultimately on 12 December 2002 you made admissions about your role to an undercover officer whom you did not know was a policeman. You were then formally interviewed by police. You declined to answer police questions as was your right. You were charged with the murder of Adam Prendergast and with arson causing his death and with relevant charges in relation to the Aerodrome Road fire and the Stratford fire.

77. A four day committal hearing was held in the Moe Magistrates' Court from 17 to 20 November 2003 at the end of which you pleaded not guilty to the charges. The case was committed to the Supreme Court. The matter was listed in the Supreme Court in Melbourne on 2 March 2004 for first directions at which you pleaded not guilty. The matter was set down for trial. Pre-empanelment matters were heard by me in Melbourne commencing on 14 April 2004. Then on 30 April 2004 in Melbourne you pleaded guilty to the three charges for which today I am to sentence you and for which you pleaded guilty again yesterday here in Sale.

80. The decision by the Director of Public Prosecutions not to proceed with the murder charge but rather to accept your plea of guilty to the count of arson causing death was in my view, in all the circumstances, a responsible and proper one.

83. The offence of arson causing death is a relatively new offence, having been introduced in 1997[1]. It has as a maximum penalty 25 years' imprisonment, which is a very substantial penalty. As I have said, arson is a difficult crime to detect and to prove, which is a factor relevant to penalty. Of course, the central reason why the penalty for arson must be substantial is its terrible potential, tragically demonstrated here.

86. I have had the benefit of a very clear plea made on your behalf by your counsel Mr Montgomery. He has pointed to a number of matters to be taken into account in your favour in mitigation of penalty: your relative youth, your difficult upbringing, your plea of guilty to these three counts, the saving for the witnesses of further trauma by your plea of guilty, your remorse and shame, your medical condition with your left shoulder, your comparative isolation in prison with relatives geographically distant, your commendable application in prison to prison programs and the burden upon you over time of the charges including, originally, murder.

89. Mr Montgomery's plea was most helpful and I substantially agree with what he said.

92. First upon sentence, your youth is important. You are only 23 and a half years of age. In my view you are emotionally younger than that. You are not a hardened 23 years but on the contrary, have symptoms of vulnerability. The witness, Ms Hooker, Youth Development Officer called on your behalf, spoke of your naivete when first you came to prison upon remand of these offences. She said you were "very young" in your presentation. Your youth, both chronologically and emotionally, is a significant matter which moderates the sentences to be imposed upon you.

95. You have some minor prior convictions which in view of the seriousness of these charges I disregard, except that they demonstrate a problem with alcohol, a matter to which I shall come.

98. I consider you have a sense of shame and some remorse for your offences. I do not consider you are fully remorseful but that may be in part because of your own psychological limitations. After a considerable time and numerous legal proceedings you have pleaded guilty to these three counts. Although not made at the outset your plea of guilty is important because it has saved the many witnesses who have been afflicted by these events from suffering even further by the giving of evidence. It also further demonstrates some remorse by you. Specifically for your pleas of guilty I have reduced the penalties otherwise I would have imposed upon you by one quarter[2].

101. Your time in custody will be more burdensome upon you because of your youth and naivete, your shoulder condition and the geographical distance of your relatives. I take those matters into account.

104. In each of the offences you were to some extent affected by alcohol consumption and alcohol was a precipitant of each of the offences you committed. You have a history of problems with alcohol. I take the matter of alcohol into account and I shall return to it.

107. I am impressed, as was the Youth Development Officer Ms Hooker, with your positive behaviour in custody and with your positive efforts as signified by the courses you have undertaken and by the certificates, Exhibit 1, you have already achieved. These positive efforts together with your youth and your pleas of guilty are the harbinger of reformation - always a central matter in sentencing and especially with a young offender such as you.

110. However there is a shadow of uncertainty cast over the positive matter of rehabilitation, as it is over these whole proceedings, and that is the true cause of your criminal behaviour. It is insufficient to point to alcohol intoxication which as I have said is significant as a precipitant, but not as the cause of your crimes. Alcohol is only the means. What is it in you that alcohol emancipates?

113. You have been psychologically or psychiatrically examined (I do not know which) by a professional or professionals retained on your behalf. No such evidence has been called on your behalf and no psychological or psychiatric report tendered on your behalf on the plea. As this is the criminal and not the civil jurisdiction I make no adverse inference against you from that recalcitrance[3]. But that leaves the Court in the dark as to why you did it.

116. In crime it is always important to understand the causes of crime, not least because the accused deserves understanding and also because such understanding may modify punishment and may assist reformation.

119. There is a substantial body of knowledge on the causes of arson which I had reference to before coming here to Sale in the expectation that there would be such evidence called before me either orally or by report. I footnote that material but shall not here in Court state it[4]. The obvious causes of arson - for example, monetary gain from insurance or hate or revenge - do not apply to you. There is no evidence before me that you suffer from any psychiatric illness or psychological disorder. You are not intellectually handicapped. The most that has appeared is that you acted under partial influence of alcohol in a state of some resentment, annoyance or animosity. They are lamentably inadequate descriptors of why you did such terrible things - why you put at risk so many lives, causing the death of one person, and why you chose fire. There is a true reason, or if multifactorial, reasons. I do not know what.

122. Whatever the true reason or reasons, they are of little help to those whose lives you have afflicted. As I said yesterday, and I repeat, I have studied the many victim impact statements in this case, and they are most moving and impressive documents.

125. On two counts, Counts 2 and 3, you put the lives of many people in grave jeopardy. At Aerodrome Road, the sleeping family with five innocent children could have been engulfed. At Stratford, there was less risk because some young partygoers were still awake; but you lit that fire after you had previously caused the death by fire of another human being. In the circumstances I regard each of those two counts, Aerodrome Road and Stratford, as equally serious on sentence.

128. On Count 1, you caused the death of a good young man who had his life before him. You did not intend to kill him, but you knew what you were doing, and were reckless as to it. Although you later said to a covert operative "It was like I was oblivious to the fact that something might happen" (D.1027), you knew what could happen; and it did. On Count 1, at the Criterion Hotel, you are to be punished not only for what you did and for the tragic consequences of what you did, but also for your knowledge and your recklessness as to it. On Counts 2 and 3, at Aerodrome Road and Stratford, you knew what could happen and you were reckless as to it. On those occasions thankfully, the worst did not happen, but that is no thanks to you.

131. Of the principles of sentencing, general deterrence is relevant as these offences are most serious and there is a terrible potential in fire. Whatever your underlying problem is, Mr Bennett, or problems, specific deterrence is especially relevant in your case. These were three separate fires committed over 11 months, the last after you had previously caused the death of another human being. Reformation also is centrally relevant, for the reasons I have stated. As there are three counts I bear in mind of course the principle of totality.

134. You have spent 541 days in pre-sentence detention on account of these offences. Pursuant to s.18(4) Sentencing Act 1991, I declare that period of 541 days as already served under the sentences I impose, and I so certify.

137. Mr Bennett, on Count 1, arson causing the death of Adam Prendergast, I sentence you to ten years' imprisonment.

140. On Count 2, reckless conduct endangering life at Aerodrome Road, Sale, I sentence you to five years' imprisonment.

143. On Count 3, reckless conduct endangering life at Newton Drive, Stratford, I sentence you to five years' imprisonment.

146. I direct that the sentence imposed on Count 3 be served wholly concurrently with the sentence imposed on Count 2.

149. I direct that two years of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1, making a total effective sentence on the three counts of 12 years' imprisonment.

152. I direct that you serve a minimum term before eligibility for parole of eight years' imprisonment.

(Prisoner removed.)

Sine die.

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[1] Inserted by s.55 Sentencing and Other Acts (Amendment) Act 1997. For the second reading speech, see (1997) 43 Hansard (Assembly) 871. This is the second sentence imposed under s.197A, the first being R v Chambers (2003) VSC 506 (19 December 2003).

[2] As was correctly stated in R v Williscroft & Ors [1975] VicRp 27; (1975) VR 292 at 300 per Adam and Crockett JJ.

"... ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the sentencing process". The reasons for that correctness are stated in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at [13] - [18] per McHugh J and in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 generally and at [74] - [78] per Gaudron, Gummow and Hayne JJ. (quaere Kirby J at [102] - [103]). However in R v Taing; R v Ly (2004) VSCA 46 (2 April 2004) Coldrey A.J.A. (in whose reasons Vincent JA. and Smith A.J.A. agreed) stated:

"... it is important, if the administration of justice is to be facilitated, that defendants not only receive appropriate credit for pleas of guilty, but that they appear to do so. If legitimate pleas of guilty are to be entered, it is necessary that barristers are able to assure their clients, and their clients are able to accept, that any purported sentencing discount is real and not illusory."

For some time, as here, on sentence I have been stating the quantum of discount I have given on pleas of guilty. Such statement in my view does not derogate from the Williscroft principle of instinctive synthesis, which should be retained. The discount for a plea of guilty is qualitatively distinct from the other multiple factors involved in the sentencing discretion; and its articulation should serve the purpose stated by Coldrey A.J.A. quoted above. It may also go an acceptable distance to the transparency spoken of by Kirby J. at [102] in Wong but without abandoning the instinctive process.

[3] By analogy with Dyers v The Queen (2002) 210 CLR 285 especially at [5] - [6] per Gaudron and Hayne JJ., Kirby J at [52] - [53] and Callinan J at [121]; contra McHugh J.

[4] In particular, D.F. Koson and J. Dvoskin "Arson: a diagnostic study" (1982) 10 Bulletin of the American Academy of Psychiatry and Law 39, H. Prins, G. Tennent and K. Trick "Motives for arson (fire-raising)" (1985) 25 Medicine, Science and the Law 275, J.L. Geller "Arson in review: from profit to pathology" (1992) 15 Clinical Forensic Psychiatry 623 and R.N. Kocsis and R.W. Cooksey "Criminal psychological profiling of serial arsonists" (2002) 46 International Journal of Offender Therapy and Comparative Criminology 631.