DPP v Devearaux & Anor [2016] VCC 1528

1. The full circumstances of your offending are set out in detail in the prosecution opening, which will form part of this sentence. Summary Charges 1, 2, 5, 7, 8 and 11 relate to you both being involved in the lighting of grass fires at various locations in the Bendigo region, including Kangaroo Flat, Eaglehawk Train Station, Woodvale, and Lightning Hill. These grass fires were lit on days of fire danger in late January and early February 2016.
2. Summary Charge 24 relates to you both setting fire to cardboard for recycling, which was located in plastic bins at the Stewart Cohen Rehabilitation Centre in Eaglehawk on Friday 19 February 2016.
3. Ricky MacKay, you have also pleaded guilty to two extra summary charges. Charge 20 relates to you lighting a fire on Tuesday 19 January 2016 at the Crusoe Heights Reserve in Duke Street, Kangaroo Flat. Charge 23 relates to you lighting a fire in the sanitary bin at a female public convenience in

Napier Street, Eaglehawk on Saturday 13 February 2016.

1. With respect to the charges on the indictment, Charge 1 of arson relates to your actions, Ricky MacKay, on Tuesday 26 January 2016, when you set fire to a bin at the Eaglehawk Railway Station, causing approximately $100 damage to that bin.

1. Charges 2, 5 and 6 of arson relate to the two of you. They concern the three occasions when you set fire to portable classrooms of Future Employment Solutions on Market Street, Eaglehawk. With Charge 2, it was at about 2 am or 2.30 am on Tuesday 2 February 2016, with Charge 5 it was 7.05 am on Saturday 6 February 2016, and with Charge 6, at 2.20 am on Monday

2. On the last occasion, a member of the Eaglehawk Fire Brigade required an ambulance due to heat-related illness caused by the fire. He was also found to be suffering from severe fatigue, which was due to the early morning callouts.
3. The damage caused to the portable classrooms at Future Employment Solutions is estimated at $98,700.

Charge 14 of Attempting to Pervert the Course of Justice

1. Charge 14 on the indictment is a further offence which relates to the events on the Tuesday, 2 September 2016, when you lit fire to the first portable classroom. You have both been charged with attempting to pervert the course of justice. Due to your efforts to mislead the authorities about the possible cause of that fire.
2. When the Country Fire Authority arrived at the scene, you gave them your names and details. You also gave written statements to the police with regards to seeing an unknown group of youths running away from the scene of the fire.

1. Charge 3 of arson relates to your actions at approximately 4 am on Thursday, 4 February 2016, when both of you went to the Albert Roy Reserve baseball clubrooms on Victoria Street, Eaglehawk, and lit a fire. It is estimated that it will cost $550,000 to replace the building, and $35,000 for the contents. However, most of those contents are irreplaceable.

1. Charge 4 of arson relates to your actions at approximately 6.50 am on Saturday 6 February 2016, when you both returned to the Albert Roy Reserve and dropped fire lighters into a shipping container via the roof. The cost of the damage to the shipping container and its contents is approximately $20,000.

1. Charge 7 of arson concerns your actions on Tuesday 9 February 2016 when you both went to St Liborius Primary School and lit a fire, causing an estimated $400 damage to the school building.

1. Ricky MacKay, Charge 12 of arson relates to your actions in lighting a fire on 13 February 2016 in a sanitary bin at the female public convenience in Napier Street, Eaglehawk, and the damage due to this action was about $279.

14 February 2016, when you went to the rear alleyway of 30 High Street, Eaglehawk, and started a fire at the rear of the bookshop. This fire had the potential to spread throughout neighbouring businesses. It caused the carport to collapse and damaged the contents of the premises, and the estimate of that damage is $55,000.

1. Charge 9 of arson relates to your actions on 19 February 2016 when you both went to the Stewart Cohen Rehabilitation Centre in Eaglehawk and set fire to bale of cardboard located in plastic recycling bins. And the estimated cost to replace the bins is about $151.

1. Charge 10 of arson relates to a fire you lit at the base of a wooden scorer's box at Canterbury Oval in Simpsons Road, Eaglehawk on 20 February 2016. Members from the Eaglehawk fire brigade attended the scene, and a firefighter was required to be taken to hospital with a lower leg injury which occurred during the course of extinguishing the fire. The estimated cost of the damage to that building is $65,120, and the goal posts, $1,000.

1. Charge 13 of arson relates to your actions on Saturday 20 February 2016, when you both went to the Tri Star Medical Group of High Street, Eaglehawk, and lit fire to a Cleanaway bin. The estimated cost to replace that bin is $330.

1. You were both arrested on Sunday 21 February 2016, and this was as a result of the police conducting mobile surveillance on you. When you were under this surveillance, you were observed at Stewart Cohen Rehabilitation Centre seconds before a fire erupted from rubbish bins in the courtyard.

Ricky MacKay, on your arrest you were found to be in possession of a backpack which contained a number of items that can be used in lighting fires. You were both conveyed to the Bendigo Police Station where record of interviews were conducted. With regard to both your records of interviews, you denied lighting the fires which is subject of the charges on the indictment, and you denied the summary charges.

1. The final estimated bill for the damage caused by the fires is $825,000. The prosecutor tendered a number of victim impact statements. It was apparent from these victim impact statements just how far-reaching the consequences of your actions were. In lighting these fires, you not only caused financial damage, but also considerable emotional distress and despair to members of the community that were affected by the fires.
2. Hayden Allen, the captain of the Eaglehawk CFA, stated that your offences caused members emotional concern over the damage and disruption caused to the community. It took a personal toll on the firefighters as they stayed up all night to fight the fires, and were unable to go to work the next day. Time spent fighting the fires meant time spent not with family and friends. Three members required ambulance assistance, and one member had to have time off work due to a leg injury.
3. Andy Walker, the property manager for Greater City of Bendigo, reported that four properties owned by the city were damaged due to the arson. With respect to the Albert Roy Reserve clubhouse, it had served the sporting community for 30+ years. Due to your offending, the sporting community lost memories, memorabilia and equipment.
4. In her victim impact statement, Helen Aitken, the property officer for the Bendigo Baseball Society spoke of the sorrow of the baseball community at the loss of their resource. She referred to the devastation and despair felt by all members of the baseball community.
5. Donna Clark, the general manager of Future Employment stated that "the main focus of the group at the time of your offences was to use the portable classroom for disadvantaged students, who for various reasons were unable to attend regular school. These students and their parents were devastated by the loss of the buildings, and it took an emotional toll on her and her staff". By your action, she said, you took away the future of valuable programs desperately needed by the Eaglehawk community.

1. Ricky MacKay, details of your personal circumstances were provided to the court by your counsel, and further details were contained in a report from Pamela Matthews. You were born on 8 March 1994, which means that you were 21 at the time of your offending. Your parents separated when you were only a baby. You grew up with your father and stepmother, and older stepbrother, sister and younger brother in Ferntree Gully. You have always had a good relationship with your father, and you find it hard to cope not being able to see him while you are in gaol. You informed Ms Matthews that your older brother had been sexually and physically abusive towards you when you were in Grade 4. You have no substance problems.
2. You left school in Year 10 and struggled academically. You still have problems with literacy and numeracy. After you finished school you completed a Certificate II in Automotive at Swinburne TAFE. You then found work at a Nissan dealership, where you started an apprenticeship. You remained there for some six months before losing your job. You have not been able to find work since then. This is one of the reasons you came up to Bendigo, to try and find work.

1. On p.8 of her report, Ms Matthews assessed you as being "a young man who presented with cognitive impairment", which she considered an additional vulnerability in relation to social influence, manipulation and abuse. In particular, you had a reduced skillset to reduce social persuasion or victimisation, and a limited capacity to reason flexibly in situations in which solutions appeared limited."
2. In her opinion, you were "unlikely to have been the instigator or a persuasive social force in the current matters before the court. Your low-level cognitive ability in combination with your social vulnerability to victimisation would also make you extremely physically, socially and emotionally vulnerable in an adult prison population."

1. Corey Devearaux, I will now move on to consider your personal circumstances. You were born on 13 March 1993 in Bendigo, and you have three younger brothers. Your parents separated when you were quite young.
2. In his psychological report of 19 July 2016, Warren Simmons reported that you told him that you could recall moving backwards and forwards between your mother and father over the years. It appears from Mr Simmons report that you had a conflictual relationship with both your father and stepfather. Due to your conflictual relationship with your stepfather, you were asked to leave home when you were 15, and for a period of time you were couch-surfing.
3. With regard to your school years, it appears from Mr Simmons' report that you were a disruptive student, always getting into trouble. You commenced Year 11 at Bendigo Senior Secondary College, and you were asked to leave because of your poor behaviour at school.
4. On a more positive note, you completed Certificate II in Transport and Logistics as a Year 12 equivalent, and apparently you enjoyed this course. You then had employment at KR Castlemaine for a period of a year until about 12 months ago, when you lost this position due to illness. You have been on Newstart Allowance from that date until the date of your arrest. While you have had substance abuse issues in the past, it is not suggested that you have any current problems with either alcohol or drugs.
5. With respect to your psychiatric history, although both your brothers have been diagnosed with attention deficit hyperactivity disorder, you have not been diagnosed with this disorder. However, Mr Warren was of the opinion that your poor school history was suggestive of some type of childhood disorder.

1. With regard to the offences before the court, Mr Warren could find no motive for your offending. In his opinion, irrespective of who lit the fire, when two individuals are involved, it is more likely the case that one acted as the instigator of the behaviour, and the other one was the follower. On your instructions to him, you were the follower rather than the instigator.
2. Mr Warren considered that you had some potential for rehabilitation in that you did not have any significant antisocial personality traits, and there was a lack of prior offending behaviour.

1. Before moving on to the mitigating circumstances relied upon by each of you, it is necessary to deal with the fact that you both claim that you were the follower rather than the instigator in the lighting of the fires. On the last page of her report, with respect to you, Ricky Mackay, Pamela Matthews said:

"The writer cannot speak of the abilities and capabilities of Mr MacKay's co-offender. However, on the available clinical information, it is the writer's view that Mr MacKay is unlikely to have been the instigator or a persuasive social force in the current matters before the court, but rather his social vulnerabilities and cognitive deficits are more likely to place him in the current context of the matters before the court as the follower."

1. However, in his report on your behalf, Corey Devearaux, Warren Simmons stated on p.4 that:

"It was possible that the fire setting developed in the situation where his co-accused was the more dominant person in the relationship, and Mr Devearaux was more of a follower, and therefore is caught up in the other individual's motivations rather than his own."

"It would appear that his co-accused may have had a greater role in lighting the fires, especially as he has also been charged with lighting other fires, where Mr Devearaux was not present."

1. It is difficult, in all the circumstances of this case, to determine your respective roles. In his plea on your behalf, Ricky MacKay, your counsel advised the court that you accepted that you were equally complicit in the offending.

Corey Devearaux, in his plea on your behalf, your counsel sensibly did not dispute this. I am satisfied that irrespective of the role you both played, you were equally complicit in the offending. Given the period of time over which the offending occurred, if one of you was a follower rather than the instigator, you had ample opportunity to walk away from the situation.

1. In their respective pleas on your behalf, both your counsel accepted that given the number of charges and serious nature of your offending, denunciation as well as general and specific deterrence required a term of imprisonment. They relied on the following mitigating circumstances to seek a minimal non-parole period or imprisonment in combination with a community corrections order:
   • your early pleas of guilty at the committal mention;
   • your remorse;
   • your lack of prior offending;
   • that you were both youthful offenders, so rehabilitation was an important sentencing consideration;
   • that your offending had occurred over a period of approximately one month and was of a very similar nature with a great deal of commonality, so that concurrency with respect to individual charges was an important factor;
   • the principles of totality and proportionality were also said to be applicable.
2. Insofar as your plea of guilty was concerned, it was submitted that they were of a significant utility. Your plea of guilty resolved a number of incidents that had been investigated by Victoria Police, avoiding the need for further investigation. It also avoided the necessity of calling some 58 witnesses, and the cost to the State of a lengthy trial.
3. With respect to your remorse, Ricky MacKay, your counsel tendered two letters you had written to the court. While in one of these letters you downplayed your role in the offending, essentially you accepted responsibility for your actions. You apologised for what you had done in these letters, to the police, the fire brigade and, "most of all to the Bendigo community."
4. Your counsel also tendered a letter from your father, David MacKay. In this letter, he referred to your lack of maturity for your age and your tendency to be easily influenced by others. He confirmed that you regretted your offending. Your stepmother also provided a reference, in which she said that given the right path, you were willing to improve yourself.
5. Corey Devearaux, you instructed your counsel that during your time in custody, you had the opportunity to reflect on the impact of the offences on the community. You felt extreme remorse for your actions and your behaviour. Your counsel tendered a letter from your grandfather, who confirmed that you had expressed your remorse to him, and he confirmed that your time in custody had helped you to reflect on the seriousness of your offending.
6. There was also a letter from Mr Shane Lane, who had known you for about 13 years. He stated that you had expressed your remorse for your offending.
7. With respect to you being youthful offenders, both your counsel relied on the general proposition in Mills case, that with youthful offenders, particularly first offenders, rehabilitation is usually far more important than general deterrence. It was submitted that as you were both young and first time offenders, rehabilitation must be an important sentencing consideration.
8. Corey Devearaux, your counsel submitted that given your lack of prior offending, your prospects for rehabilitation were good. In his report,

Mr Simmons had commented that you did not have significant antisocial personality traits, and your lack of prior offending was to your benefit.

9. Ricky MacKay, you also have no prior offending, and your prospects for rehabilitation were also submitted to be positive. In this respect, your counsel submitted a number of statements of your results from the Box Hill TAFE Institute with regard to a number of course you have undertaken while in custody.
10. In your case, Ricky MacKay, the court was urged to take into account a further mitigating sentencing consideration. This was Ms Matthews' opinion that "in combination with your social vulnerability to victimisation, you would be physically, socially and emotionally vulnerable in the adult prison population, and that exacerbation of your current mental state and emotional problems was more likely to occur than not in such a context."

1. In the sentencing submissions made by the prosecutor, it was accepted that you were youthful offenders and that rehabilitation was an important sentencing consideration. However, it was also submitted that your prospects of rehabilitation were guarded, in particular because there was no explanation as to why you lit the fires. It was also submitted with respect to you,

Ricky MacKay, that you had shown limited insight in to your offending.

2. The prosecutor referred to the fact that you were both responsible for lighting a large number of fires. It was an aggravating feature that the fires were lit in January and February, being months of fire danger. She also referred to the fact that, in the course of lighting the fires, some of the brigade members had required an ambulance, and another officer had suffered an injury to his leg.
3. It was submitted that protection of the community was a significant sentencing consideration. Denunciation of your conduct was submitted also to be of importance, as was specific and general deterrence. It was submitted that in all of the circumstances of your offending, the appropriate sentencing disposition was a custodial sentence.

1. In sentencing you both, I have taken into account all the mitigating factors referred by your respective counsel. I accept that your pleas of guilty had a significant utilitarian benefit, and saved the witnesses the stress of giving evidence, and the State the expensive of a long trial. I accept that your pleas of guilty were a reflection of your remorse, which I accept as genuine.
2. I have taken into account that you are both youthful offenders, and that you have no prior convictions.
3. I accept, Ricky MacKay, that you have a lack of maturity for your age, and I accept that your overall functioning is on the low-borderline range. I accept that you failed to recognise and appreciate the seriousness of the consequences of your offending.
4. Corey Devearaux, I accept that, as a young offender, you also failed to recognise and appreciate the seriousness of your offending. In sentencing you both, I have taken into account the importance of rehabilitation for young offenders.
5. In sentencing you, Ricky MacKay, I have also accepted Ms Matthews' opinion that due to your cognitive difficulties and susceptibility to victimisation, your time in custody would be more difficult than for those who do not suffer from this deficit. In accordance with the principles in Verdins in sentencing you, I have taken these difficulties into account.
6. However, even allowing for all the mitigating factors I have referred to, this case presented a difficult sentencing exercise with respect to you both. This is because of the serious nature of your offending and the effects it had on the community. While no lives were lost, the community lost educational and sporting facilities which have enriched their lives. In the case of the portable classroom, for example, they gave young people who had fallen through the gaps an extra chance at an education. The loss of the sporting club used by the baseball community has taken away a valuable recreational facility. Fire crews had to extinguish all the fires you lit over that dangerous summer period.
7. In addition to the member who suffered heat exhaustion and the member who injured his leg fighting the fire, all the firefighters who were involved over this period had to suffer the danger, stress and exhaustion of fighting fires that you deliberately and thoughtlessly lit. Arson is a very serious crime, as is reflected in the maximum length of imprisonment. Protection of the community is an important consideration, and I must take into account both specific and general deterrence.
8. You have also been charged with attempting to pervert the course of justice. In the case Healy, the sentencing judge said:

"The administration of justice depends upon the system operating so that people who commit crimes are pursued and brought to court, and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned."

1. Ricky MacKay and Corey Deveraux, in all the circumstances of your offending, I consider that an immediate sentence of imprisonment with a longer than normal parole period, which will take into account your youth and prospects of rehabilitation, is the most appropriate sentencing disposition.

Sentencing Act Provisions

1. Pursuant to s.6B(2) of the Sentencing Act, once you have been convicted and sentenced to a term of imprisonment on an Arson offence, on the following counts you are to be sentenced as a serious arson offender, and that applies to both of you. Pursuant to s.6D the court must regard the protection of the community from you as the principle purpose for which the sentence is imposed. In order to achieve that purpose, the court may impose a sentence longer than that which is proportionate to the gravity of the offences considered in the light of the objective circumstances.
2. It has not been suggested by the prosecutor that I should impose a disproportionate sentence, and I do not intend to do so.
3. Section 6E of the Sentencing Act provides that unless directed by the court, every sentence imposed on a serious offender must be served cumulatively. Taking into account the principles of totality and proportionality in both your sentences, there will be some concurrency.

1. On Charge 3 you are sentenced to two years' imprisonment. This is on charges on the indictment.
2. On Charge 10, 8 and 14, you are sentenced to 12 months' imprisonment.
3. On Charges 2, 5, 6 and 4, you are sentenced to nine months on each charge.
4. On Charge 7, you are sentenced to six months.
5. On Charges 1, 9, 11, 12 and 13, you are sentenced to three months on each of these charges.

1. With respects to the summary charges, on Charges 1, 2, 5 ,6, 7, 8, 11 and 20, you are sentenced to two months on each charge.
2. On Charges 23 and 24, you are sentenced to one month on each charge.

1. Now, the orders for accumulation are as follows:
2. The sentence of two years on Charge 3 of arson is the base sentence.
3. I accumulate five months of the sentence on Charge 14, which was the sentence of attempting to pervert the course of justice, on Charge 3.
4. I accumulate four months of the sentence on both Charge 10 and 8 of arson on Charge 3.
5. I accumulate three months of each of the sentences on Charges 2, 5, 6 and 4.
6. I accumulate one month of each of the sentences on Charges 1, 9, 11, 12, 7 and 13.
7. With respect to the summary charges, one month of each of the sentences on Charges 1, 2, 5, 6, 7, 8, 11 and 20 are cumulated on the base sentence.

1. This results in a head sentence of five years and three months. I fix a non-parole period of three years.
2. Pursuant to s.6F of the Sentencing Act, on Charges 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of arson, you are to be sentenced as a serious arson offender.

1. But for the plea of guilty, you would have been sentenced to seven years with a non-parole period of four years and eight months. You may sit down.

1. Corey Devearaux, on Charge 3 you are sentenced to two years' imprisonment.
2. On Charge 10, 8 and 14, you are sentenced to 12 months' imprisonment on each charge.
3. On Charge 2, 5, 6 and 4, you are sentenced to nine months' imprisonment on each charge.
4. On Charge 7, you are sentenced to six months' imprisonment.
5. On Charge 9, 11 and 13, you are sentenced to three months on each charge.

1. On the Summary Charges 1, 2, 5, 6, 7, 8 and 11, you are sentenced to two months on each charge.
2. On Charge 24, you are sentenced to one months' imprisonment.

1. The sentence of two years on Charge 3 is the base sentence.
2. I accumulate five months of the sentence on Charge 14 on the base sentence.
3. Four months of the sentences on both Charges 10 and 8.
4. Three months of the sentences on Charges 2, 5, 6 and 4.
5. One month of the sentences on Charges 7, 9, 11 and 13.
6. With respect to the summary offences, once month of the sentences on Charges 1, 2, 5, 6, 7, 8 and 11.

1. The head sentence is a sentence of five years. I fix a non-parole period of three years.
2. On Charges 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, you are sentenced as a serious arson offender.

1. Pursuant to s.6AAA, but for the plea of guilty, you would have been sentenced to seven years to serve four years.
2. While your sentence is the same, effectively, as your co-offender, and you faced less charges, with respect to your co-offender, I took into account his position in terms of his intellectual problems, Pamela Matthews' opinion and the principle of Verdins. This accounts for the discrepancy. It accounts for the fact that the sentences, effectively, when it comes to the non-parole period, are the same. You may sit down.
3. Counsel, you can remain behind, and my associate will go through with you the sentences, because there were a lot of charges, and I understand it can be a little bit difficult to keep track of. But we have checked them many times to make sure that the maths are right, and certainly they will go through them with you.
4. What is presentence detention with respect to both these gentlemen?
5. MR BROWN: Yes Your Honour, it is 235 days I have got, Your Honour.
6. HER HONOUR: How long is it?
7. MR BROWN: Two-hundred and thirty-five days.
8. HER HONOUR: With both of them?
9. MR BROWN: Yes, Your Honour.
10. HER HONOUR: I declare 235 days presentence detention with respect to both offenders. 236 according to my
11. MR BROWN: I do not know whether my instructor is including today. My instructor is not including today, so I suppose it depends on what you
12. HER HONOUR: Two-thirty-six.
13. MR BROWN: Yes.
14. HER HONOUR: I will make it 236 as time already served.
15. MR BROWN: Yes, and Your Honour, there is a disposal order, I think there might be some problem with it though, from discussion at the Bar table before
16. HER HONOUR: Well, why do you not come to an agreement and send it to me, and I can make the disposal order in chambers. It is by consent, I presume?
17. MR HABIB: Yes, Your Honour. It is simply which accused it is attached to that is the issue.
18. MR BROWN: Yes, we may have the wrong accused, I am not sure, Your Honour.
19. HER HONOUR: All right, well you can sit down. I am going to be here, so if you have any matters that you need to discuss with me, you can do that. Is there anything else arising from the sentence?
20. COUNSEL: No, Your Honour.
21. HER HONOUR: Yes, would you please remove the prisoners? Yes, you can adjourn the court.