DPP v Payne [2017] VCC 347

8. If you do commit any offence, you will now be in a position where you have a substantial criminal record. Originally, before Judge Dean, you did not have any criminal record at all. You have, before me, just one prior criminal conviction. If you become before a court again, you will have a significant criminal history and you should expect to go to gaol for quite a long time.
9. Now, I have heard and I accept that the act of setting fire to the caravan came about as a result of your general mental trauma. One of the significant matters about that mental trauma was your relationship with your daughter, the fact that your daughter was about to have a baby, and the fact that you did not like the father of the baby, who was then living with your daughter and who still lives with your daughter.
10. I accept that it was within the context of all of those difficulties, and as your counsel has said, as some sort of a "quick solution when you were having a moment", that you lit the fire.
11. I accept that you have now pleaded guilty to that offence and that that means that you need to be given some discount for that plea, particularly because you have saved further trauma to witnesses in this matter and you have saved the community the further expense of this trial.
12. I accept also that in recent years you have undergone a fair bit of other trauma. You have lost your father, you have lost your eldest brother. You have had as I said some separation difficulties with your daughter but it appears to me,

Mrs Payne, that you have a pretty stable network of family which you can rely upon in the future if you decide to take advantage of it.

13. You have got still your elderly mother. You have got your own brother and sister in Geelong. You have got two children and this is the first grandchild. You now have the opportunity, as I said at the very start to use this as a new beginning.
14. You have been imprisoned for 511 days. In my view that is a sufficient time in prison to serve as the sentence in this case. It has been put to me very clearly by the prosecutor that the prosecution position is that you need some intense monitoring and you need some further disposition by way of a community corrections order to achieve that.
15. I have however in this court heard your daughter yesterday in the witness box. Your daughter told me that she wants to look after you. Your daughter told me that she wants to reconcile with you. Your daughter told me she does not understand why you did what you did. It is agreed I think now on both sides that in lighting the fire you intended to deflect the responsibility of lighting that fire onto either your daughter or your daughter's boyfriend.
16. Now I think you are at a cross roads. I do not think that the imposition of a community corrections order is going to assist you because your rehabilitation is going to be up to you. I do not think the community will benefit in any more significant way by you having an additional community corrections order to that imposed by Judge Dean than it will by the fact that you have finally decided to plead guilty this morning, and that you have decided to put this behind you completely and re-join society.
17. So what I am going to do Ms Payne is to order that on this offence you are convicted and sentenced to serve a total of 512 days in custody. That comes up to today. Whether you are actually released today or tomorrow will be a matter for the police because you need to be administratively exited through the process. So all I am going to do is to make that order.
18. If I am wrong about all this, and you offend in the future and particularly if you light another fire ever, you should expect not to see your grandchild, not to see your daughter, not to be able to live in the community with your brothers and sisters and your mother but to spend a very significant time in gaol. The prospect of that will be enhanced of course, if you were to light a fire and someone was injured or killed as a result.
19. You clearly have very significant issues that you have to work through. I have not gone into all of the issues that are set out in the report of Danny O'Sullivan, but I expect that those matters will need to be revisited by you and by your family. You have got your daughter sitting in court here today. She has heard all this. If this does not work; if you do not change as a result of this opportunity then it is hard to see anything that will change you.
20. Can I say to you that if you had not pleaded guilty today then I would have sentenced you to a term of imprisonment of three years and I would have ordered that you served two years in prison before being eligible for parole.
21. Now Ms Payne you are a fairly articulate lady. Have you understood all that?
22. OFFENDER: Yes I have, Your Honour.
23. HER HONOUR: And do you understand that if you do get into any further trouble then you will not come back to me but you will come back to another judge and you cannot expect that you will get anything else than a lengthy time of imprisonment. And the only other matter that you will have to face now is the fact that Judge Dean will want to know why you have breached his earlier order by this offending. I will leave that to him and he can deal with you as thinks fit in relation to that. Do you understand that?
24. OFFENDER: Yes, Your Honour.
25. HER HONOUR: All right. Are there any other matters?
26. MR CORDY: Yes there is Your Honour. If I can file Your Honour indictment number F13722983.1B, and having filed it, can I seek to amend the CR number to CR 17-00620. And having done all that can I indicate to Your Honour that it is intend that by consent, this matter be remitted back to the Magistrates' Court pursuant to s.168 of the Criminal Procedure Act.
27. And it is submitted that in the circumstances of the sentence that Your Honour has just passed, that Your Honour ought to make an order granting the accused bail in respect of that matter. And the date of the mention for that matter is 9 May 2017.
28. HER HONOUR: Yes, thank you, and there is no problem with that?
29. MS CANNON: No, Your Honour.
30. HER HONOUR: All right. Ms Payne I will just explain all that to you. So, there is still an outstanding matter of criminal damage and that is the damage to Daniel Dicker's car. I am not going to deal with that matter. It is going to go to the Magistrates' Court and your barrister and solicitor can talk to you about what is going to happen with that matter into the future.
31. Because I have effectively let you out of gaol today I am going to put you on bail to appear to answer this charge and you will need to sign a bail form and you will need to appear to answer this charge. Now I am not sure whether this is going to be dealt with in Wangaratta if you are in Geelong.
32. MR CORDY: Shepparton Your Honour.
33. HER HONOUR: Shepparton. If you are in Geelong that is going to be difficult. But you need to talk to your solicitors about that issue. All right.
34. So in the new indictment which I have just been handed all I will do is order that it be transferred to the Magistrates' Court. I do not think I can even list it for mention can I? I would just transfer it to the Magistrates' Court.
35. MR CORDY: Well it has got to be listed because it is a bail condition

36. HER HONOUR: I see.
37. MR CORDY: And the nominal date for mention is 9 May.
38. HER HONOUR: All right. I will list the matter for 9 May 2017 and I will order Ms Payne that you appear to answer your bail at Shepparton Magistrates' Court on 9 May 2017.
39. MR CORDY: Yes, Your Honour.
40. HER HONOUR: Yes, thank you.
41. MS CANNON: Your Honour what I should have done yesterday when the trial was at the stage it was is have asked for Your Honour to grant two appeal cost funds certificates for the two days where we lost the jury. I am not sure if I need to do that now in the circumstances. I have not been able to get a response from my instructor. Can I just flag that if I do need to somehow or other I will come back and mention it?
42. HER HONOUR: Yes. Well, you will need to contact the registrar.
43. MS CANNON: Yes.
44. HER HONOUR: I will be here for another week and a half.
45. MS CANNON: Yes, thank you.
46. HER HONOUR: So I am happy to make that order within the circuit if an application is made.
47. MS CANNON: I have sense it might not be necessary now, but I am not absolutely positive.
48. HER HONOUR: Yes, thank you.
49. MS CANNON: Thank you Your Honour.
50. HER HONOUR: All right. Are there any other matters?
51. MR CORDY: No Your Honour.
52. HER HONOUR: All right. Well look, I think in the circumstances, I would prefer to adjourn until 2.15 on Monday.
53. MR CORDY: As Your Honour pleases.
54. HER HONOUR: So I will adjourn now until 2.15 on Monday.
55. MR CORDY: I will have Mr Boyd-Wilson liaise with Your Honour's associate about what might be listed.
56. HER HONOUR: Yes, thank you. Thank you and Ms Payne, as I said, I do not think you will be allowed out just yet, but I would imagine that would happen sometime during the course of today.
57. OFFENDER: Thank you, Your Honour.
58. HER HONOUR: Yes, thank you. I will adjourn the court until 2.15 Monday