The Queen v Campbell [2015] VSC 181

2 At about 12.43am on Friday 20 September 2013 a fire lit by you occurred at 1/3 Deer Street, Deer Park, which was part of a block of units, thus exposing the area to risk. Two people were killed in that fire. They were Genine Brenda Ballantine and her partner Steven Peter White. They were found dead with their pet Jack Russell dog inside the premises. Two other people who lived there, Steven Salisbury and Paul Mayne, had been at home at the time of the fire but escaped.

3 You lit the fire apparently believing no-one was at the premises. You were hoping that by destroying the premises of Mr White, not only would he be severely disadvantaged but Ms Ballantine would be forced to resume her relationship with you in order to have somewhere to live. Your counsel has described your relationship with her as "pivotal" to understanding why you did what you did.

4 The deceased woman, Ms Ballantine, was 46 years of age and was your estranged wife. You and she had begun a relationship in around 1994 and married in Warrnambool on 19 January 2009. Eight months later, the child with whom Ms Ballantine was pregnant was stillborn.

5 Your relationship with Ms Ballantine was marred by drug and alcohol abuse and repeated incidents of family violence. Between 6 November 1995 and 7 October 2011 you and Ms Ballantine were subject to thirteen family violence intervention orders. You were the respondent on eleven occasions and the aggrieved family member on two occasions.

6 You have been convicted for breaches of intervention orders or contraventions of family violence orders on three occasions and you were convicted for making a threat to kill Ms Ballantine, assaulting her and damaging her property in August 1996. You were also convicted for criminally damaging Ms Ballantine's father's property in 2004. I will return to the detail of your previous convictions.

7 In about January 2013, Ms Ballantine left you and began her relationship with Steven White. He was also 46 years of age. They lived at the premises Unit 1/3 Deer Street, Deer Park. That was a property leased to Mr White from the Department of Human Services. Ms Ballantine's relationship with Mr White proved to be almost as unstable and as abusive as that which she had experienced with you. In April 2013 she left Mr White and returned to live with you. However, in August 2013 she again left you and resumed the relationship with Mr White.

8 When Ms Ballantine was living with Mr White, on two occasions you went to the unit and on each occasion broke a window. On the first occasion, after arguing with Mr White, you broke a panel in the lounge room window. On the second occasion, in the first week of September 2013 you went to the unit with Melinda Buchanan. You met Melinda Buchanan, who was a friend of Ms Ballantine, during the period when Ms Ballantine had returned to live with you between April and August 2013. Ms Buchanan had also at one time been in a relationship with Mr White. Ms Buchanan says she was of the belief that they were going to the unit to get Ms Ballantine out and get her into drug rehabilitation for her heroin habit.

9 However, once they arrived Ms Buchanan said you armed yourself with a hammer and went to the unit, leaving her in the car. She says when you returned to the car, you told her you threw the hammer through the kitchen window. Mr Mayne and Mr Salisbury were at home at the time of this incident. You told Ms Buchanan that you had smashed the lounge room window on a previous occasion.

10 In addition to going to the unit at Deer Street, your telephone records disclose that between 6 September 1013 and 20 September 2013 you had telephoned Mr White some 46 times and texted him 23 times, although no reliance seems to be placed on the contents of those calls or text messages.

11 On Thursday 19 September 2013 at around 8pm, Ms Buchanan saw Mr White asleep on a bench near the Millennium Medical Centre in the Footscray Mall. Ms Buchanan had also been told that Ms Ballantine had left Mr White on the on the previous Friday because of his violence. On 19 September 2013, Ms Buchanan telephoned you at 7.38pm, 7.49pm and 7.57pm and told you about having seen Mr White asleep at the Footscray Mall and about Ms Ballantine having left the relationship and the unit.

12 Paul Mayne and Steven Salisbury were at home at the unit from around 5pm on 19 September 2013. Mr Salisbury went to bed with a headache at around 5.30 to 6.30pm and Mr Mayne stayed up watching television. He was awake when Mr White and Ms Ballantine got in and he then went to bed. He was awoken with the fire alarm going and Mr White yelling, "The house is on fire, get out." Mr Mayne woke up Mr Salisbury and he then went out of the bedroom and saw Mr White and Ms Ballantine. The heat was so extreme all he could do was retreat back to the bedroom. Mr Salisbury says he could hear Mr White and Ms Ballantine yelling out to each other, trying to find each other and screaming. Mr Salisbury managed to break a bedroom window with a suitcase. The two men escaped.

13 On Friday 20 September 2013, emergency services telecommunications received the first report of the fire at 12.43 am, and the Metropolitan Fire Brigade attended the scene six minutes later at 12.49 am. When they arrived, the unit was completely engulfed in fire. When the property could eventually be searched, Ms Ballantine, and Mr White and their dog were all found dead in the master bedroom of the unit.

14 Amongst the many calls to the emergency telecommunications about the fire, there was one from a female caller which was received at about 1.20 am. The caller refused to identify herself to the operator but said that she had received a message that the unit was on fire. The caller told the operator that she previously lived at the address and said that a man named Steve lived there with a woman called Genine, but that Genine may have left the property "yesterday". The caller said the couple had a Jack Russell dog called Roscoe. Police later identified this caller as Melinda Buchanan. Ms Buchanan later made a statement to police about your involvement in starting the fire.

15 The Pathologist, Dr Kate Strachan, performed autopsies on the bodies of Ms Ballantine and Mr White on 24 September 2013 at the Coronial Services Centre, Southbank. In each case the cause of death was the effects of fire.

16 Police spoke to Melinda Buchanan on 21 September 2013 and she told police that she received a call around 1.20 am on 20 September 2013 from you and that you said to her, "I torched that place" or, "I torched Deer Park". She confirmed that after receiving that call, she had called emergency services telecommunications.

17 After a very significant delay of more than a year, you were interviewed by police about these matters on 9 October 2014. You told them that you had been in a relationship with Ms Ballantine since 1994 and you had married in 2008 in Warrnambool. You said that during the relationship you had both abused drugs. You told police about five and a half months before the fire, approximately April 2013, Ms Ballantine had been living with you but in about August 2013 she had suddenly left. You said you spoke to her about two weeks after she left you and she told you she had returned to live with Mr White. You said that during

Ms Ballantine's relationship with Mr White there had been abusive phone calls back and forth between yourself and Mr White. You also said that you had seen

Ms Ballantine injured after having been assaulted by Mr White and this caused you to take her back and allow her to live with you in April 2013. During the interview you showed police a photograph of Ms Ballantine's injuries apparently inflicted by Mr White.

18 You said between Ms Ballantine having left you in August 2013 and the fire on 20 September 2013, you had only spoken to her once on the telephone and during that call you overheard Mr White punch her. You said that when you spoke to

Mr White, Mr White abused you. You said that you went to the unit on one occasion after you found out by chance that Ms Ballantine was living there. You said

Mr White was there mouthing off, as you put it, and on that occasion you had kicked through the lounge window. You said you only went to the unit on one other occasion when you went to the unit to try and talk to Ms Ballantine.

19 You said when Ms Ballantine again left you in August 2013, Melinda Buchanan had told you she was back with Mr White. You said you knew Ms Buchanan as a friend of Ms Ballantine. You said that Ms Buchanan had rung you and told you that

Ms Ballantine had left Mr White. You said after this you had found out about the fire through a friend, Anthony Cribben, about a week or so later and that you had then rung Ms Ballantine's son Damien who had confirmed what happened. You claimed you were most likely working on the night of the fire.

20 Having become aware of the deaths of Ms Ballantine and Mr White on the day after the fire, you obviously decided you would not willingly disclose your involvement to police when they interviewed you on 9 October 2014, more than a year later. After more than 900 questions and answers police effectively confronted you with your telephone records which disclosed that at 12.45 am on 20 September 2013 you had made a call to your friend Anthony Cribben. The call was made in the vicinity of Deer Street, Deer Park. Your records also showed you had called Melinda Buchanan at 1.19 am and again at 1.49 am on 20 September 2013. Police also put to you the allegations made by Ms Buchanan in her statement, about attending the unit when you threw a hammer through the window.

21 Confronted with this information and assured by police that they allowed for the likelihood that this fire was not lit by you with the intention that anyone be hurt, you then admitted that you had lit the fire.

22 You said that Melinda Buchanan had told you about Mr White being apparently asleep in the Footscray Mall and Ms Ballantine having supposedly left the property. You said Melinda Buchanan had told you this a couple of hours before you went to the Deer Street unit. You said you thought there was no-one at home and that you knew the window that you had previously smashed in the lounge room was still broken. Using a cigarette lighter, you put your hand through the broken window and ignited the curtain in the lounge. The curtain ignited instantly and then you went home. You said you had done this as a payback to Mr White because he had bashed Ms Ballantine. You told police you wanted to burn down Mr White's house so he would have nowhere to live and to pay him back. That was because, you claimed, that in a phone call between you and Ms Ballantine you heard her being assaulted by Mr White.

23 These offences are, of course, extremely serious. Two people were killed as a result of the fire you lit. As Mr Dann of counsel conceded on your behalf, your actions were extremely dangerous and reckless, particularly bearing in mind that a period of four to five hours passed between you being informed that no-one was in the house and the time that you actually lit the fire. It is bad enough that you lit the fire, but all the more so that you made no effort to ensure that nobody was inside before you ignited the curtain through the window you had broken. Nonetheless the sentence I impose on you is on the basis that you believed the house was empty and that your only desire was cause damage, indeed to destroy Mr White's property.

24 I should deal with one matter specifically. In her submissions the prosecutor referred to these offences being the last act in a relationship of domestic violence. In summary, she submitted the context of domestic violence is an aggravating circumstance. What that means as a result of that, if I accepted her argument, a more severe sentence should be imposed on you. I would note at this stage that, if such a submission was to be made, it should have been the subject of notice and the basis on which the conclusion was contended for set out in the prosecution opening. That did not occur.

25 Further, Ms Hassan did not expand on why, as a matter of law, that was an aggravating circumstance. In my opinion, an aggravating circumstance is something done by an offender in the commission of the offence which makes the offending more serious and attracts a more severe sentence. By and large, what amounts to a circumstance of aggravation is left to the "good sense of sentencing judges".[2] Bearing in mind that your intention was not to harm either of the deceased but to cause damage to the property of Steven White, I am unable to see how the history of the domestic violence, tragic and serious as it was, could be a circumstance of aggravation for these offences and I do not sentence you on that basis.

26 The prosecutor produced four victim impact statements and read three of them to the Court. Those statements came from Brenda McIntyre who is the mother of the deceased man Stephen White; Barry White the father of Stephen White; Paul Mayne and Melinda Buchanan. Ms McIntyre, apart from being devastated by the death of her son, is undergoing is psychological treatment for depression and anxiety and is on a course of medication. The death of her son will affect her for the rest of her life. Mr White is also traumatised by a sense of loss from his son's death and, again, will be for life. Ms Buchanan also suffers to the point of needing medication. Mr Mayne has been significantly traumatised by the fire and his narrow escape from it.

27 These statements reflect the tragedy and continuing impact of this futile loss of life for those who must deal with it for the balance of their lives. I have taken these statements into account in determining the sentence I will impose on you.

28 You have a long criminal history dating back to 1987. There are a large number of offences from more than 20 court appearances. Many of the matters of which you have been convicted are offences of dishonesty and on no previous occasion was a custodial sentence imposed on you. However, other convictions relate, more relevantly, to breaches of intervention orders, to which I referred earlier, the most recent of which was in February 2012. Mr Dann has told me that the breaches do not involve breaches that, in turn, involve actual assaults, although you have assaulted her in the past. The matter at the Moonee Ponds Magistrates' Court of making a threat to kill did involve Ms Ballantine. Further, since this fire I am told by Mr Dann that you have been dealt with for theft of petrol and possession of cannabis with a $1000 fine in the Melbourne Magistrates' Court on 15 April 2014. Overall you have a very poor record that does you little credit.

29 You first pleaded guilty to these matters on 3 February 2013, which the prosecutor accepts was at the earliest opportunity. I also accept that to be true. As always there is a significant value in such a plea because the time, expense and trauma associated with a trial has been avoided. Clearly, for several of the witnesses, such a trial would have been an ordeal. In her submissions, the prosecutor agreed that your plea included an element of remorse.

30 I do accept that you are remorseful for the tragedy that occurred and whilst there was a degree of thought going into your actions, the terrible consequences were clearly unintended by you. I suspect that, apart from the consequences of having to serve a significant sentence of imprisonment, the consequences of what you have done will remain with you for the rest of your life.

31 You are now aged 45 years and raised by your mother as an only child. She has been present at Court during the hearing of the plea on your behalf. As I understand it you never knew your father. You had a very poor relationship with your stepfather and suffered abuse at his hands as did your mother. Your stepfather abused alcohol and drugs. Your mother and he had a child who you refer to as your sister and with whom you maintain contact.

32 Despite the history, at the age of 15 you left home to live with your stepfather, from whom your mother was by then separated. The attraction for you was the freedom to drink alcohol and abuse prescription drugs. Your stepfather also involved you in crime. You had a significantly disadvantaged childhood and upbringing.

33 Unfortunately your education effectively ended in Year 9 but you had managed to maintain a good employment record. Much of your work was driving trucks and in fact you continued in that employment between the fatal fire and your arrest.

34 Mr Dann produced a psychological report from Dr Aaron Cunningham which describes your circumstances, background and mental state. He describes your history as one of instability and trauma. Dr Cunningham describes you as someone suffering from the effects of your significantly under-privileged background and someone who would benefit from continuing assistance. He described your relationship with Ms Ballantine as dependent, despite mutual violence and drug abuse. You have been provided with anti-depressant medication in custody which treats a state of depression which you attribute to what you have done. Dr Cunningham identified your need for ongoing support. His report does not raise any issue about your mental state having any form of connection to the commission of these offences. He does suggest that you have insight into the wrongfulness of what you did. However, as part of your circumstances I take Dr Cunningham's views into account.

35 I am told that you have endeavoured to make reasonably good use of your time spent in custody so far and you have undergone a number of courses for which certificates of completion have been awarded. I am therefore willing to accept that your prospects of rehabilitation are reasonably good.

The offence of arson causing death is a relatively new offence, having been introduced in 1997. 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.

37 Both general and specific deterrence are significant in this case. The community need to understand that the penalties for the kind of very dangerous and tragic conduct that you engaged in are significant. You also must understand those consequences.

38 On your behalf, Mr Dann urged me to take the following matters into account as mitigating factors. Firstly, your plea of guilty and I accept that apart from the practical benefits of that early plea, as I have said, it is symbol of remorse.

39 Secondly, Mr Dann has urged that I consider your co-operation with police. I have already dealt with what occurred in your record of interview. The value of your cooperation must be tempered by the delay between the fire and the interview and the position you initially took, that you were not involved in the fire.

40 The next issue raised was remorse and I have already dealt with that, and indicated that I accept you are remorseful for what has happened.

41 Mr Dann also referred to your prospects of rehabilitation. I have already referred to that to some degree but I would add to what I earlier said that you still have a drug issue to be dealt with. Having commenced to take drugs at the age of 15 by using cannabis, you moved on to amphetamine and continued to use it as well as significantly large alcohol consumption. Your use of those drugs was described by Dr Cunningham as chronic. Much will therefore depend on your ability to restrain or avoid those habits when you are finally released. Your plan is to resume working when that happens.

42 The law requires that after I sentence you on the first charge, you be sentenced as a serious arson offender on the second charge. I direct that be noted on the record of the Court. The prosecution did not seek a disproportionate sentence under the relevant provisions. That is appropriate. Though two people were killed, they died as a result of a single act on your behalf.

43 However, subject to the principle of totality, it will be necessary for there to be some significant cumulation of the sentence imposed on Charge 2 with the sentence imposed on Charge 1.

44 As I have already observed the maximum penalty for arson causing death is

25 years' imprisonment. That maximum penalty is five years more than the maximum penalty for manslaughter and is a signal of the seriousness with which the parliament and community regard this offence reflecting the intrinsic danger of the offence.

45 On Charge 1, you will be sentenced to be imprisoned for a period of ten years. On Charge 2 you will also be sentenced to be imprisoned for a period of ten years.

I direct that three years of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1. The total effective sentence is therefore thirteen years. I fix a period of ten years to be served by you before you become eligible for release on parole.

46 I have already pronounced the forensic sample order pursuant to s 464 of the Crimes Act 1958.

47 I declare that your pre-sentence detention not including today is 204 days and direct that be noted as time already served.

48 Pursuant to s 6AAA of the Sentencing Act 1991, I am required to declare the sentence I would have imposed on you had you not pleaded guilty to these charges. That sentence would have been a total effective sentence of sixteen years with a minimum to be served before eligibility for release on parole of thirteen years.

[1] The Crimes Act 1958 s 197A.

[2] Per Brooking J in R v England (1999) VSCA 95 at para [35].

[3] [2004] VSC 207 at [28].