STATE OF TASMANIA v KIRSTEN JADE DONOGHUE 20 FEBRUARY 2023
COMMENTS ON PASSING SENTENCE BLOW CJ
Ms Donoghue has pleaded guilty to two charges of unlawfully setting fire to property, a charge of burglary, and a charge of stealing. The estimates of the losses caused by the fires in question total $690,000. An accomplice was paid $500 to start the fires. There were two fires, on consecutive nights in December 2021. The victims were a couple named Chris Kline and Rebecca Kline, and a company that they controlled, Concrete Tas Pty Ltd.
In the beginning that company was controlled by two couples – a Mr and Mrs Minehan and Mr and Mrs Kline. At some stage Mrs Minehan left her husband and apparently ceased to be involved in the company. Mr Minehan acquired a new partner, Ms King. The business relationship between Mr Minehan and the Klines deteriorated. On 10 December 2021 they caused him to be removed as a director of the company. It had been named JDM Concrete, but its name was changed to Concrete Tas Pty Ltd.
During December 2021 Ms Donoghue was living with a Mr Booth. She was and is a single mother. A few days before the fires, Mr Booth told her that Ms King had offered him money to burn a truck and cause damage to a storage container. She urged Mr Booth to go along with that arrangement, and said that she would help him.
At about 2.30am on 15 December 2021 she drove Mr Booth in her vehicle to the Klines’ home in Snug. At the request of Ms King, they set fire to a Toyota Hilux vehicle. They arrived with a can of petrol. Mr Booth smashed a window of the vehicle, threw petrol into it, threw in the empty can, lit a lighter, and threw it into the vehicle. He and Ms Donoghue ran back to her vehicle and drove away. The estimated losses from that fire were $80,000 in respect of the vehicle, which was totally destroyed, and $10,000 for its contents, which included a number of tools.
The next morning at about 2.30am Ms Donoghue and Mr Booth drove to the company’s premises in Cambridge with another can of petrol. They went to a storage container there. Mr Booth smashed a window of the container. They entered the container and stole a diesel heater, a welder and a radio. These were placed in Mr Booth’s vehicle. Mr Booth smashed a window of an Izuzu truck, threw petrol into it, threw the empty can in, lit a lighter, and then threw that in. The vehicle burst into flames. The couple ran back to their vehicle and drove away. The fire spread and caused significant damage to the storage container. The loss assessment for that fire comprises $100,000 for the container and $500,000 for its contents.
At 2.44am on that morning Mr Booth sent Ms King a text message saying, “Done”. At 6.24am he sent Ms King another message saying, “Trucks fucked and I grabbed what eva I could but it was still going on when I drove back past it last night lol”. Police officers found the welder and the radio in Mr Booth’s vehicle during a search that afternoon. Mr Booth also had a map of the company’s premises and evidence that he had received $500 from Ms King at 2.43am on the morning of the first fire.
Ms Donoghue was interviewed by police officers on 18 December 2021. She made full admissions. She was arrested, charged, processed and bailed. She pleaded guilty to the charges of unlawfully setting fire to property on her third appearance in the Magistrates Court on 5 July 2022. I am dealing with the burglary and stealing charges under s 385A of the Criminal Code.
Ms Donoghue was 28 years old when she committed these crimes and is now 29. She has a number of minor prior convictions, mostly for driving offences.
I have been provided with a comprehensive report on her by a forensic psychologist. He considers that she presents with symptoms consistent with aspects of complex post-traumatic stress disorder, as well as borderline personality traits. No formal diagnosis has been made. It appears that she was exposed to domestic violence and sexual abuse when she was 9 years old, and multiple instances of violence in her intimate relationships as an adult. However, that psychologist considers that her symptoms did not contribute causally to her offending behaviour.
Ms Donoghue has a long history of alcohol and drug use. She started drinking heavily when she was 13 years old. She began using crystal methamphetamine or Ice very heavily about a year before the fires. She had a reasonable employment history until her use of Ice increased to the point where she stopped going to work.
She did not know the Klines nor the Minehans. She was promised $1,000 for her participation in these crimes but received nothing. She got involved because she wanted the money to buy drugs.
When this matter was previously before me I ordered a home detention assessment report. I had serious concerns as to whether these crimes were too serious for a home detention order but kept my options open by ordering that report. At that time I was told that Ms Donoghue was living with her mother. It now appears that her relationship with her mother broke down and that she left her mother’s home and was homeless at the time of the writing of the assessment report. I was told that she now has temporary accommodation at her father’s home and that she is looking for somewhere to rent. Because of her lack of stable housing she is not an appropriate candidate for a home detention order. The author of that report has also said that she is not considered suitable for a community service order. I would not have required community service unless I had decided that it was appropriate to make a home detention order.
In the circumstances, having regard to the seriousness of these crimes, a prison sentence is inevitable. The only questions are what the head sentence should be and whether there should be a non-parole period. I have been told this afternoon that Ms Donoghue’s daughter, who is 3 years old, is in the care of her mother. That was always going to be the arrangement if she went to prison. I was told that her mother suffers from emphysema and is awaiting surgery for her hands.
It is clear that sending Ms Donoghue to prison will result in a prison experience that will be more difficult for her than for most prisoners, for two reasons; first because she has mental health problems, and second because she will be anxious about her absence from the life of her young child.
Ms Donoghue initially accepted responsibility for her actions. She initially made appropriate statements of remorse. To my surprise, it appears from the home detention assessment report that she tried to minimise her involvement in the starting of the first fire, inconsistently with the facts as put by counsel for the State and not disputed. However she has accepted responsibility by pleading guilty and doing so at an early stage in the Magistrates Court. She has sought help from a clinical psychologist. That psychologist is not the forensic psychologist that I referred to earlier. The forensic psychologist considers that her prospects for rehabilitation are relatively good, providing she takes steps to manage her substance use. He has recommended that she attend drug and alcohol rehabilitation services and that she continue to work with her clinical psychologist.
The home detention assessment report contains a series of recommendations as to what I could order if I make a community correction order. I think it preferable to impose a sentence of imprisonment that makes provision for parole and to leave it to the Parole Board to determine the appropriate arrangements following Ms Donoghue’s release from custody.
There are factors that weigh in favour of some leniency in this case, particularly Ms Donoghue’s co-operation with the police, her taking of responsibility at an early stage, her remorse, the steps that she has taken towards rehabilitation, her early pleas of guilty, and the likely impact of imprisonment on her daughter and herself. However these fires caused enormous damage to commercial assets. Starting them was at an act of great cruelty to the couple who operated the company in question. The only appropriate course is for me to impose a significant sentence of imprisonment. Because of the mitigating circumstances I will impose the shortest possible non-parole period.
Kirsten Jade Donoghue I convict you and sentence you to 3 years’ imprisonment. You will not be eligible for parole until you have served 18 months of this sentence.
I make compensation orders in relation to each of the following – Rebecca Kline, Christopher Kline, Concrete Tas Pty Ltd, QBE Insurance Group Ltd and CHU Underwriting Agencies Pty Ltd – in relation to the loss and damage suffered by each of them. I adjourn the assessment of compensation in respect of each compensation order sine die.