Judgment
1BASTEN JA: This application provides another example of the difficulties which can arise in applying the principles articulated by the High Court in The Queen v De Simoni [1981] HCA 31; 147 CLR 383. The relevant principle, as explained by Gibbs CJ (with the agreement of Mason and Murphy JJ) is that a sentencing judge cannot take into account a factor which would constitute an element of a more serious offence than the one with which the offender was charged and of which he was convicted, or to which he has pleaded guilty: at 389. That principle, derived from provisions of the Criminal Code (WA), was said to find support in the general law (as discussed at pp 389-391) and has been consistently applied on that basis in this State. That principle continues to be applied, despite the statutory obligation to take into account aggravating factors which do not constitute elements of the offence: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 21A(2). The justification for that course is the countervailing obligation not to have regard to any aggravating factor if to do so would be contrary to any rule of law, statutory or otherwise: s 21A(4).
2The difficulties which can arise in the application of the De Simoni principle have been discussed on a number of occasions in this Court and need not be revisited here: see McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 at [38]-[39] (Howie J, McClellan CJ at CL and Simpson J agreeing); Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at [46]-[54] (McClellan CJ at CL) and [60]-[72] (RA Hulme J) and Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [135]-[138].
3A particular difficulty arises in the circumstance (not uncommon) in which the conduct which constitutes an element of the offence charged also constitutes an element of a more serious offence. Thus, in De Simoni, the relevant element of the offence was committing a robbery "with actual violence". The violence was constituted by a blow to the back of the head of the victim, which inflicted a wound to the scalp. The Court held that the blow could be taken into account, but not its consequence, to the extent that it involved wounding, because there was a further offence, with a greater punishment, involving the element of wounding, with which the offender was not charged. As explained by Brennan J (in dissent) at 403:
"To omit consideration of the personal violence done to Mrs Scott is to omit consideration of conduct constituting an essential element of the offence to which the respondent had pleaded guilty. The prosecutor's statement of facts did not disclose any use of actual violence or any threat to use actual violence to Mrs Scott other than the blow upon her head .... It was accepted that ... the hitting of Mrs Scott was thus the only actual violence to which that allegation in the indictment related."
4The difficulty in the present case is related, though not identical. The charge under s 198 of the Crimes Act 1900 (NSW) involved the separate allegations that the applicant "intentionally destroyed a number of motor vehicles and a dwelling house", with the further intent "by that destruction to endanger the life of Mr Genetzakis [the victim]". No doubt the circumstances of the fire and its consequences, set out by Blanch J below, might have been sufficient to demonstrate the necessary intent to endanger life; however, the prosecution was entitled to rely, as it did, upon statements made by the applicant (as set out in a statement of facts, accepted by the applicant for the purposes of the sentencing). Accordingly, his Honour was entitled to rely upon that material in describing the conduct constituting the elements of the charge. The aspect which called for caution on the part of the sentencing judge was the element of those statements in which the offender appeared to reveal an intention to kill, rather than merely endanger life. The sentencing judge was not required to ignore that evidence, but he was required to exercise care in taking it into account. It appears that the evidence was taken into account in two ways, namely as material demonstrating a lack of remorse on the part of the applicant and, secondly, as material relevant to the seriousness of the offending conduct.
5During an exchange of abuse with the applicant earlier in the evening preceding the offence, the victim identified a number of premises as being occupied by drug dealers and junkies. Ms Gail Harris who, like the applicant's mother, lived at one of the addresses identified by the victim gave a statement to police which was dealt with by the sentencing judge in the following terms in the judgment on sentence at pp 4-6:
"Ms Gail Harris also spoke to the police about the offender's movements[:] she heard the offender say, about Mr Genigzakis [sic], 'I'm fuckin' sick of the way he talks to the women in this street. He needs a good bashing.'
It was clear that Ms Harris had her suspicions that the offender was responsible for the fire because as soon as she saw him the following morning she said to him, 'What the fuck have you done, Sean?' to which the offender replied, 'I didn't do a good enough job, they're still alive. They shouldn't have been able to get out of the house if the fire had spread like it was supposed to.'
This expression of a complete absence of remorse on the part of the offender has continued. ...
I am satisfied, however, that what the offender meant to convey by those words is that he is sorry for his family, for what he has done to them. ... To his Auntie Gail he said, 'I should have killed him when I had the chance.' He wanted to teach the offender a lesson because of what he did to his family.
The seriousness of the offender's misconduct is obvious. He deliberately placed the bomb in a position where it was next to an LPG fuel tank. It was his intention that the fire would spread in such a way that the people inside the house would not get out alive and even to this day it seems he wishes that he had succeeded. Such criminality, as is obvious, requires harsh, perhaps even a draconian sentence.
[Counsel for the offender] called no evidence, nor did he tender any documents ....
...
[Counsel for the offender] submitted that the offender's motivation was a misplaced sense of grievance. That seems to be the case. ...
Nor was this a spur of the moment decision. The offender would have taken some time to assemble the materials to produce what he described as 'the napalm bomb', all the while having the capacity to reflect on what he was doing. I state the obvious here but it is one thing to destroy the property of someone you are upset with but to want them dead and to set about achieving that is a completely different matter altogether."
6To the extent that the sentencing judge took the statements of intention into account in assessing whether the applicant was entitled to the benefit of a finding of remorse, there was no error. However, to the extent that he took into account an intention to kill in assessing the seriousness of the applicant's conduct, he would appear to have contravened the principle identified in De Simoni. Such an intention would have warranted a charge of attempt to murder, pursuant to ss 28-30 of the Crimes Act. Those, the applicant contended, were more serious offences, with which he had not been charged and to which he had not pleaded. In response, the Director contended that they are different offences, but they are not more serious for the purpose of the De Simoni principle, because they carry the same maximum penalty, namely imprisonment for 25 years.
7In my view that response should be rejected for two reasons. First, as explained by Blanch J, the fact that each of ss 28-30 of the Crimes Act is subject to a standard non-parole period of 10 years, whereas there is no standard non-parole period for s 198, demonstrates that those offences are treated by the legislature as more serious: Sentencing Procedure Act, s 54A and Table to Part 4, Div 1A. Secondly, despite carrying a liability to the same maximum penalty, in terms of moral culpability, an intention to kill is more serious than an intention to endanger life. Accordingly, the former intent would warrant a more severe sentence than the latter.
8Further, the reasoning set out above reveals an important respect in which an offender may be sentenced improperly, absent express identification of the relevant elements of the offence. Apart from the objective circumstances involving the "napalm bomb" the statements by the applicant to the effect that the occupants of the house should not have survived and that he wished they had not, did not necessarily demonstrate that he had an intention to kill the occupants at the time of the offence. Nor was such an intention admitted, either by the plea or by acceptance of the statement of facts. It required a finding beyond reasonable doubt on the part of the sentencing judge. There was no express finding to that effect. Had the issue of whether the applicant in fact had an intent to kill at the time of the offence been expressly addressed, it would have been necessary to decide whether the statements did accurately reflect the intention of the applicant at the time of the offence. That exercise would, in all probability, have alerted the sentencing judge to the fact that he was considering an element of a different and more serious offence, which had not been charged.
9In these circumstances I agree with the orders proposed by Blanch J and with his reasons.
10BLANCH J: The applicant seeks leave to appeal against a sentence imposed by his Honour Judge Berman SC at East Maitland District Court on 22 April 2010. On that day the applicant entered a plea of guilty to intentionally destroying property with intent to endanger life. That offence was committed on 16 September 2009. It is an offence contrary to s198 Crimes Act 1900. It has a maximum penalty of 25 years imprisonment and there is no standard non-parole period. The applicant was sentenced to imprisonment of 14 years to commence on 30 September 2009 and to expire on 29 September 2023 and a non-parole period of ten years and six months was imposed to expire on 29 March 2020.
11The facts as summarised by the judge were that there was a neighbourhood dispute involving the victim Mr Genigzakis and a number of other people in the area. On the evening of 16 September 2009 the victim and his partner were at home watching television when they heard a noise outside which sounded as though someone was opening and closing the doors of unregistered vehicles the victim had on his property. The victim went outside and saw a number of young people and there was a verbal altercation between the victim and those young people. It does not appear the applicant was amongst those young people but he learned about the altercation and during the course of the altercation, the victim accused a number of people in the neighbourhood of dealing in drugs and at one stage said "Everyone in the neighbourhood knows you're fucking drug dealers. Everyone knows that 13 and 17 Brown Street and 19 Burnett Street and the people in McKellar Street are nothing but fucking drug dealers and junkies. Your four houses have held the whole community to ransom." At that stage one of the men called out "We are going to burn your fucking house down" and that led to the Police being called. The Police attended but after speaking to various people they left the area as things seemed to calm down.
12The victim went back inside and was watching television and fell asleep in the lounge room. His partner went to bed in the second storey of the house. Just after midnight the victim was woken by the sound of windows smashing and flames going through the lounge room windows. He saw the lounge room roof was about to collapse. His partner was also woken by the noise and they both ran out of the house past some of the cars parked outside. As they got near one of them, an LPG powered vehicle, the gas cylinder exploded throwing the victim about ten metres. He saw a wall of fire engulfing both his cars and his home.
13Inquiries pointed to the source of the fire being near the right hand side of the motor vehicle which had exploded. The explosion was so forceful that parts of the car were thrown 50 metres away. The victim suffered the loss of his home and four of his vehicles, the financial loss being in excess of half a million dollars.
14The first ground of appeal is "the learned sentencing judge contravened the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383; by sentencing the applicant on the basis that he had an intention that "the people inside the house would not get out alive"."
15This ground of appeal refers to the statement of principle by Gibbs CJ at page 389 of De Simoni:
"... the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence".
16The assertion here is that the sentencing judge was, in fact, sentencing for an offence of attempted murder contrary to either s27, 28, 29 or 30 Crimes Act 1900, any of which offences carries a maximum penalty of 25 years but all of them have a standard non-parole period of ten years pursuant to the Table of standard non-parole periods set out in Division 1A of the Crimes (Sentencing Procedure) Act 1999.
17There are two passages in the ex tempore judgment on sentence of the sentencing judge which might give rise to that interpretation. The first is a statement by his Honour:
"The seriousness of the offender's conduct is obvious. He deliberately placed the bomb in a position where it was next to an LPG fuel tank. It was his intention that the fire would spread in such a way that the people inside the house would not get out alive and even to this day it seems he wishes that he had succeeded. Such criminality, as is obvious, requires harsh, perhaps even a draconian sentence."
18In a second passage in the judgment on sentence his Honour said:
"I state the obvious here but it is one thing to destroy the property of someone you are upset with but to want them dead and to set about achieving that is a completely different matter altogether."
19In the remarks on sentence his Honour referred to an intercepted telephone call where the applicant spoke about placing a napalm bomb in the rear seat of a car next to a gas cylinder and setting fire to it and his Honour concluded that the explosion of the gas cylinder was an unintended consequence. His Honour also referred to the evidence that a neighbour had said to the applicant next morning "What the fuck have you done Sean?" to which the applicant replied "I didn't do a good enough job. They're still alive. They shouldn't have been able to get out of the house if the fire had spread like it was supposed to."
20In dealing with that statement his Honour was clearly dealing with the question of whether or not the applicant had demonstrated remorse for his actions and he concluded that:
"There is no evidence before me that he is in the slightest way sorry for having risked the lives of Mr Genigzakis or his partner and indeed the only evidence before me suggests that he remains disappointed that they are still alive."
21In my view his Honour was justified on the facts of the case in coming to that conclusion about the lack of remorse shown by the applicant. He was bound to consider the issue of remorse in accordance with the accepted sentencing principles and in considering that issue he was entitled to take into account all of the evidence. The question is whether his Honour impermissibly took into account an intention to kill in sentencing for an offence where the assertion was an intention to endanger life.
22In my view the first two passages I have quoted from his Honour's remarks indicate that his Honour was, in fact, taking into account an intention to kill as part of "the seriousness of the offender's misconduct...". The second passage quoted above reinforces this was his Honour's intention in imposing the sentence.
23The Crown points out that the maximum penalty for the s198 offence to which the applicant entered a plea is the same maximum penalty as provided in ss27 to 30. On that basis the Crown argues that his Honour did not infringe the principle in De Simoni because the ss27 to 30 offences are not "more serious" offences.
24In my view that submission by the Crown fails to take account of the impact of standard non-parole periods. In Muldrock v R [2011] HCA 39; 85 ALJR 1154 the High Court said at [25]:
"The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness."
25The Court further went on to say at [27] that in imposing the sentence the sentencing court will be "... mindful of two legislative guideposts: the maximum sentence and the standard non-parole period." The High Court observed at [31]:
"It may be, as the Court of Criminal Appeal observed in Way, that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period. This is the likely outcome of adding the court's awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence."
26In those circumstances in my view the offences under ss27 to 30 which require an intent to kill and which have standard non-parole periods, are "more serious" within the meaning of that term in De Simoni. Accordingly, the challenge made to the sentence imposed here has been made out.
27The question then remains as to whether a less severe sentence is warranted in law. The applicant was born on 19 October 1985 and he was 23 years of age at the time of the offence. He has a criminal history that began in July 2000 when he was 14 years of age. He has been dealt with in the Children's Court on a number of occasions and in 2008 he was sentenced to 18 months imprisonment with a non-parole period of 12 months for offences of assault occasioning actual bodily harm and being armed with intent to commit an indictable offence. That sentence expired in its entirety on 16 July 2009 shortly before the commission of this offence.
28The sentencing judge quite correctly determined there was no indication of remorse by the applicant. His criminal history can only lead to the conclusion that his prospects of rehabilitation are not significant, although an assessment is difficult in a case such as this where a significant gaol term must be imposed. I also agree with the assessment of the sentencing judge that the offence is a serious one, even leaving aside any finding of intention to kill. I also agree with the sentencing judge that the applicant is entitled to a full 25 per cent discount for the plea of guilty.
29Taking those matters into account, I believe the appropriate sentence is one of nine years non-parole period with a balance of term of three years.
30I propose the following orders:
(1) Grant leave to appeal against the sentence.
(2) Quash the sentence and non-parole period imposed in the District Court.
(3) Sentence the applicant to a non-parole period of nine years with a balance of term of three years to date from 30 September 2009.
(4) He will be eligible for release to parole on 29 September 2018.
31BEECH-JONES J: I agree with Blanch J.