Corda v R

Court of Criminal Appeal (NSW)|2014-10-31|Before: Hoeben CJ, Schmidt J, Hulme J

Judgment 1HOEBEN CJ at CL: I agree with Schmidt J. 2R A HULME J: I agree with Schmidt J. 3SCHMIDT J: The applicant seeks leave to appeal a sentence imposed by Blackmore DCJ in May 2013, after he admitted to paying two young co-offenders to set fire to his neighbours' home. He provided them with the petrol which they used to light a fire inside the house, which they broke into. The resulting blaze totally destroyed the house and almost all of its contents. 4The applicant pleaded guilty in the Local Court to an offence of being an accessory before the fact to aggravated break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW) and to an unrelated drug offence under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). 5He received a 25% discount for his plea and does not appeal the 6 month fixed term sentence imposed for the second offence, which commenced on 27 June 2012, when he went into custody. The applicant was sentenced to a total term of 5 years, 6 months, with a non-parole period of 3 years, 6 months, commencing on 27 December 2012 for the accessory offence. The maximum penalty for that offence was 20 years imprisonment, with a standard non parole-period of 5 years. 6The applicant advanced two grounds of appeal in relation to the sentence imposed for his s 112(2) offence: "1. The sentencing judge erred in that he failed to give proper consideration to the principle of parity, insofar as he failed to adequately consider the penalty imposed on the principal offender Blake O'Connor in passing sentence on the appellant. 2. The sentencing judge erred in finding that the offence was "well and truly above the middle range of objective seriousness".

Ground 2 - the seriousness of the offence 7It is convenient to commence with this ground, which must be considered in light of the evidence and findings on sentence.

The evidence 8The agreed facts tendered on sentence were that the applicant had been in an ongoing dispute with his neighbour, Mr Mark Taylor, who lived on a rural property near Bellingen. Their ongoing dispute involved violence and property damage. It resulted in a number of court matters. Both the applicant and Mr Taylor had enforceable personal violence orders (AVOs) made against the other in the Bellingen Local Court. 9On 29 December 2011, Mr Taylor left his property and went to dinner in Bellingen. On his return at about 10.30pm he found his home engulfed in flames. The back door, which he had left secured, was open. He called for assistance on 000 and was able to salvage two computers, but the house and the rest of its contents were destroyed. He suffered minor burns to his hands. On later examination traces of petrol were found in soil nearby and it was confirmed that the back door had been opened. 10The insurance estimate for the premises was $383,282.91 and Mr Taylor estimated the contents lost to have a value of $85,031. 11A gold coloured Holden utility was seen driving nearby at high speed, when emergency services attended the fire. It was identified as belonging to Blake O'Connor, then aged 18 years, who was driving with an unidentified passenger. On 9 January 2012 he was in custody for unrelated matters. Text messages found on his phone implicated Blake O'Conner and a juvenile, DB, then aged 17 years, in the fire and suggested that the applicant had paid them to light the fire. 12Police investigations, including by lawful interception of mobile and home phones, revealed that Blake O'Connor and DB had knowledge of particular details of the fire. 13DB was later arrested and admitted his involvement in the fire, together with Blake O'Connor. He revealed that the applicant had offered them $1,000 to break in and set the house alight; that he and Blake O'Connor had accepted his offer; and that the applicant had supplied them with petrol and information. They had then gone to the house, forced the back door to gain entry and entered. He also armed himself with a knife. Blake O'Connor had ignited the petrol inside with a cigarette lighter. The applicant paid them $500 each, some weeks later. 14Conversations between DB and the applicant, during which they discussed the offence, were later lawfully recorded. Blake O'Connor was arrested on 22 May 2012, when he made admissions about the offence. 15Blake O'Connor and DB both pleaded guilty to aggravated break enter and destroy property by fire under s 112(2) of the Crimes Act and Blake O'Connor undertook to give evidence against the applicant. On sentence a control order was imposed on DB, which was suspended. Blake O'Connor was sentenced to an intensive correction order for a period of 1 year and 11 months, after receiving a 35% discount for his plea and assistance. 16The applicant gave evidence on his sentencing and also called character evidence. His evidence was that he had been under a lot of stress for years prior to the offence. He had been drinking and smoking about five or six joints of cannabis in an afternoon. He was then cultivating 123 cannabis plants, he said, for his own use. He apologised to his victim, explaining his remorse for the loss of his home and possessions. He said that they had been friends before the breakdown of their relationship, as the result of a dispute over a right of way. He described how the dispute had begun and later escalated, with the result that his consumption of alcohol and drugs also escalated and he had experienced a lot of problems with his family. He said that on the day of the offence his daughter had received a call from DB, one of her friends. He went to assist DB and Blake O'Connor, whose car had broken down. It was then that the offence was discussed. There had been no prior discussion between them about burning down the victim's house.

The cases advanced below 17The applicant's case on sentencing was that the offence was the result of a chance meeting, when he went to assist his co-offenders with a flat tyre. It was then that their mutual dislike of the victim had been discussed and he had suggested lighting the fire. It was he who gave his co-offenders petrol, which he had in his ute for his chainsaw. It was submitted to be relevant on sentence that the offence was unplanned and that the co-offenders had not been overborne or coerced by the applicant. Reference was made to what the co-accused had said in ERISPs and recordings of intercepted conversations between them, part of which, it was submitted, was concocted, in order to suggest that the planning of the offence had been more elaborate than it in fact was. It was also submitted that these recordings showed that the co-accused had no remorse for their offences, which were of significant criminality, assessed to have fallen above the mid-range of seriousness of such offences on their sentencing. 18Both aggravating and mitigating matters were also addressed. In the result it was submitted that questions of parity in sentencing arose to be considered in the applicant's case, as did questions of totality in respect of the drug charge. As to parity it was submitted to be relevant that the assistance which Blake O'Connor had given had been minimal, despite having received a combined discount of 35%. 19The Crown's case was that the applicant's offence was objectively serious and aggravated by the fact that the victim was protected by an AVO order at the time and by the fact that the applicant was then subject to a bond for earlier breach of that AVO. 20As to parity, it was submitted to be relevant that the offences would not have occurred without the applicant's involvement. In the result, given the applicant's age, almost 30 years older than the co-offenders and his relationship with them, it was apparent that his criminality was higher than theirs. It was also submitted that he had taken the opportunity to instigate the offence for which he later paid them, at a time when they were intoxicated and he was able to take advantage of bad feelings between them and the victim, by supplying them with petrol and advice that the victim was away from home. In the result the offence would be found to be above the mid-range of seriousness of such offending.

The sentencing decision 21In sentencing the applicant Blackmore DCJ took the view that the offence was a serious one, involving some degree of planning and an attempt by the applicant to distance himself from the offence, by approaching the co-offenders, at a time when the applicant knew he was not entitled to have any contact with the victim, given the AVO which bound him. He supplied the co-offenders with the means of carrying out the offence and offered them payment. While he believed that no-one would be at home when the fire was lit, he could not control that factor. 22His Honour noted that Blake O'Connor's offence had been found by McLoughlin DCJ to fall above the mid-range of such offences. He said that the seriousness of such offences could be gauged by the applicable maximum penalty and the standard non-parole period, as well as by the maximum penalty applying to the offence which the co-offenders broke into the house to commit, destroy property by fire, which itself carries a maximum penalty of 10 years imprisonment (see s 195 of the Crimes Act). His Honour agreed with the remarks of McLoughlin DCJ when sentencing Blake O'Connor: "Both crimes of this nature are serious and I could not envisage a more premeditated or organised offence. Whilst the idea, encouragement, organisation and the supply of the fuel came from the co-offender Corda, it was this offender and the juvenile co-offender who committed the crime. Corda is many years older and I accept that this offence was one carried out at his direction and for him to reek his own vengeance". 23Blackmore DCJ concluded that the applicant's offence was "an offence well and truly above the middle range of objective seriousness'', the applicant having tried to distance himself from the victim and offence by approaching the co-offenders, knowing he was not entitled to have any contact with the victim, supplying them with the means to carry out the offence and promising them payment. His Honour found that its commission in breach of the AVO was an aggravating factor, as was the fact that at the time the applicant was subject to a s 9 bond, imposed for an earlier breach of the AVO. 24His Honour also considered that the offence involved the commission of a very serious indictable offence and that the damage caused was itself an aggravating factor, as was the fact that it was an offence committed on the home and personal property of a neighbour, for no purpose other than revenge. 25The only possible mitigating factor identified was the offender's perception of harassment and/or provocation, but his Honour rejected that as being a mitigating factor, given the aggravating act that the offence was carried out in breach of the AVO. His Honour also noted that relationship tension such as this and general enmity leading up to an offence do not amount to provocation (see Shaw v R [2008] NSWCCA 58 at [26]). 26His Honour took the view that behaviour by which a member of the public acts outside the law to mete out what he sees as personal vindication had to be strongly deterred, making general deterrence an important part of the sentence imposed on the applicant. He found that was a factor which distinguished the applicant from his co-offenders. He also noted that arson was a difficult crime to detect and that paying someone to commit a crime had long been recognised as placing a crime into a more serious category. This, too, meant that the applicant was not in the same category as the co-offenders. His Honour also had regard to the applicant's long prior record, which disentitled him to any leniency. 27His Honour took into consideration the applicant's personal circumstances, he being a family man, married with two children, in gainful employment. He noted the positive testimonials in evidence and that others had felt under pressure from the victim's behaviour. His Honour accepted that the behaviour explained the offending, but did not mitigate its seriousness. He also took into account evidence of the applicant's alcohol and cannabis use, which he found was likely to have influenced the applicant's decision to commit the offence, which he accepted, was somewhat opportunistic. 28His Honour also took account of the evidence as to the impact of the offence on the offender and his family and his past good behaviour, contributing to the community in various ways. His Honour accepted the applicant's remorse and that he had accepted responsibility for his offence. He found that he was unlikely to commit such an offence again and that he required drug and alcohol counselling, to reduce that possibility. 29His Honour took the view that the co-offenders had each committed offences falling above the middle range of seriousness and that the sentences imposed on the co-offenders were explained by their respective roles and individual circumstances. He found that they had carried out the offence at the applicant's direction, one being a juvenile and the other a very young man, some months older. His Honour found that the applicant was considerably more responsible than the co-offenders and that their offences had only been committed because the applicant wanted it to happen. 30His Honour took the view that had the matter gone to trial a sentence of 8 years imprisonment would have been imposed on the applicant for the two offences for which he was being sentenced. With a 25% discount for his early plea and a finding of special circumstances, the applicant received a total sentence of 5 years, 6 months, with a non-parole period of 3 years, 6 months.

The finding that the offence was "well and truly above the middle of the range of objective seriousness" was correct. 31In my view this finding was correct. 32By his plea the applicant accepted that he was an accessory to the aggravated form of the s 112 offence. An accessory is not necessarily less culpable than his or her co-offenders, and may be more so, especially if the accessory instigates, or plans the offence or pays his co-offenders to commit it (see R v Norman; R v Oliveri [2007] NSWSC 142 at [30]). That was properly found to be the case here. 33Section 346 of the Crimes Act applied to the applicant. It provides: "346 Accessories before the fact-how tried and punished Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not." 34Blackmore DCJ observed that the maximum penalty for the indictable offence which the co-offenders committed at the house, destroy property by fire, was 10 years. Under s 195(2) of the Crimes Act, a person who commits that offence in company is liable to a maximum penalty of 11 years. That was a relevant consideration, because, as Johnson J observed in Porter v R [2008] NSWCCA 145 at [81]: "The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases." 35Circumstances of aggravation are defined in s 105 to include being armed with an offensive weapon or instrument and being in company. At the applicant's instigation, DB and Blake O'Connor broke into the house. DB armed himself with a knife, and he and Blake O'Connor lit the fire which the applicant paid them to light, using the petrol which the applicant had supplied them. The maximum penalty for that offence was, accordingly, 20 years' imprisonment. The standard non-parole period for such a mid-range offence was 5 years. 36The maximum penalty and statutory non-parole periods were two statutory guideposts which his Honour had to consider in this sentencing exercise (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120). Both had to be considered as part of the synthesising exercise which his Honour had to undertake in arriving at the applicant's sentence (see Markarian v R [2005] HCA 25; 228 CLR 357). 37It was submitted for the applicant on appeal, that the fact that the fire had been lit inside the house, rather than outside, added little to the criminality of this offence, because at best it could be argued that by entering the house to light the fire, it made it more likely that the entire house would be damaged, but that this was largely speculative and indeed, debateable and that being armed added little criminality to the offence. These were not submissions advanced on sentencing and if they had been, would have been rejected. 38An analogy was also sought to be drawn with a larceny committed after a break and enter, which, it was submitted, involved an intrusion into the sanctity of a person's home or workplace which was substantial and justified a significantly increased maximum penalty. In the case of this offence, it was submitted, while it could be said that the offence of destroy property by fire may be more serious than a larceny, particularly where the house was completely destroyed, it did not follow that the fact that the house was broken into first, or that the offence was committed in company, substantially increased the offender's criminality. This submission failed to pay necessary attention both to the Parliament's intention in enacting s 112 and to the applicant's actual role in this offending. 39The submissions overlook the seriousness with which the Parliament views offences under s 112, for which it has imposed a maximum penalty of 14 years and in circumstances of aggravation as defined, a maximum penalty of 20 years. Those penalties represent the legislature's assessment of the seriousness of such offences and for this reason, provide a yardstick to which proper attention must be paid in the sentencing exercise (see Elias v The Queen [2013] HCA 31; 48 CLR 483 at [27]). 40The gravamen of a s 112 offence is breaking and entering a dwelling-house or other building and committing a serious indictable offence there, in this case, destruction of property by fire. If there was no breaking and entering, there would be no s 112 offence committed and the offence would be one of arson, which would attract a significantly lower maximum penalty. 41That the Parliament considers a s 112 offence to be a more serious offence than an arson offence under s 195, is reflected in the maximum penalties imposed for the two offences: 14 years and 10 years respectively. In the case of both offences, a higher penalty is imposed in specified circumstances of aggravation, including committing the offence in company. That increases the maximum penalties respectively to 20 years and 11 years. 42 In the case of s 112 offences, other circumstances of aggravation also increase the maximum penalty, including being armed with a knife, as DB here was. 43This statutory scheme thus reflects, contrary to the applicant's case, that the circumstances of aggravation specified in s 105 give rise to the commission of a more serious offence, which attracts a higher maximum penalty. That must properly be taken into account on sentencing. 44Further, where more than one offender is involved in an offence, on sentencing the particular part which the offender played in the commission of the offence must be properly taken into account (see Lowe v The Queen [1984] HCA 46; 154 CLR 606 per Gibbs CJ at 609). That is what Blackmore DCJ here did. 45The objective seriousness of the applicant's offence had to be determined wholly by reference to the nature of his offending, without reference to matters personal to the offender (see Muldrock at [27]). Other relevant aggravating and mitigating factors also, however, had to be taken into account, as a part of the synthesising exercise which his Honour had to undertake, in arriving at the sentence imposed, as s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires. 46Thus his Honour considered what had been agreed that the applicant had done by recruiting and paying his two co-offenders; the fact that the two co-offenders were in company when they committed the offence; what they did in order to break into the house through the back door, which had been closed and secured with a strap, which was to burn through the strap with a lighter in order to gain entry; that DB then armed himself with a knife when they entered and looked around the premises; and that Blake O'Connor then lit the petrol the applicant had provided with a cigarette lighter, before they fled when a ferocious fire immediately broke out. His Honour also took into account the consequences of the offence. 47The nature and extent of the aggravating factors revealed by the evidence also had to be taken into account, particularly when the applicant's moral culpability for his offending was being considered. In oral submissions it was submitted that his Honour erred when he observed: "Judge McLoughlin found that the offence committed by O'Connor: "Above the middle of any scale constructed for such offences". To my mind this is an offence well and truly above the middle range of objective seriousness. It was committed in breach of an AVO which is an aggravating factor on sentence. I note that the offender was also subject to a s 9 bond which it had itself been imposed due to another breach of the AVO. That is another aggravating factor. This offence also involved the commission of a very serious indictable offence." 48It is strictly correct that the commission of the offence in breach of an AVO, while the applicant was subject to a s 9 bond, was not relevant to an assessment of the objective seriousness of the offence, that being a matter personal to the offender. That Blackmore DCJ wrongly took this into account in that assessment ought not to be accepted, however. 49Preceding this passage in his Honour's ex tempore reasons, had been a discussion of the agreed facts which comprised the offence and his Honour's agreement as to McLoughlin DCJ's assessment of its seriousness. He concluded that the applicant's offence was also above the middle of the range of seriousness. He then turned in this passage to relevant aggravating factors, which had to be taken into account in arriving at the sentence. There was no error in that approach. 50Even if, contrary to this conclusion, his Honour had inadvertently taken these aggravating factors into account in assessing the objective seriousness of the applicant's offence, there was no issue that these factors had to be taken into account in the overall sentencing exercise. As discussed in McLaren v Regina [2012] NSWCCA 284, for example at [29], assessing the moral culpability of the offending in question, remains an important task in the sentencing process. 51Further, his Honour's approach in fact, had no adverse effect on the applicant's sentence. Despite the seriousness of the applicant's offence, properly found to be above the mid-range of such offending and his significant moral culpability for his offending, the sentence imposed was only 5 years, 6 months, with a non-parole period of 3 years, 6 months. Given that the maximum penalty for this offence was 20 years and the standard non-parole period 5 years, if the alleged error was in fact committed, it is apparent that the sentence imposed was, in the circumstances, relatively lenient. 52It was also submitted for the applicant that the conclusion that the applicant's offence fell well and truly above the middle range of objective seriousness overstated, to a significant degree, the criminality involved in the applicant's offence. I disagree. 53What is required of a sentencing judge is an assessment of the gravity of the particular offending for which the offender is being sentenced. It is not a question of it not being difficult to imagine offences within that category which may have had a more lasting and significant impact on a victim, although in this case, of course, the result of the applicant's offence was the complete destruction of the victim's home and almost the entirety of its contents. 54Contrary to the applicant's submissions, Blackmore DCJ did not fail to properly consider the objective seriousness of this offence. To the contrary, he gave careful consideration to the evidence which cast light on its gravity, including not only the results of the offence, but the circumstances in which it occurred and the nature of the applicant's involvement. This was an offence conceived and pursued, as his Honour found, entirely for the applicant's purposes. 55As his Honour discussed, not only did the applicant act outside the law, he took steps to recruit his co-offenders, when the opportunity presented itself. They were two young men considerably younger than he, who were intoxicated. He enticed them into committing the offence, by providing them with the petrol in his truck and his offer of payment. Not only did he thereby distance himself from the offence, he avoided the dangers which it posed to his young co-offenders, dangers which those who responded to the fire and Mr Taylor were then exposed. Those matters all support the finding that this was an offence falling above the mid range of seriousness of such offences, as his Honour found. 56In the result the error alleged was not made out and, accordingly, this ground of appeal must be dismissed.

Ground 1 - parity 57In my view the applicant has not established that the unjustifiable disparity he complains about exists. 58As discussed in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [65]: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect [original emphasis]." 59A complaint as to parity accepts that the sentence imposed was otherwise appropriate (see England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [251]). It is for the applicant to demonstrate that the sentence imposed has left him with a justifiable sense of grievance as to the unjustifiable disparity between the sentence imposed upon him and his co-offenders. That does not depend upon the feelings of the person complaining of disparity. It depends on the application of objective criteria (see Green v The Queen; The Queen v Green [2011] HCA 49; 244 CLR 462 at [31] - [32]). 60There are limitations on the operation of the principle in cases where co-offenders' levels of criminality are different, as his Honour correctly here found to be the case. 61In that regard it ought not to be overlooked that age played an important part in these three sentencing exercises. DB was aged 17 years at the time of the offence and so was sentenced in the Children's Court to a 2 year control order, which was suspended. Blake O'Connor was 18, some months older than DB and like the applicant, who was then aged 45 years, was sentenced as an adult. He was sentenced to an intensive correction order for a period of 1 year,11 months. The applicant was sentenced to a total term of 5 years, 6 months, with a non-parole period of 3 years, 6 months. 62The case advanced on appeal rested on the sentence imposed on Blake O'Connor, there being limits to the comparisons which may properly be drawn when a co-offender is dealt with by the Children's Court (see R v Wong [2003] NSWCCA 247 at [35]). 63The applicant acknowledged that there were differences in the objective seriousness of his co-offenders' respective offending, which he accepted justified some differential in the penalties imposed. He submitted, however, that the differences between the sentence imposed upon he and Blake O'Connor were so marked, as to leave him with a justifiable sense of grievance. 64It was submitted to be relevant to consider that while the applicant's objective criminality was increased, because he had paid others to commit the offence to which he was an accessory, he had not set out to find someone to commit the offence, prior to the day it was committed. The idea of burning down the house arose out of a discussion between the offenders, and the applicant's offer to pay them was only part of their motivation for their offences. 65It was also submitted that while there was a difference in the offenders' ages, an 18 year old male would have known that setting fire to someone's house was seriously wrong. The offence was not one of immaturity and relative age should not have given rise to substantial differences in penalty. Nor was the applicant in a position of trust or authority over the co-offenders. In the result the differences between the two head sentences was disproportionate and had to be reduced, in order to do equal justice between these offenders. 66In my view that conclusion is not available. 67The starting point for the sentence imposed on Blake O'Connor was explained by McLoughlin DCJ to have been 3 years. His offence and that of the applicant both carried a maximum penalty of 20 years and a standard non-parole period of 5 years. Blake O'Connor was sentenced to a period of imprisonment of 23 months, to be served by way of an intensive correction order, after a 35% discount for his early plea and assistance and a finding of special circumstances. 68McLoughlin DCJ found his offence to have been serious, premeditated and organised by the applicant, but committed by the co-offenders. He took into account that the offence was carried out for reward, with significant damage resulting, as well as risks to the public at large and to fire and police officers who attended, as well as to Mr Taylor and a guest. Questions of parity and proportionality were considered on sentencing, as well as relevant subjective factors, including Blake O'Connor's record, which was considered to allow him some leniency on sentencing; evidence of psychological counselling for mental health issues, but no mental illness or disorder; his general background and circumstances; positive character references, which attested to his offending being out of character, as well as genuine guilt and remorse and assistance to police. His Honour also took into account, amongst other things, his conclusion that Blake O'Connor had acted in fear of the applicant, in concluding that his sentence should be served by way of intensive correction order. 69As the applicant submitted to Blackmore DCJ on his sentencing, Blake O'Connor's offence involved significant criminality. The sentence imposed upon him by McLoughlin DCJ was thus in the circumstances a very lenient one, a matter which Blackmore DCJ expressly considered. The applicant's case that his offence was less serious than that of Blake O'Connor was properly rejected, for the reasons which Blackmore DCJ explained. 70His Honour expressly took into account the arguments advanced by the applicant in relation to parity and totality. He considered that the reason that the sentences imposed on the co-offenders were considerably below the standard non-parole period could be explained by their individual circumstances. He concluded that the applicant was considerably more responsible for the commission of the offence, which was only committed by the co-offenders, because he wanted it to happen. His Honour also found that the applicant had committed his offence in numerous circumstances of aggravation, which had been identified and had to be taken into account. 71Blackmore DCJ identified the starting point for the applicant's sentence for his two offences, for which he received a 25% discount, to be 8 years. Accordingly, given the 6 month fixed term sentence imposed for the drug offence, it follows that some 7 years, 4 months of this 8 year starting point related to the s 112(2) offence. The sentence imposed after a discount of 25% and a finding of special circumstances was 5 years, 6 months, with a non-parole period of 3 years, 6 months. 72Given that the maximum penalty for this offence, properly found to have fallen above the mid-range of seriousness of such offences, was 20 years, with a standard non-parole period of 5 years, the imposition of a non-parole period of only 3 years, 6 months, can only be explained by his Honour's application of the parity principle. The result was, as I have explained, a lenient sentence, given the gravity of this offending. 73That does not reveal error, but different sentencing outcomes because the offenders' cases were different in relevant respects. 74In determining the applicant's sentence Blackmore DCJ had to pay proper regard to the gravity of the applicant's offence, the evidence of the relevant aggravating and mitigating factors, as well as the maximum penalty for the offence and the standard non parole period. Questions of parity and totality also had to be considered, as did the applicant's personal circumstances, all matters which his Honour expressly took into account. 75The heavier sentence imposed on the applicant properly reflected, as the Crown submitted, the different roles which the offenders had played in this offending, as well as the different findings made about the two offenders. In Blake O'Connor's case, they included his lower level of criminality and his differing subjective circumstances, including his age, being only eight months older than DB; his intoxication and problems with binge drinking; the evidence that he was scared of the applicant, due to his reputation; that he had recently left home and made poor choices of associates; and had since returned to live with his family. Blake O'Connor's sentence also reflected the benefit of the 35% discount he had received for his plea and co-operation. 76Blackmore DCJ properly found on the undisputed evidence, that the offence had been committed at the applicant's direction and solely for his purposes. The applicant was many years older than both DB and Blake O'Connor, who carried out the offence at his instigation, with the petrol he supplied, in return for the payment he made, in order to further his desire for vengeance. While he told his co-offenders that no one was at home, he could not assure that this would be the case, hence the aggravating fact that DB armed himself with a knife, when the co-offenders entered the home. 77The applicant's sentence had to reflect that he had paid others to set fire to his neighbour's home, as part of an ongoing feud which had resulted in AVO orders being made and which he breached. The applicant's offence was objectively considerably more serious than that of his co-offenders, he having, as his Honour found, pursued his feud through others, taking the law into his own hands, while distancing himself and paying others to commit the serious offence he had instigated, which placed those who had to fight the fire at considerable risk. 78There were also serious aggravating factors to be taken into account in sentencing the applicant, which did not apply to the co-offenders, including the applicant's breach of the AVO which bound him, at a time when he was already on a bond for another breach of that AVO. It followed that the need for both personal and general deterrence were also particularly important elements in the sentence imposed on the applicant. 79These matters all demonstrate that this was a case where the disparity in the sentences imposed was justified. Objectively assessed, the disparity in the sentences imposed gives rise to no appearance of injustice. 80In any event, in my view, this is a case where, even if a justifiable sense of grievance were established, the Court's discretion to intervene in the applicant's sentence should not be exercised, given the gravity of his offending and the lenient sentence imposed upon him, for the reasons I have earlier explained. To intervene in this case would be to reduce a lenient sentence to one which would be entirely inadequate for the applicant's offending (see Green at [33]). 81In the result this ground of appeal too must be dismissed.

Orders 82The orders I would accordingly make are leave to appeal be granted but the appeal be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2014

Crimes (Sentencing and Procedure) Act 1999(NSW)

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