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Parties: Director of Public Prosecutions (Prosecution) Jaidyn Scott Death (Offender) Representation: Counsel E Knaggs (ACT DPP) S Lynch (Offender) Solicitors ACT Director of Public Prosecutions (Prosecution) Aboriginal Legal Service (NSW/ACT) (Offender) File Number: SCC 342 of 2024 SCC 362 of 2024 McWILLIAM J:

1. Jaidyn Death is before the Court for sentence, following entering a plea of guilty to the following offences: (a) one count of arson, contrary to s 404(1) of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 6522/2024); and (b) one count of possession of a prohibited thing as a detainee, contrary to s 82(1) of the Corrections Management Act 2007 (ACT) (CM Act) (CAN 6826/2024).

2. The maximum sentence for arson is a fine of $240,000, 15 years’ imprisonment, or both. The maximum sentence for the possession offence is a fine of $8,000, 6 months’ imprisonment, or both.

3. The conduct relates to one day, 9 June 2024. On that day, the offender had been arrested for a different reason. He was being held in a cell at the Australian Capital Territory Regional Watch House (Watch House). For reasons explained below, he became agitated and pulled out a cigarette lighter (a prohibited thing in the cell). He lit a small quantity of toilet paper in his cell. The fire was extinguished quickly with a fire extinguisher, used by staff at the Watch House. The total cost of repairing the damage to the cell wall was $2,267.57. The fire extinguisher also had to be replaced, at a cost of $802.22. These costs were borne by the Australian Federal Police (effectively, the community).

Court’s sentencing task

4. The task of the Court is to sentence the offender by reference to the sentencing objectives and mandatory relevant considerations set out in ss 7 and 33 respectively of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

5. The Court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. The application of that principle means that in imposing a sentence which balances the need for denunciation, punishment, and general and specific deterrence with the need to support and promote an offender’s rehabilitation, the sentence that is just and appropriate is one that is uniquely crafted for that individual offender. Those considerations have been taken into account in the reasoning that follows.

6. Of significance for the offences under consideration here, a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].

7. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. Here, it was accepted that the gravity of the offending meant that no sentence other than a term of imprisonment was appropriate.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

8. The requirement to consider the nature and circumstances of the offence proceeds upon a number of established principles.

Applicable principles

9. The court assesses the objective seriousness of the conduct in question as part of an overall assessment of where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious, taking into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. Within that assessment, the sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

10. Evaluating the nature and circumstances of the offence is an “objective” task, in the sense that the court determines the seriousness “wholly by reference to the nature of the offending”, and not matters personal to the offender: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

Arson

11. Arson is an offence of great gravity and the need for deterrence must generally be given substantial weight: R v Relph [2002] ACTCA 6 at [26]; R v Booth [2004] ACTCA 21 at [26].

12. Features which inform the objective seriousness of arson are the extent of the damage caused, the potential risk of injury to other people, possible spread of the fire, the offender's motive and the degree of planning and pre-meditation.

13. These considerations are drawn from cases such as: R v Elzakhem [2008] NSWCCA 31 at [45], Porter v The Queen [2008] NSWCCA 145 at [56] and R v Baker [2000] NSWCCA 85 at [16]. The prosecution relied upon a more detailed list of factors summarised by Refshauge J in R v Wrigley [2015] ACTSC 114 at [34] which is broadly consistent with the features identified above.

14. Such lists are not a checklist, the absence of any of which reduces the objective seriousness of the offence: DPP v Moala (No 3) [2023] ACTSC 306 per McCallum CJ at [24]. Their use lies more in explaining factors that have been considered as bearing on the assessment and whether the seriousness of an offence is aggravated by that factor.

15. Here, the extent of the damage caused was small. There was no pre-meditation (that is, there was no suggestion that the offender had the lighter in his possession for the purpose of starting a fire) and the conduct was not for financial gain. There was potential risk of injury to staff at the Watch House as well as to the offender himself, although that risk was also low given what was lit was a small amount of toilet paper and no accelerant was used. It was apparent from the CCTV footage of the incident that the fire started to burn itself out before the Watch House staff entered the cell. The motive appears to have been that the offender was trying to get the attention of those at the Watch House, who had initially communicated with the offender over a two-way intercom but then stopped responding to him in the cell. Although the offence itself was serious, the conduct of the offender falls at the low end of the offence.

Possession

16. The possession offence was significantly less serious. The purpose for having the lighter arose out of the offender being a smoker. The item was simply in his pocket when he was taken into custody, which occurred on the day of the offence (that is, the length of time the item was possessed was short). There was no pre-meditation. The court was informed that the offender had earlier submitted to a search and it was simply that the lighter had not been detected.

Plea of guilty

17. The court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.

18. The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act. Some of those matters are addressed separately earlier in these reasons, such as the seriousness of the offence.

19. As discussed in cases such as Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49], utilitarian value is a primary consideration, as seen through: (a) section 35(2)(b) of the Sentencing Act, which requires the Court to take into account when the offender pleaded guilty, or indicated an intention to plead guilty; and (b) section 35(5) of the Sentencing Act, which provides that the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the Court may impose.

20. While the discretion under s 35 of the Sentencing Act remains unfettered, a principled approach to its exercise enhances consistency and a degree of predictability, which in turn furthers the interests and administration of justice through the ability of legal practitioners to reliably advise their clients and the confidence of the community arising from that consistency.

21. Here, the plea of guilty was indicated early and was entered prior to committal. The utilitarian value of the plea is high. However, the prosecution has submitted that the case against the offender in respect of each offence was “overwhelmingly strong” such that s 35(4) of the Sentencing Act applies. That section provides that the Court: ...must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.

22. In that regard, the following principles apply: (a) If the Court considers the prosecution’s case was overwhelmingly strong, s 35(4) of the Sentencing Act is enlivened, although this does not preclude the giving of a limited discount for the guilty plea, nor does it preclude a discount for other factors: R v Newby [2022] ACTCA 20; 367 FLR 122 (Newby) at [49]. (b) If the Court does not form the view that the case was “overwhelmingly” strong, the strength of the prosecution case becomes irrelevant to the exercise of the Court’s discretion in applying any discount for a plea of guilty: Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 at [47]. (c) Overwhelming means (Newby at [31]): “so great as to render opposition useless”. In context, it suggests that an acquittal is realistically unlikely and calls for “a practical assessment of the reality of the situations”. It does not mean “so high a hurdle that it can never be met”. (d) Where the prosecution argues for the application of s 35(4) of the Sentencing Act, or it is the subject of a specific submission, the Court is required to address the issue and give a clear and express explanation of the reasons for the conclusion expressed: Newby at [39]-[43]. (e) In assessing whether the strength of the case was overwhelming, the Court may take into account admissions, as they form part of the evidence upon which an assessment of the prosecution case must be made: R v Snowden [2022] ACTSC 186 (Snowden) at [44], citing R v Garay (No 4) [2022] ACTSC 138 at [114]. (f) If the Court finds that the prosecution’s case was overwhelmingly strong, the Court will be required to grapple with what constitutes a “significant reduction”, which may vary from case to case. It may be relevant to consider the significance of a reduction by reference to the percentage by which the sentence is to be reduced, or, where the head sentence is a long one, the period of the reduction: Snowden at [47], cited in DPP v Jesse Draper (a pseudonym) [2023] ACTSC 109 (Jesse Draper) at [35]. (g) Although the making of admissions may impact upon the conclusion reached as to whether a particular case is overwhelming, they may also separately be taken into account in assessing the offender’s willingness to facilitate the course of justice, which reflects upon his remorse, contrition and likelihood of reoffending: Snowden at [48].

23. The elements in question here are set out in s 404(1) of the Criminal Code: 404 Arson (1) A person commits an offence if the person— (a) causes damage to a building or vehicle by fire or explosive; and (b) intends to cause, or is reckless about causing, damage to that or any other building or vehicle.

24. A building is defined to include part of a building: s 404(4) of the Criminal Code. As to intention, a person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events: s 18(2) of the Criminal Code.

25. The offender submitted that there would have been a factual contest about the offender’s state of mind, and whether he was reckless about causing damage to the cell building so that it could not be said the case was overwhelming. However, the CCTV footage demonstrates an intentional lighting of the toilet paper and it is clear that the toilet paper is touching the wall of the cell. Having observed the fire being lit, the offender then steps away to let the fire burn. He lights a cigarette and waits for the officers on duty at the Watch House to attend the cell in which he is located. I do not consider there is any room for doubt about the offender’s knowledge that fire that is left to burn next to a wall will in the ordinary course of events cause damage to the wall. I therefore accept the prosecution’s argument that the case against the offender in respect of the arson offence was overwhelming. A discount of 8% will be applied to the plea of guilty on the arson offence.

26. In respect of the possession offence, I do not consider there is a real likelihood that a sentence of imprisonment will be imposed and accordingly, s 35 of the Sentencing Act does not apply.

Subjective Circumstances of the offending (s 33(1)(m) of the Sentencing Act)

27. Pre-sentence reports dated 27 November 2024 and 15 January 2025 were before the Court. They included an assessment and supplementary assessment for an intensive correction order. I accept what has been reported in them without repeating their contents extensively. The court must strike a balance between outlining the subjective circumstances that impact on the offender to ensure transparency with a view to giving the public confidence in the sentence imposed, while also preserving the offender’s privacy in relation to his health and background. He is a 26-year-old First Nations man with a difficult upbringing, an absent father, behavioural issues and periods of transient living between the houses of family members and refuges. Unsurprisingly, this led to drug and alcohol use since his teenage years and numerous interactions with the justice system, primarily resulting in community-based orders to divert him from full-time custody. That these have all had only limited success suggests that the justice system alone cannot tackle the childhood and social disadvantages faced by this offender.

28. The offender was unemployed but does hold qualifications. He has completed year 10 at CIT. He has made efforts to engage in courses and counselling. Most recently this has included the Directions ADAPT Program as well as commencing the EQUIPS Program.

Criminal Antecedents (s 33(1)(m) of the Sentencing Act)

29. The offender committed the offences while subject to good behaviour orders. That is a separate aggravating circumstance: see Kelly v Ashby [2015] ACTSC 346 at [61] and the authority there-cited. A number of the prior good behaviour orders have already been dealt with separately by the Magistrates Court. To the extent that there remain two good behaviour orders that are ongoing until 16 April 2025, given the short period of time, the nature of the offences and the outcome of this sentence, no further action will be taken.

30. The offender was sentenced in the Magistrates Court on 29 November 2024 for family violence offending that occurred on 8 June 2024, the day before the present offences occurred. He has been sentenced to a total effective sentence to a total term of 1 year 2 months and 22 days, with a non-parole period of 9 months. The sentence was also backdated to commence on 8 June 2024. It therefore concludes on 29 August 2025.

31. The consequence is that the offender is deemed to have been serving an “existing sentence” at the time the present offences were committed: s 66(1) of the Sentencing Act.

32. The offender’s criminal history is otherwise lengthy, comprising mainly dishonesty, driving and family violence offences.

33. All of these result in no ability to afford the offender leniency on account of good character.

Remorse

34. There was also no evidence of remorse here.

Pre-Sentence Custody

35. The entirety of the time spent in custody from 9 June 2024 has been made referable to other offending for which the offender was sentenced on 29 November 2024 and accordingly, this consideration has no application.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

36. The prosecution helpfully provided a table of comparable offences. They included R v Rahman [2021] ACTSC 257; R v Beroukas [2021] ACTSC 172; R v Denniss [2021] ACTSC 15; R v Howsan [2020] ACTSC 172; R v Hudson [2019] ACTSC 110; Jesse Draper; R v Winters [2022] ACTSC 42; R v Yeaman (No 2) [2021] ACTSC 287 and R v Dunn [2019] ACTSC 75.

37. I have taken these cases into account to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]. I am also mindful that a number of the cases involved sentences before Part 5.2 the Sentencing Act was amended with regard to offences committed while in custody. Previously, such offences were excluded from permitting the imposition of a non-parole period. The extent to which that matter may have affected the instinctive synthesis undertaken by the judicial officers will not be apparent from the sentences imposed or their sentencing reasons.

38. While I have not endeavoured to dissect each case to work out where the conduct sits in terms of greater or lesser seriousness, by way of impression, the offences dealing with fires lit in cells sit between 8 months and 2 years with the conduct in question here being most comparable with sentences at the lower end of that range, (being mindful that the sentencing range is not limited by the outer-limits of those sentences that have been previously imposed).

39. There was also diversity in the ways in which the sentences were to be served, with many sentences being partially suspended.

Totality

40. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). It is unnecessary to repeat them here.

41. Those principles apply equally to offenders serving an existing sentence: Mill v The Queen (1988) 166 CLR 59 at 66; Choi v The Queen [2007] NSWCCA 150 at [157]. As stated in Grey v The Queen (No 2) [2022] ACTCA 2 at [358] (per Wigney J and McWilliam AJ), “[a] number of appellate courts throughout Australia have noted that the severity of a sentence increases at a greater rate than the linear increase in their length: see Thomas v R [2019] NSWCCA 265 at [37] and the authorities there-cited.” See also Baghdadi v The Queen [2012] NSWCCA 212 at [50], where the non-parole period was significantly reduced, applying R v MAK [2006] NSWCCA 381; 167 A Crim R 159.

42. Principles of totality also apply in setting non-parole periods. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen [1999] HCA 55; 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 610, 620 and 625.

43. A non-parole period must be fixed having regard to all the sentencing purposes of s 7 of the Sentencing Act, the objective seriousness of the offence and the offender's subjective circumstances. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. That reflects the principle that there should be an appropriate relationship between the head sentence and the non-parole period: Lowe at 610.

44. Nevertheless, the non-parole period must be the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe at 615.

45. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period: Taylor v The Queen [2014] ACTCA 9 at [19]. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 536.

The application of s 72 of the Sentencing Act

46. A further matter affecting totality considerations is s 72 of the Sentencing Act. As the offences were committed while the offender was in custody, the primary sentence is to be served consecutively with the existing sentence unless the Court directs otherwise. The rationale behind s 72 was explained in R v Rappel [2019] ACTCA 11 at [24]: The purpose of s 72 of the Crimes (Sentencing) Act is clearly enough to ensure that, ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody. A departure from such a clear statutory statement of a sentencing norm should not lightly be countenanced. Within the jail community, further offending must be seen to carry the consequence of a full sentence being imposed as an almost inevitable outcome, so as to effectively deter further offending, rather than being seen to be subject to an effective discount because of an existing sentence. Those already in custody will then have the strongest of incentives not to transgress further and thereby extend their incarceration, the date of release obviously being of vital importance. If a departure from the statutory norm is considered appropriate in the exercise of the discretion retained to do so, it should be explained so that all concerned, including custodial authorities, those affected by the conduct, and an appeal court, understands why that norm has been departed from.

47. Having had regard to that statement, I consider it appropriate to explain that I will direct that the sentence be made concurrent as to 3 months. The reason for doing so is because requiring the entirety of the sentence to be served cumulatively would, in my view, defeat any current motivation and impetus this offender has to rehabilitate. This offender is presently working towards an application for parole. Taking the opportunity to even apply for parole too far into the future may send him backwards (particularly having regard to his disadvantaged background), and that would not be in the long-term interests of the community. In my view, a small degree of concurrency here would not defeat the purpose of s 72 as set out in Rappel above.

Disposition

48. As will be apparent from the offender’s circumstances, the sentencing options are limited by the offender’s present custodial sentence and non-parole period, which currently does not conclude until 7 March 2025. He was assessed as ineligible for an intensive correction order, and I accept that assessment. Similar issues surrounding the potential for non-compliance arise in respect of suspended sentences. Those circumstances combined with the fact of the existing sentence of imprisonment here make it appropriate to dispose of this matter by way of imposing a further term of imprisonment of 9 months and 5 days (following an 8% discount from 10 months).

49. In respect of the possession offence, it is appropriate to impose a fine with no time to pay. That will allow the offender time to pay off the fine while he is serving his prison sentence: see ss 83 and 84(2) of the CM Act.

50. The imposition of a sentence of imprisonment will cancel the non-parole period for the existing sentence of imprisonment: s 66(3) of the Sentencing Act. Pursuant to s 65-66 of the Sentencing Act, the non-parole period must then be reset. The re-set non-parole period must not be shorter than the current period that has been imposed: s 66(4) of the Sentencing Act. Because supervision and support are required for the offender’s reintegration into the community without re-offending, I have taken into account the previous ratio of the non-parole period which constituted approximately 64% of the head sentence. While the additional sentence will reduce the ratio by a modest amount, the offender will nevertheless spend a longer period in full-time custody, thus complying with the section. I consider that slight adjustment to the ratio to be necessary to give effect to the totality provisions explained above, promote rehabilitation and more specifically, to provide sufficient opportunity for the offender to spend time in the community with that support.

Orders

51. The orders of the Court are: (1) In respect of the offence of arson, contrary to s 404(1) of the Criminal Code 2002 (CAN 6522/2024) the offender is convicted and sentenced to a term of imprisonment of 9 months and 5 days (reduced from 10 months on account of his guilty plea), to commence on 29 May 2025 and conclude on 4 March 2026. (2) In respect of the offence of possession of a prohibited thing as a detainee, contrary to s 82(1) of the Corrections Management Act 2007 (CAN 6826/2024), the offender is convicted and fined $200 with no time to pay. (3) NOTE that, pursuant to s 75 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the offender is subject to an existing sentence imposed on 29 November 2024, of a term of imprisonment for 1 year 2 months and 22 days, backdated to commence on 8 June 2024 and expire on 29 August 2025 (Existing Sentence). (4) FURTHER NOTE, pursuant to s 66(3) of the Sentencing Act, the automatic cancellation of the non-parole period set in respect of the Existing Sentence. (5) Pursuant to s 65(3) of the Sentencing Act, a non-parole period of 1 year and 17 days is set, during which the offender is not eligible to be released on parole, commencing on 8 June 2024 and concluding on 24 June 2025. (6) In respect of offences CAN 12093/2023 and CAN 1429/2024, the Court notes the breach of each good behaviour order imposed and takes no further action.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam Associate: N Gannon Date: 17 February 2025