DPP v Loiterton [2026] ACTSC 74

1. Nathan Loiterton, who appears before me for sentence today, is a man for whom it is easy to feel sorry. When not in custody, he is homeless. He reports a number of health issues including epilepsy, encephalitis, and strokes which have caused him brain damage and memory issues. He is a drug user, most recently smoking methamphetamine daily. Like many drug users, he does not believe that his drug use has caused problems in his health or relationships, but his sister, who has provided him with various supports over the years, knows better. She reports that his drug use has impacted on him socially, mentally, physically, and financially.

2. What brings him before the court today is that he is to be sentenced for a number of offences arising out of two separate incidents.

3. The first of those occurred on 4 April 2025. On that day the offender, who was homeless, set fire to toilet rolls inside the men’s bathroom at the Jolimont Centre. ACT Fire and Rescue responded. When they went into the bathroom, they saw thick smoke haze and observed that the fire appeared to be emanating from a locked cubicle. They put out the fire. The offender told them he would start another one, so they tried to remove him from the stall. He became aggressive and refused to leave. Police were therefore called.

4. Police officers went to the men’s bathroom and began speaking to the offender. He refused to come out from the locked stall. The door was removed from its hinges. Police took control of the offender, arrested him, and took him outside.

5. An inspection of the stall revealed that toilet rolls had been set alight causing the plastic casing that holds them to also catch fire. There was fire and smoke damage to the cubicle wall and surrounds. A search of the offender’s bag found four cigarette lighters, and an aerosol can said to be flammable.

6. As a result of what I’ve just described, the offender has been charged with and pleaded guilty to 2 offences, one of doing an act endangering life under section 27(3)(e) of the Crimes Act 1900 (ACT), and the other an offence of damaging property, under section 403(1) of the Criminal Code 2002 (ACT). The maximum penalty for both of those offences is 10 years imprisonment. He has also pleaded guilty to a transfer charge of obstructing a public official, which relates to his refusal to leave the cubicle so that ACT Fire and Rescue personnel could perform their duties.

7. I turn now to the second incident, which occurred on 4 August 2025. Again, the offender was homeless and had set up camp at the Salthouse Community Centre. The person responsible for the management of the centre was a Mr Everett. Mr Everett had asked the offender to move on, on a number of occasions, but the offender did not do so. At about 2:30pm Mr Everett and two other men who were working at the site, approached the offender’s camp. He was asleep. Mr Everett woke him up and said to the offender “listen mate, you have got to move on, you can’t be here”. The offender became agitated and told Mr Everett to “fuck off”.

8. Mr Everett persisted, telling the offender that he was causing issues for clients and work personnel who had to attend to service the premises. The offender’s response was to continue to say “fuck off”.

9. Eventually the offender got out of bed and advanced towards Mr Everett, accusing him of damaging his butane gas cans. He picked up a three pack of blue butane canisters from behind him, separated one of the canisters from the pack and advanced towards Mr Everett saying, “do you know what happens when one of these breaks?”.

10. This caused Mr Everett, sensibly, to retreat. One of the men with Mr Everett called 000. The offender continued advancing towards Mr Everett holding the butane canister. Eventually the offender lunged towards Mr Everett. Mr Everett initially raised his hands in defence but lowered them, opening his palms so as to not appear threatening towards the offender. In response the offender lunged towards Mr Everett once again, throwing the butane canister that was in his hand at Mr Everett’s head. Despite trying to dodge the canister, it struck him in the face under the left eye, leaving a small red abrasion. Mr Everett pushed the offender away and then backed away himself.

11. The offender retrieved the butane canister. It had split when it hit the ground and so gas was escaping. The offender bent down and set the canister alight. He then retrieved another butane can and once again started advancing towards Mr Everett. Mr Everett told him that police had been contacted. The offender collected the bag and left. He was arrested later that evening.

12. The physical injuries to Mr Everett, whilst they amounted to actual bodily harm, do not appear to have been terribly significant, and they have completely resolved. Mr Everett provided a victim impact statement. He spoke about his increased concerns and anxiety, and things he has had to do as a result of the attack upon him. Yet, to his great credit, he also expresses compassion for the offender saying that he wants “the best outcomes for Nathan and hope that he receives the care that he needs”.

13. As a result of the events I have just described, the offender faced two more charges, assault occasioning actual bodily harm, an offence under section 24(1) Crimes Act, and an offence of lighting an unauthorised fire under section 125(1) of the Emergencies Act 2004 (ACT). The maximum penalty for the first of those offences is five years imprisonment, and for the second six months imprisonment. The offender has pleaded to those offences as well.

14. What I know about the offender largely comes from two reports from ACT Corrective Services, being an ICO assessment report, which found him unsuitable for an ICO, and a court duty report.

15. It is apparent that the offender’s background presented some challenges. His parents separated when he was very young and he was raised by his mother and stepfather who were both alcoholics. He went to live with his biological father when he was seven, although returned back to live with his mother, describing to the author of the duty report that the living arrangements with his father were “bad”. He has no ongoing contact with him. He does not have a close relationship with his mother either, and he doesn’t even know where she lives at the moment. He has siblings and his sister has tried to be a positive influence on him, but their relationship has been affected by the different life choices they have made. Nevertheless, she remains supportive of him and was in court during the sentencing proceedings.

16. The offender described struggling at school saying that he was “a menace” and was expelled from several schools. He did complete year 10 and has had limited employment, although he last worked approximately 15 years ago and has been in receipt of a disability support pension since then.

17. Before he was remanded in custody after his arrest on 4 August 2025, he was homeless for about 2 and a half years, spending time in homeless shelters but mainly sleeping on the streets. He has no accommodation plans once he is released from custody.

18. Almost all his friends and acquaintances either use illicit substances or are otherwise involved the criminal justice system. He has a history of drug taking but his use of methamphetamine is particularly problematic. It has led to his ongoing problems with his health and homelessness. Although there was no medical evidence before me, he told Corrective Services Officers that he suffers from epilepsy, for which he is prescribed antiseizure medication, encephalitis, and that he has suffered a stroke in the past. Each of these conditions have contributed to him having a poor memory. He has been diagnosed with anxiety and depression in the past but considered that his mental health was okay when interviewed for the purposes of the court duty report in November last year.

19. The offender has a criminal history, both in the ACT and in New South Wales. That includes offences of assault, drug use, and resisting or assaulting officers in the execution of their duty. On the other hand, there are substantial gaps where the offender has managed to remain offence free for some time.

20. Under “attitude to current offences”, the ICO assessment report notes that his “overall apparent presentation regarding the offences were one of confusion and uncertainty about what had occurred”. It does not appear that he has any great insight to his offending and the causes of it.

21. Mr Ager, who appears for the offender, disavowed any reliance on the De La Rosa (DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1) or Bugmy (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) principles.

22. I have to assess the objective gravity of the offender’s conduct. The bathroom where the offender lit the fire was underneath the commercial kitchen of a hotel with gas and electric fittings, although there is no suggestion that the offender either knew that, or that the fire that he lit came anywhere near causing damage to that kitchen. The fire itself appears to have been quite a small one, but the risk that it could have spread, and spread widely, was of course there.

23. There was no evidence as to the cost of repairing the damage the fire caused, but there was clearly some damage which would have to be rectified.

24. As far as obstructing the officers from Fire and Rescue is concerned, by the time the fire was out the offender was more of a nuisance than anything else, but his actions in refusing to open the cubicle door meant that the officers were prevented from dealing with the consequences of the fire for some time.

25. Turning now to the second series of offences, I have already mentioned that Mr Everett did not suffer any lasting damage and the injury appears to have been quite a minor one, although the attack upon him has made him more apprehensive than he has been in the past.

26. The prosecution played a video recording of the unauthorised fire which the offender lit. It was relatively small, the butane canister was on a non-flammable surface, and there was little risk of the fire spreading.

27. None of the offences appears to have been premeditated or planned to any great degree. Having cigarette lighters in your possession is very normal behaviour for a homeless person who smokes, and the thing which was lit was toilet paper from the toilet cubicle. The “flammable aerosol can” could have been insect repellent or something similar. The later offences were prompted by Mr Everett’s quite justifiable attempts to get the offender to move on from where he was camped and so they were not planned by the offender in any way.

28. The offender pleaded guilty to all offences at a relatively early stage, and so the sentences I impose upon him will be approximately 25% less than they would otherwise have been.

29. It is important that the offender is separately punished for his separate acts of criminality. That said however, there is a degree of overlap regarding the offences of performing an act endangering life and damaging property as they both arose from the same act, namely, setting fire to the toilet rolls. The principle of totality applies too, so that there will be a degree of concurrency between the sentences for the various offences.

30. Whilst there are some aspects of the offender’s background which suggest he should not be made example of through the imposition of a sentence designed to deter others from conduct of this kind, there is nothing in the material before me to suggest that personal deterrence should be ignored.

31. Mr Ager on behalf of the offender conceded that a sentence of imprisonment was required but suggested that that sentence could be backdated, and the length of the sentence could be “close to” the time the offender has spent in custody awaiting sentence. He submitted that an overall sentence of less than 12 months would be appropriate, and that the sentence should be partially suspended.

32. It is appropriate the that the overall sentence commence on 21 July 2025 to account for the offender’s presentence custody.

33. Having followed the requirements of the High Court in Pearce v the Queen [1998] HCA 57; 194 CLR 610 by determining appropriate sentences for the individual offending, and then considering issues of concurrence and accumulation, I impose sentence as follows.

Orders

34. The orders of the Court are: (1) For the offence of obstructing a territory official (CAN 3784/2025), the offender is convicted and a term of imprisonment for four months to date from 21 July 2025 and expire 20 November 2025 is imposed. (2) For assault occasioning actual bodily harm (CAN 8505/2025), the offender is convicted and a term of imprisonment for four months to date from 21 September 2025 and to expire 20 January 2026 is imposed. (3) For the offence of damaging property (CAN 3786/2025), the offender is convicted and a term of imprisonment for four months to date from 21 November 2025 to expire 20 March 2026 is imposed. (4) For the offence of committing an act endangering life (CAN 3785/2025), the offender is convicted and a term of imprisonment for nine months, to date from 21 January 2026 and to expire 20 October 2026 is imposed. (5) For the offence of lighting an unauthorised fire (CAN 8506/2025), the offender is convicted and a term of imprisonment for one month to date from 21 July 2025 to expire 20 August 2025 is imposed. (6) The total period of imprisonment of 15 months, commencing on 21 July 2025 and ending on 20 October 2026 is to be suspended after 9 months, from 20 April 2026 upon the offender entering into an undertaking to comply with his Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 6 months and one day with the core conditions only.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman. Associate: Date: