Ganon v The Queen [2018] VSCA 110

2 On 31 August 2017, the applicant pleaded guilty in the County Court to six charges of intentionally causing a bushfire, one charge of possessing a drug of dependence, one charge of handling stolen goods, one charge of committing an indictable offence while on bail, one charge of resisting an emergency worker, one charge of unlicensed driving and one charge of using an unregistered motor vehicle.

3 Following a plea hearing, on 14 September 2017, the applicant was sentenced as follows:

Intentionally causing a bushfire [s 201A of the Crimes Act 1958]

Intentionally causing a bushfire [s 201A of the Crimes Act 1958]

Intentionally causing a bushfire [s 201A of the Crimes Act 1958]

Intentionally causing a bushfire [s 201A of the Crimes Act 1958]

Intentionally causing a bushfire [s 201A of the Crimes Act 1958]

Intentionally causing a bushfire [s 201A of the Crimes Act 1958]

Possess drug of dependence [s 73(1) of the Drugs Poisons Controlled Substances Act 1981]

[s 88 of the Crimes Act 1958]

[s 30B of the Bail Act 1977]

[s 51(2) of the Summary Offences Act 1966]

[s 18(1)(a) of the Road Safety Act 1986]

Use unregistered vehicle [s 7(1)(a) of the Road Safety Act 1986]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 7 years and 6 months, with a non-parole period of 5 years.

Other relevant orders: Forensic sample and disposal orders made.

9 The applicant was sentenced as a serious arson offender on charges 1-6. The Record of Orders made following sentencing contain directions that the sentences imposed on charges 3, 5 and 8 and summary charges 12, 13 and 34 be served concurrently on each other and the sentence imposed on charge 4.

10 The applicant seeks leave to appeal against his sentence on a single ground that the sentence imposed is manifestly excessive. In his application for leave to appeal against sentence, the applicant particularises this ground as follows:

(i) the sentencing judge failed to have any or any sufficient regard to the principle of totality in the levels of cumulation ordered; and

(ii) the sentencing judge failed to have any or any sufficient regard to the pleas of guilty of the applicant and the stage in the proceedings at which they were indicated (sic).

11 In his application for leave to appeal, the applicant identifies all of the offences for which he was sentenced as the offences in relation to which he seeks to appeal. In his written case, however, the applicant confines his application to the sentences imposed in respect of charges 1-6. The written case specifically disavows the seeking of leave in respect of charges 7 and 8 on the indictment and the summary charges.

12 Between 4 and 14 January 2017, the applicant lit a number of grass fires in the North West metropolitan area of Melbourne. The applicant lit the fires by attaching weights to sparklers that were lit and thrown into grass by him from a vehicle. Each of the fires was extinguished by the Metropolitan Fire Brigade. Areas of grassland were damaged, ranging in size from small areas to as much as 161,000 square metres. In total, as we have said, some 431,274 square metres of grassland was burned by the applicant.

13 On occasions, fires burned close to residential properties, posing a risk to the public and major freeways causing traffic delays. While the applicant's conduct posed a risk to the safety of members of the community in the vicinity of the fires, and those tasked with fighting the fires, as well as a significant risk of damage to property, the actual damage caused by the applicant's conduct was relatively confined and no one was injured.

14 Each of charges 1 to 6 was a rolled-up charge, rolling into one charge a number of occasions when the applicant lit fires on the day alleged in the particular charge.[1]

15 On 4 January 2017, the applicant lit six fires in the Mt Ridley/Donnybrook area (charge 1). These fires burned out a total of 54,500 square metres.

16 On 8 January 2017, the applicant lit five fires in North Keilor/Calder park area (charge 2). These fires burned out a total of 33,500 square metres of grassland.

17 On 9 January 2017, by use of a number of lit sparklers, the applicant burned 7,600 square metres of grassland in Sunshine West (charge 3).

18 On 10 January 2017, between 5:40 am and 7:40 pm, the applicant lit five fires in Arundel Road in Keilor, Laverton North, Sunshine West and Keilor, in close proximity to Brimbank Park (charge 4). The fire in Laverton North burned 161,874 square metres of grassland.

19 On the 13 January 2017, between 2:00 pm and 7:30 pm, the applicant lit three fires in Sunshine West and Keilor Downs (charge 5). The fires burned areas of 10,000 square metres, 50,000 square metres and 150 square metres of grassland.

20 On 14 January 2017, between 8.00 pm and 10.55 pm, the applicant lit three fires in Sunshine West, Cairnlea and Keilor Downs (charge 6). The fire in Cairnlea burned approximately 100,000 square metres of grassland and a rotunda. The other fires burned areas of 10,000 square metres and 3000 square metres. The 300 square metre fire was in grassland behind the Keilor Downs police station.

21 CCTV footage had identified a vehicle similar to the applicant's vehicle as being suspected of an involvement in the lighting of the fires. Police observed the applicant driving his vehicle with stolen registration plates affixed (charge 8) and, on the 16 January 2017, the applicant was arrested after a short struggle (summary charge 13). When arrested, the applicant was found in possession of a small quantity of methylamphetamine (charge 7). The vehicle was unregistered (summary charge 35) and the applicant did not have a licence to drive (summary charge 34).

22 At the time of the offending constituting charges 4 to 8, the applicant was on bail, having been granted bail on 9 January 2017 in respect of a charge of theft allegedly committed on 11 June 2015 (summary charge 12).

23 The applicant was born on 14 September 1976. He was 40 years of age at the time of his offending, and 41 at the time of sentencing. He left school after year 10, and was thereafter gainfully employed - mostly in earthmoving.

24 The applicant has a number of prior convictions from various court appearances in 1993, 1995, 2005, 2008, 2012, 2013, 2014 and 2015. The applicant's criminal history includes prior convictions for burglary, theft, unlawful assault, breaching an intervention order, failing to comply with an intensive correction order, fraudulently using licence plates, going equipped to steal, failing to answer bail and various driving offences. He has no prior convictions for arson or arson related offending.

25 On the plea hearing, the applicant tendered a report from Mr Jeffrey Cummins, a consulting forensic psychiatrist. Mr Cummins assessed the applicant 'via a video conference' on 27 July 2017. Mr Cummins expressed the opinion that, at the time of the applicant's offending, the applicant would have attracted the diagnosis of:

• 'a Stimulant Use Disorder which was of at least moderate severity'; and
• 'a chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct'.

At the time of offending (and currently) he is obsessed with, and engages in, ruminative thinking about how he was exploited by his maternal uncle. He is also frequently ruminating about being assaulted at the Gatwick Hotel and the associated acquittal of his attacker. In my opinion, at the time of lighting the grass fires he was severely depressed, as part of the Adjustment Disorder. In my opinion, there was, therefore - at least in his perception - a nexus between him lighting the grass fires and him having been exploited by his maternal uncle and him having been the victim of a machete attack. In my opinion, at the time of offending, his perception, judgement and reasoning ability was impaired, as evidenced by the fact he genuinely believed that by lighting grass fires this would eventually facilitate him receiving mental health treatment.

Significantly, I did not assess Mr Ganon as suffering from Pyromania at the time of lighting the fires.

27 In submissions made to the judge on behalf of the applicant on the plea, the applicant was referred to as having a 'heavy methamphetamine dependency'. Reference was also made to the fact that the applicant's remand in custody following his arrest was his first experience of imprisonment.

28 The judge commenced his reasons for sentence with a description of background matters and the circumstances of the applicant's offending.[2] The judge observed that the applicant fell to be sentenced as a 'serious arson offender' within the meaning of s 6B(2) of the Sentencing Act 1991. The judge noted that this meant that, in sentencing the applicant on charges 1-6 the judge was required to regard protection of the community from the applicant as the principal purpose for which the sentence was to be imposed.[3] The judge also observed that s 6E required sentences for relevant offences to be served cumulatively unless the Court 'otherwise directed'.[4]

29 The judge noted that the prosecution did not seek a disproportionate sentence.[5] He said that this was an appropriate concession, and that he would not impose one.[6]

30 The judge observed that the applicant's offending in charges 1 to 6 was very serious, and that the applicant had endangered the safety 'of people and property on a fairly large scale'.[7] The judge noted that the offending extended over a period of almost two weeks and it involved the repeated acts of lighting fires.[8] The judge said:

Any sentence must properly impose a measure of protection of the community from you and reflect deterrence, both general and specific and must appropriately denounce your offending and impose just punishment and take into account your prospects of rehabilitation, which I assess as being only fair. One cannot be more certain, because you must rid yourself of drug dependency and have appropriate treatment for your mental health problems.[9]

31 The judge noted that the applicant's charges had resolved into a guilty plea at a committal case conference on 13 April 2017. The judge treated the applicant as having indicated that he would plead guilty at the earliest opportunity. The judge also concluded that the applicant's pleas of guilty were indicative of genuine remorse.[10]

32 The judge referred to the evidence of Mr Cummins, accepting Mr Cummins's diagnoses.[11] The judge, however, did not accept Mr Cummins' opinion that there was a nexus between the applicant's offending and the applicant's diagnosis of a chronic adjustment disorder with mixed disturbance of emotions.[12] As the judge put it:

The fact remains, when you offended, you were affected by the drug ice and the effects of that drug cannot be disentangled from any effects of any chronic adjustment disorder with mixed disturbance of emotions you may have been suffering from. The fact that you were using the drug ice helps explain your offending. It does not excuse it.[13]

33 The judge then dealt with some more matters personal to the applicant,[14] before concluding his reasons for sentence:

[Your counsel] asked that I impose a term of imprisonment of not more than 12 months and have you assessed for a community corrections order. I indicated in the hearing that I did not think that was an appropriate disposition and it was not agreed to by the prosecution. In my opinion, your offending is too serious and having regard to the purposes of sentencing which must be taken into account when sentencing you for this offending, I am of the opinion that a term of imprisonment of 12 months and a community corrections order would not properly serve the purposes of sentencing in this case. For these reasons I will impose a term of imprisonment and fix a non-parole period.[15]

34 The applicant submitted that the sentences imposed on charges 1 to 6 and the orders for cumulation were beyond the range available as a reasonable exercise of the sentencing discretion. Reference was made to the sentencing reasons in DPP v Saxe.[16]

35 In Saxe, the offender was sentenced in relation to four deliberately-lit bushfires to a term of imprisonment of three years and nine months with a non-parole period of 16 months. The applicant submitted that Saxe supported his complaint of manifest excess, saying that while the sentences imposed were of the same magnitude as in the present case, the orders for cumulation in Saxe were significantly less. In making this submission, however, the applicant conceded that the offending in Saxe was 'arguably less serious', that the offender was older (78 years of age), and that the offender had a 'negligible criminal record'.

36 The applicant contended that the judge failed to have any or any sufficient regard to the principle of totality in the levels of cumulation that were ordered. It was submitted that while the potential for injury or the destruction of property was 'obviously high', the reality was that the damage was confined to grassland and a small rotunda. It was said that:

When properly analysed, this was offending that was committed over a confined period of time and against precisely the same background on each occasion.

37 The applicant submitted that the level of cumulation ordered by the judge 'resulted in a total effective sentence being imposed that is greater than is necessary to satisfy the various objectives of sentencing.'

38 Under the second of his particulars of manifest excess, the applicant submitted that the judge failed to have any or any sufficient regard to the pleas of guilty and the stage at which they were 'indicated'. While the judge made reference to the various mitigatory factors upon which the applicant relied, the problem (it was submitted) was that those findings were not reflected in the sentence that was actually imposed. The individual sentences imposed on charges 1 to 6, the total effective term of imprisonment and the non-parole period were all submitted to be manifestly excessive.

39 The applicant's complaints are totally devoid of merit. His offending involved multiple attempts to light multiple fires. The damage he caused was not insignificant. The potential for far greater damage, injury or loss of life was high.

40 The sentencing decision relied upon by the applicant (Saxe) is of no assistance to the applicant - and certainly does not disclose any arguable issue with the judge's sentence. In addition to the matters conceded by the applicant, it might be observed that the offender in Saxe suffered poor health and a post-traumatic stress disorder which may have been the result of trauma the offender experienced while serving as a police officer between 1956 and 1971.[17] In any event, the sentence imposed in only one case cannot define the appropriate sentencing range for another case.[18]

41 Far from being wholly outside the range of sentencing options available to the judge, the sentences and orders for cumulation imposed by the judge were, if anything, lenient. The contrary proposition is not reasonably arguable.

42 Moreover, the proposition that the judge failed to take any account or any proper account of the principle of totality or the applicant's very early indication that he would plead guilty is likewise not reasonably arguable. The judge made express reference to all of the relevant mitigatory matters, and the sentences imposed do not disclose any basis upon which it might reasonably be contended that insufficient weight was given to them by the judge.

43 The only matter of note (but about which no complaint is made by the applicant) concerns the judge's sentencing of the applicant as a serious arson offender on each of charges 1 to 6. While nothing turns on the point (as there is no prospect that any different sentence should now be imposed), it may be that the applicant should only have been sentenced as a serious arson offender on five of the six arson charges.[19]

44 The application for leave to appeal must be refused.

[1] See DPP v Jones [2013] VSCA 330; (2013) 40 VR 267, 286-7 [80]; R v Jones [2004] VSCA 68 [12]-[13]; R v Beary [2004] VSCA 229; (2004) 11 VR 151, 156-7 [11]-[14].

[2] DPP v Ganon (Unreported, County Court of Victoria, Judge Lacava, 14 September 2017) [1]-[15] ('Reasons').

[3] Ibid [3]. See s 6D(a) of the Sentencing Act.

[5] Ibid [4]. See s 6D(b) of the Sentencing Act.

[16] [2014] VCC 605 ('Saxe').

[17] Saxe [2014] VCC 605 [18].

[18] See DPP v Zhuang (2015) 250 A Crim R 282, 292 [30], 294-5 [36] (Redlich, Priest and Beach JJA). See also DPP v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 349 ALR 37, 54-5 [83] (Gageler and Gordon JJ); Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605 [57] (Gaudron, Gummow and Hayne JJ).

[19] 'Serious arson offender' is defined in s 6B(2) of the Sentencing Act to mean:

An offender (other than a young offender) who has been convicted of an arson offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre.

At the time the applicant was sentenced for his first arson offence, he had not yet been sentenced to a term of imprisonment.