Issa v R

The relevance of the fire damage offences not being strictly indictable

1. The applicant did not press the submission that the sentencing judge ought to have taken into account the circumstance that the fire damage offences were not strictly indictable. He accepted that it was a matter for the Director of Public Prosecutions (the DPP) to elect whether they ought be tried on indictment or summarily: s 20(1) of the Criminal Procedure Act 1986 (NSW); Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [20] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); and Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [34]-[35] (French CJ, Hayne, Kiefel, Bell and Keane JJ). The exercise of the DPP's discretion is not a matter which is subject to review by this Court.
2. Nonetheless, the applicant submitted that, as the actual damage caused to the properties was relatively modest, they could have been dealt with by the Local Court.
3. The applicant has not established any error on this ground. The election to proceed with the fire damage offences on indictment was understandable. First, each fire damage offence was associated with a pervert justice offence, which is a strictly indictable offence. Secondly, there were repeated attacks aimed at intimidating one of the litigants by also targeting their solicitor. Thirdly, the damage to the Mosman premises was not minimal. Fourthly, the criminality involved in each of the fire damage offences was substantial and, if proved, warranted sentences in excess of the jurisdictional limit of the Local Court of two years provided for by s 27(2) of the Criminal Procedure Act. The DPP's decision to proceed on indictment for the five fire damage offences was vindicated by the sentences indicated by his Honour for those offences, each of which exceeded the jurisdictional limit of the Local Court: see R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [27]-[35] (Grove J, Spigelman CJ and Kirby J agreeing).
4. In the circumstances of the present case it is of no more than hypothetical relevance that the fire damage offences were not strictly indictable: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [83] (Johnson J, McClellan CJ at CL agreeing).
5. As Basten JA said in Baines v R [2016] NSWCCA 132 at [13]: "The court should impose the appropriate sentence for the offence as proved, within the limits of the sentencing court's jurisdiction and discretion."

Alleged double counting with fire damage and pervert justice offences

1. While the actus reus of the fire damage offences was the same as the pervert justice offences, the commission of each offence involved a distinct mental element. At the sentence hearing the Crown submitted that concurrent sentences were appropriate (in the event that the sentencing judge was minded not to impose an aggregate sentence) for each respective fire damage and pervert justice offence. The Crown also accepted that the sentence for any one fire damage offence could be subsumed by the sentence for the corresponding pervert justice offence, the latter offence being the more serious and carrying the greater maximum penalty. His Honour recorded that he accepted that the notional sentences for the pairs of offences under ss 195 and 319 ought be served concurrently, albeit in the context of an aggregate sentence. As there was no challenge to this approach, which was to the benefit of the applicant, it is not necessary for this Court to review it. It is sufficient to observe that this approach favoured the applicant.
2. In these circumstances I am not persuaded that there was any double-counting as alleged by the applicant.

The relevance of the reckless cause grievous bodily harm offence not being strictly indictable

1. For similar reasons as those given above with respect to the fire damage offences, the circumstance that the offence to which the applicant pleaded guilty could have been dealt with in the Local Court is, in my view, of no more than hypothetical significance. The agreed facts are sufficient to indicate that the seriousness of this offence made it inappropriate to be dealt with in the Local Court. The sentence indicated by the sentencing judge could not have been imposed had the offence been dealt with in the Local Court or on a Form 1 following a certificate pursuant to s 166 of the Criminal Procedure Act, by reason of ss 168(3) and 268 of the Criminal Procedure Act: see R v Doan at [27]-[35] (Grove J, Spigelman CJ and Kirby J agreeing); and Mundine v R [2017] NSWCCA 97 at [92].

The sentencing judge erred in treating the offences as being aggravated (ground 2) and in breaching the rule in De Simoni (ground 4)

1. These grounds will be dealt with together as they overlap to some degree. Ground 4 will be dealt with first.

Ground 4: whether the sentencing judge breached the De Simoni principle

The applicant's submissions

1. The applicant contended that a finding of the applicant's advertence to the possibility of harm to potential occupants of the relevant premises would trespass into the elements of more serious arson offences, namely those provided for by ss 196 and 198 of the Crimes Act. The applicant submitted that recklessness as to the consequences provided for in s 196 covered the same ground as the aggravating factors which were taken into account by his Honour at common law and under s 21A(2)(i). The applicant relied on the Second Reading Speech to the Bill which became the Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW) (the 1987 Amendment).

The De Simoni principle

1. The De Simoni principle (named after The Queen v De Simoni) is that a sentencing judge cannot take into account as a circumstance of aggravation a factor that would constitute an element of a more serious offence than the one for which the offender stands to be sentenced. This principle qualifies the statutory obligation in s 21A(2) to take into account aggravating factors which do not constitute elements of the offence: s 21A(2) of the Crimes (Sentencing Procedure) Act by reason of s 21A(4); Cassidy v R [2012] NSWCCA 68 at [1] (Basten JA).
2. The sentencing judge relevantly took into account two matters of aggravation: first, that "the offence was committed without regard for public safety" because "there existed a risk of fire spreading to buildings surrounding the building targeted by the offender"; and, secondly, that in respect of counts 5 and 11, that the offender would have realised that his conduct was likely to cause a risk of physical danger to the occupants.

The legislative history of ss 196 and 198 of the Crimes Act

Sections 196 and 198 before the 1987 Amendment

1. In order to address the applicant's submission, it is necessary to have regard to the legislative history of the relevant statutory provisions, ss 196 and 198, before and after 1987. Prior to the enactment of the 1987 Amendment, s 196 provided: "196 Setting fire to dwelling etc knowing person therein Whosoever maliciously sets fire to any dwelling-house vehicle or aircraft, knowing any person to be then in such dwelling-house vehicle or aircraft, shall be liable to penal servitude for life."
2. Prior to the 1987 Amendment, s 198 provided: "198 Setting fire to certain other buildings etc Whosoever maliciously sets fire to any dwelling-house vehicle or aircraft, or warehouse, office, shop, mill, barn, store-house, granary, or wool-shed, whether the same is then in the possession of the offender, or of any other person, with intent to injure or defraud any person, shall be liable to penal servitude for fourteen years."

Sections 196 and 198 after the 1987 Amendment

1. As a result of the 1987 Amendment (which relevantly replicated the Bill which was the subject of the Second Reading Speech set out below), s 196 provided: "196 Maliciously destroying or damaging property with intent to injure a person A person who maliciously destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable - (a) to penal servitude for 7 years; or (b) if the destruction or damage is caused by means of fire or explosives, to penal servitude for 14 years."
2. As a result of the 1987 Amendment, s 198 provided: "198 Maliciously destroying or damaging property with the intention of endangering life A person who maliciously destroys or damages property, intending by the destruction or damage to endanger the life or another, is liable to penal servitude for life."
3. Thus, the effect of the 1987 Amendment was to substitute the requirement in s 196 that the accused knew that someone was in the "dwelling-house, vehicle or aircraft", for a requirement that the accused intend to cause bodily injury. The effect of the 1987 Amendment to s 198 was to replace the requirement that the accused intend to injure a person with the requirement that the accused intend to endanger the life of another.

The Second Reading Speech for the Bill that became the 1987 Amendment

1. Notwithstanding the clear statutory language to the effect that intention as to particular consequences was required, the then Attorney-General, Mr Sheahan, explained the effect of the amendments in the Bill that became the 1987 Amendment in the Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1987 at 15345) as follows: "Proposed section 196 contains the aggravating factor of intent to cause bodily injury to another. Under proposed section 196 (a) the maximum penalty provided is seven years' imprisonment. . . . The most serious of the new offences is set out in proposed section 198 which will constitute it an offence to maliciously destroy or damage property with intent to endanger the life of another. This section will carry a maximum penalty of life imprisonment. The offence will require that the person knows that his or her act will endanger the life of another, or is reckless to that fact. This requirement is consistent with the state of mind necessary for murder and manslaughter which also carry a maximum penalty of life imprisonment. This maximum penalty is consistent with the penalty provided for offences where a person's life is threatened." [Emphasis added]
2. I respectfully disagree with the construction of s 198 in the portion I have highlighted in the passage set out above, which I regard as being at odds with the express words of the 1987 Amendment. In my view, recklessness as to the consequences (endangerment of life of another) is not sufficient for an offence under s 198. Moreover, I regard the reference to the "state of mind necessary for murder and manslaughter" as being inapposite. As at the date of the 1987 Amendment, s 18 of the Crimes Act (which defined murder and manslaughter), provided as follows: "18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence."
3. Omitting felony murder, s 18 relevantly provided for three different mental elements for murder: intent to kill; intent to inflict grievous bodily harm; or reckless indifference to human life. Thus recklessness (reckless indifference to human life) as to consequences was the subject of specific provision and was not regarded as being included or subsumed within the ambit of "intent to kill or inflict grievous bodily harm".
4. In my view, from the commencement of the 1987 Amendment, the words "with intent to injure" in s 196 and "with intent to endanger life" in s 198 required the Crown to prove, in each case, that the accused actually intended the specified consequences. This construction is consistent with this Court's decision in Nasser v R [2017] NSWCCA 104, which is addressed below by reference to the current wording of s 198. A Second Reading Speech may be considered in the interpretation of a statute, whether or not there is an ambiguity in the provision: s 34(2)(f) of the Interpretation Act 1987 (NSW). However, in the present case, I regard the words of the provision as displacing the proposition that recklessness is sufficient for the mental element as to either of the consequences specified in either ss 196 or 198.
5. In 1989 and 2006, the provisions were amended, though not relevantly for present purposes. The provisions were further amended by the Crimes Amendment Act 2007 (NSW) (the 2007 Amendment), the principal effect of which was to remove the term "maliciously" from the Crimes Act. Schedule 1, [2] of the 2007 Amendment accordingly provided: "[2] Section 5 Maliciously Omit the section. Explanatory note This section (which defines 'malicious' for the purposes of offences under the Act) is being repealed as a result of the replacement of that term in offences under the Act with the modern fault element of 'intention' or 'recklessness'."
6. Schedule 1, [12] of the 2007 Amendment provided: "[12] Section 47 Using etc explosive substance or corrosive fluid etc, section 196 Destroying or damaging property with intent to injure a person, section 198 Destroying or damaging property with intention of endangering life, section 200 Possession etc of explosive or other article with intent to destroy or damage property, section 211 Criminal acts relating to railways Omit "maliciously" wherever occurring. Explanatory note This item makes a consequential amendment on the omission of the concept of "malicious" by item [2]."
7. As a result of the 2007 Amendment, s 196 of the Crimes Act relevantly provides (presently, and at the time of the offences): "196 Destroying or damaging property with intent to injure a person (1) A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years."
8. As a result of the 2007 Amendment, s 198 of the Crimes Act provides (presently, and at the time of the offences): "198 Destroying or damaging property with intention of endangering life A person who destroys or damages property, intending by the destruction or damage to endanger the life of another, is liable to imprisonment for 25 years."
9. The effect of the deletion of the word "maliciously" was to incorporate, by implication, intention and recklessness as the mental element referable to the actus reus.

The elements of an offence against s 196(1)(a) or s 198 of the Crimes Act

1. The elements of an offence against s 196(1)(a) are, relevantly: 1. The accused damaged property; 2. The accused did so intentionally or recklessly; and 3. When the accused damaged property he intended to cause bodily injury to another person.
2. The mental element that must be proved with respect to the act of damaging property (element (1)) is satisfied either by intention or recklessness (element (2)). However, in respect of the consequences, bodily injury to another person, the Crown must prove intention (element (3)). Recklessness (proof of foresight of particular consequences and the decision to go ahead anyway) is not sufficient to establish the mental element in (3). Similarly, the offence of damaging property with the intention of endangering life under s 198 of the Crimes Act requires the Crown to prove that an accused did a certain act (damaging property), intentionally or recklessly, with the intention of endangering the life of another. Thus, in Nasser v R, this Court (Fullerton J, Hoeben CJ at CL and Price J agreeing) said, obiter, at [28]: "While s 198 of the Crimes Act provides for an offence where a person destroys or damages property intending to endanger the life of another, there is no offence under the Crimes Act where, when premises are deliberately damaged or destroyed, reckless endangerment of life is the mental element. That being the case, Mr Game did not seek to persuade the Court that a latent De Simoni error (R v De Simoni (1981) 147 CLR 383; [1981] HCA 31) had influenced the sentencing outcome or that the sentence imposed was rendered 'unreasonable or unjust' for that reason alone."
3. I note for completeness that the Crown conceded in the present application before this Court that recklessness as to consequences was sufficient for ss 196 and 198, but I do not regard the concession as having been properly made.
4. Thus, if the applicant, as his Honour found, foresaw the possibility of injury to others (whether persons inside the house or members of the public) when he intentionally or recklessly damaged property, this mental element would not be sufficient for an offence under ss 196 or 198, since an intention to bring about the consequences is required. The mental states which were taken into account as matters of aggravation: "without regard for public safety" (s 21A(2)(i) of Crimes (Sentencing Procedure) Act) and foresight of the possibility of harm to a person in the premises (common law aggravation) fell short of the mental elements of an offence under ss 196 or 198. These circumstances are addressed further below in the consideration of ground 2. In these circumstances there has been no infringement of the De Simoni principle.
5. The applicant further contended that the sentencing judge breached the De Simoni principle when his Honour found, as an aggravating circumstance, that the applicant committed the offences "in company", thereby trespassing into the ingredients of the more serious offence provided for by s 195(1A)(b).
6. The principal difficulty with this submission is that it does not accord with the remarks on sentence. His Honour found that: "the firebombing offences must proceed to sentence on the basis that the applicant was present at each of the firebombing events either acting alone or acting in a joint criminal enterprise with another or others."
7. In his Honour's careful and detailed remarks there is no suggestion that the circumstance that the applicant may have acted in company was treated as a circumstance of aggravation. This ground has not been made out.

Ground 2: whether counts 5 and 11 (fire damage offences) were aggravated by the applicant's mental state as to the foreseeability of harm to persons

The applicant's submissions

1. The applicant contended that his Honour was in error in finding that counts 5 and 11 were aggravated by the circumstance that his conduct was likely to cause a risk of physical danger to the occupants. He argued that the Crown had not established to the requisite standard that the applicant believed that the premises were occupied and that his action was likely to cause a real and immediate physical risk to the occupants.

The Crown's submissions

1. The Crown submitted that the applicant conflated the common law and statutory aggravating factors. It contended that it submitted at the sentence hearing that: 1. the offending was aggravated at common law because of advertence to the actual or potential consequences of the offending to persons, who included the occupants of the premises which were firebombed; and 2. the offending was aggravated under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act (disregard for public safety) in respect of potential harm to other members of the public who might be in the vicinity.

Consideration

1. In the passage from the remarks on sentence set out above, his Honour referred to R v Teremoana (1990) 54 SASR 30 in support of the proposition that the applicant's realisation that his conduct was likely to cause a risk of physical danger to the victim could be an aggravating factor at common law. This decision turned on an analysis of what was required for the "more serious offence". In R v Teremoana the Full Court of the South Australian Supreme Court held that an offender's foresight of the possibility of harm to persons when committing a fire damage offence could be taken into account in sentencing for a fire damage offence as long as the mental element falls short of the requisite mental element of a more serious offence (since otherwise there would be a breach of the De Simoni principle).
2. R v Teremoana is a useful illustration of the application of well-established principle. First, the matters of alleged aggravation (whether at common law or pursuant to the relevant statute) ought be identified. Secondly, any "more serious offence" must be identified to ascertain whether any of the circumstances of aggravation in the index offence would amount to elements of the more serious offence. If they would not, then they can be taken into account as aggravating factors in sentencing for the index offence. If they would, then the sentencing court may not take them into account as matters of aggravation, in order to comply with the De Simoni principle.
3. R v Teremoana has been cited with approval in authorities approved by this Court: Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183 at [26]-[30] (Howie J, James and Davies JJ agreeing). In Josefski v R, the applicant contended that the sentencing judge erred in taking into account, as an aggravating factor on sentence for aggravated break and enter contrary to s 112(2) of the Crimes Act, the emotional harm suffered by an elderly woman who was in the premises. This Court (Howie J, James J and Davies J agreeing) rejected the ground in the following terms at [41]: "These were ordinary residential premises. It was night. The applicant ought to have foreseen that there might be persons in the premises. He ought to have foreseen that any person in the premises would be adversely affected by the conduct of his co-offender, to which he was a party, in smashing open the door of the premises with a sledgehammer. It would in my view bring the law into disrepute for the offender to avoid the harm inflicted upon a person in the house in that situation."
4. Given that the requisite aggravating factor at common law is the foresight of the possibility of harm, which involves advertence to risk, it was not necessary for the Crown to prove that the applicant actually knew the premises were occupied. As referred to above, such knowledge was an element of the offence under s 196 before the 1987 Amendment but was removed as an element by that amendment. In my view it was open to the sentencing judge, having regard to the evidence available with respect to counts 5 and 11, to find that the applicant realised that his conduct was likely to cause a risk of physical danger to the occupants and to regard this matter as increasing the seriousness of those offences.
5. His Honour took into account the applicant's foresight of the possibility of harm to the victims in counts 5 and 11 in accordance with this principle. His Honour also accepted the Crown's submission that the offences were aggravated by s 21A(2)(i) of the Crimes (Sentencing Procedure) Act in so far as there was a danger to public safety if the fire had spread. However, his Honour cited R v Chisari [2006] NSWCCA 19 at [28] (Simpson J, Beazley JA and Rothman J agreeing) in support of the proposition that the potential of harm to the direct victims of the offence was not comprehended by s 21A(2)(i) which related to the public at large.
6. Thus his Honour took into account that those of the fire damage offences which took place on residential premises were aggravated by the offender's disregard for public safety (under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act) and that counts 5 and 11 were aggravated by the foreseeability of risk of harm to the victims (which is an aggravating factor at common law). No error has been demonstrated in his Honour's approach. This ground has not been made out.

The sentencing judge erred in his assessment of the objective gravity involved in count 13 (ground 3)

The applicant's submissions

1. The applicant took exception to his Honour's description of his commission of the offence of recklessly causing grievous bodily harm in company as being "of a most serious kind". He contended that the assault, although violent, was short-lived and lasted no more than 15 seconds; there was no permanent disability; the injuries though serious were not life-threatening; it was not coupled with a pervert justice offence; he had expressed remorse; and the offence could have been dealt with summarily.

Consideration

1. His Honour's assessment of the objective seriousness of this offence was informed by the agreed statement of facts and the CCTV footage of the attack on the victim, as well as the surrounding circumstances that the offence was committed against the background of a commercial dispute over work at the victim's restaurant.
2. The assessment of objective seriousness is pre-eminently a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282, Spigelman CJ at [37]; Simpson J at [46]. The question for this Court is whether the assessment was open to the sentencing judge. The offence was aggravated by the use of the knuckleduster and torch as weapons and the participation of the three persons acting in company. There was significant planning in carrying out the offence. The victim suffered serious injuries. His Honour's description of the attack as "ferocious" was apposite. I am not persuaded that his Honour erred in assessing the objective seriousness of this offence.

The sentencing judge erred in failing to find special circumstances (ground 5)

The applicant's submissions

1. The applicant submitted that the sentencing judge erred in failing to find special circumstances, having regard to the applicant's prior good character and lack of criminal history, which meant that this was his first time in custody. The applicant also relied on his strong family support and his Honour's finding that he had reasonable prospects of rehabilitation.
2. A finding of special circumstances is a matter for the sentencing judge's discretion. Even if special circumstances are made out, the sentencing judge is not obliged to reduce the non-parole period and, indeed, is obliged not to reduce it below the minimum period of incarceration that is required in the circumstances: Caristo v R [2011] NSWCCA 7 at [26]-[31] (RA Hulme J, Giles JA and Adams J agreeing).
3. In my view his Honour was entitled to be satisfied that, having regard to the length of the sentence, the parole period would be adequate for the applicant's rehabilitation and no variation of the statutory ratio on the ground of special circumstances was warranted. As the applicant has not demonstrated error, this ground has not been made out.

The applicant's submissions

1. As referred to above the applicant contended that the indicative sentence for count 4 was excessive and that this, at least in part, accounted for what he alleged to be the manifestly excessive aggregate sentence. The applicant, in his submissions in this Court, described the sentence, without elaboration as "unduly harsh, severe and unfair".

Consideration

1. The higher indicative sentence for count 4 arose, as his Honour explained in the remarks on sentence, from the circumstance that the applicant was successful in deterring the victims from proceeding with their civil claim against him. The consequences of an offence are relevant to its seriousness. I am not persuaded that there was any error in the sentence indicated for count 4.
2. In order to show that a sentence is manifestly excessive, an applicant must show that it is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). In the present case his Honour was sentencing the applicant for a number of offences which involved a number of different victims. There was a series of attacks directed at those who had made claims, against the applicant or his company, or their legal representatives. The offences individually and taken together demonstrated a high order of criminality. The offences constituted an attack not only on the property of the victims of the fire damage offences but also on their right to seek legal redress in this State's courts and tribunals. The maximum penalty for each fire damage offence was 10 years' imprisonment. The maximum penalty for each offence of pervert justice was 14 years. The applicant was found guilty at trial and there was no discount for any utilitarian benefit of a plea of guilty, save for count 13, in respect of which a discount of 12.5% for the plea was allowed. There was no warrant for special circumstances. The legislative guideposts for the offence against HNP were a maximum penalty of 14 years and a 5-year standard non-parole period. The offence of recklessly cause grievous bodily harm in company was objectively of a most serious kind for the reasons found by his Honour addressed above.
3. The applicant's counsel cited sentencing statistics at length in support of his submission that the sentence was manifestly excessive. In addition to the usual limitations on the use of such statistics, there is, in the present case, a further limitation on their utility: they are of limited relevance in a sentence which involved repeat offending against different victims over an extended period. The statistics cited provide no warrant for concluding that the aggregate sentence imposed in the present case was manifestly excessive.
4. I am not persuaded that the sixth ground has been made out.

Proposed orders

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
2. BELLEW J: I agree with Adamson J.

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