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[2011] NSWCCA 124
Court of Criminal Appeal (NSW)
2011-02-10
Giles JA, Hulme J, Adams J, Adams JJ
Original judgment source is linked above.
Judgment 1GILES JA : The sentencing judge's reasons were inadequate, and there was error whereby leave to appeal should be granted. 2We must consider for ourselves what sentence should have been passed and whether some other sentence was warranted in law and should have been passed. The facts and evidence upon which that should be done are found in the reasons of R S Hulme and Adams JJ, as are the applicant's record and relevant subjective matters. 3Like their Honours, I conclude that burning the house down was premeditated, and I join R S Hulme J in coming to the same conclusion as to the damage to the vehicle and uprooting the trees. I agree that the applicant's conduct was due to dislike of Mr Cooper, meriting the description of intense hatred. There is no basis for finding that the dislike was warranted, for what relevance that may have, and I conclude that the conduct was influenced by the mental disorder found by Dr Westmore some six days later. 4The offences were objectively serious, and although the applicant was influenced by his mental disorder he meant to harm Mr Cooper, to the considerable extent of burning his house down. He had failed, as he had on previous occasions, to act responsibly in relation to, or comply with the current parole conditions concerning, his medication and alcohol. There was a long history of offending, and the subject offences were in breach of two bonds. Respectfully disagreeing with Adams J, I concur with R S Hulme J that some accumulation was appropriate and that no other sentence was warranted in law and should have been passed. 5Accordingly, I would grant leave to appeal but dismiss the appeal. 6R S HULME J : In this matter I have had the advantage of reading the reasons for Judgment of Adams J. Although I disagree with his Honour's conclusion as to the disposition of the application to appeal, his Honour's remarks mean that these reasons can be shorter than they otherwise would have been. 7I agree with Adams J that the remarks on sentence of Black DCJ were inadequate as an exposition of his Honour's consideration of the sentencing of the Applicant and of his Honour's reasons for imposing the sentences that he did. Indeed, by comparison with what the Applicant, the Crown, and the community were entitled to, his Honour's remarks were grossly inadequate. 8Apart from briefly summarising the counts, all Black DCJ said as to the circumstances of the offences was:- Now the damage to the car was unpleasant, slashed tyres and offensive remarks scratched on it. The damage to the house of course was total, it was completely destroyed. The background is unclear. The offender who has been examined by Dr Westmore, a psychiatrist well know to the courts and of very high repute, clearly has mental issues and in those circumstances it is a little difficult to make out what it was precisely that motivated the offender's dislike of Mr Cooper but what seems to be clear was there was a background of dislike and of course it is not for me to say whether there was any justification for any of it but that it was led initially to the damage to the vehicle and further to the destruction of the house. 9In fact, during the days of trial that preceded the Applicant's pleas of guilty there was evidence:- (i) from Mr Cooper of an incident two days before his car was damaged in the local bowling club when the Applicant, smelling strongly of methylated spirits, approached him and after a time commenced to abuse him saying, inter alia, that Mr Cooper had ripped him off years ago and "I'm going to burn you out, I'm going to kill you and your missus and then I'm going to blow your head off ... ." (ii) from a Mr Vansca, of the Applicant on the same occasion threatening to burn Mr Cooper out or set fire to his house. ; (iii) of the Applicant being evicted from the Club following this abuse; (iii) of a recorded interview between police and the Applicant wherein the Applicant said that Mr Cooper had ripped him off, had been responsible for the death of a Mr Dobson and, in the interview, threatened to put a bullet between Mr Cooper's eyes; (iv) from a neighbour Mr Watson who said that the Applicant had told him he burnt Mr Cooper's house down because Mr Cooper had killed a mate 15 years earlier; (v) from another neighbour, Mr Van Bavel, who said that the Applicant had described how he had burnt the house down, using 2 litres of petrol in the process. 10Mr Cooper was challenged as to the threat to burn his house down but not as to the balance of his evidence referred to. There were challenges, albeit somewhat perfunctory, to the evidence of Mr Vansca and Mr Watson. Mr Van Bavel's evidence was incomplete when the Applicant pleaded guilty. Nevertheless, the evidence could have led to no other conclusion but that the Applicant's conduct was deliberate and premeditated and inspired by rational or irrational dislike - a dislike which however could not come close to justifying the offences. 11There was also evidence to which Adams J has referred of the extent of the damage caused by the Applicant's offences - in the case of the first, two tyres slashed, the words "dead cunt" scratched into two areas of a vehicle and trees pulled out of the ground, and in the case of the second, Mr Cooper's house and contents destroyed resulting in an insurance payout of the order of $120,000 for the house alone. 12Adams J has provided a summary of many parts of the Applicant's criminal record and I need not repeat. Prior to the commission of the offences presently under consideration, and putting aside appeals, he has been dealt with by courts on some thirty-two occasions. Three of these involved using an unregistered and uninsured motor vehicle. Four involved possession of a firearm when he was not entitled to do so and two involved possession of a prohibited weapon. 13Over the years he has been placed on a bond or recognisance some thirteen times including on 6 July 2005, a mere two weeks before he damaged Mr Cooper's car. Conditions of that bond included that the Applicant abstain from alcohol and non-prescribed substances and take all prescribed medication. Earlier, on 1 November 2004, when the Applicant was sentenced to imprisonment for 12 months including a non-parole period of 6 months commencing on 13 August 2004, for destroying or damaging property, one of the conditions of parole was that the Applicant comply with all mental health medications. 14It is apparent from the evidence of Mr Cooper and what the Applicant told Dr Westmore that at about the time of his offending the Applicant "was drinking metho, beer, whatever I could afford". 15By comparison Dr Westmore recorded that when he interviewed the Applicant in prison on 16 April 2008 the Applicant was being medicated with Epilim, Lithium and Zyprexa and at that time the Applicant was pleasant and co-operative, his affect and mood were appropriate, he was not suffering from a major depression and his mood was not abnormally elevated and no psychotic symptoms were displayed. Dr Westmore diagnosed him as suffering, inter alia, from bipolar affective disorder, in remission. In contrast to the hypomanic phase of bipolar affective disorder which he thought the Applicant had been suffering from at least at the time of his police interview. 16Dr Westmore also observed that the Applicant had been the subject of a number or prior medical reports. One, in August 2007, noted that the Applicant's mental state was affected by alcohol intoxication and a developing hypomanic episode. Another, in December 1997, diagnosed the Applicant as suffering from a bipolar affective disorder. A third, in September 2004, referred to the Applicant suffering from alcohol and cannabis abuse and having a mood disorder. A fourth, in April 2007, referred to the Applicant having a bipolar disorder. 17There is no doubt that the Applicant's mental condition provides some grounds for imposing a sentence lower than otherwise might have been called for. On the other hand the nature and frequency of his offending has demonstrated not merely that he his unable but also that he has been unwilling to comply with reasonable standards of behaviour. Adams J has referred to the fact that the offences presently under consideration were committed in breach of bonds and parole. It is also reasonably to be inferred - as Black DCJ did infer - that the Applicant's condition at the time of the subject offences reflected a failure to comply with the conditions concerning medication and substances to which I have referred. 18It is also clear that, judged by the Applicant's record to date, he is a menace to society when at large, a factor which, kept within proper bounds, tends to offset the mitigatory impact of his mental illness. 19I am also of the view that Black DCJ did not err in making the sentences he imposed partly cumulative. While undoubtedly both offences were inspired by the same motivation, carried out as they were 5 days apart, the passage of time meant that the Applicant had full opportunity to reflect on the damage to the car and palm trees before he embarked on the deliberate destruction of the house. 20When the totality of the circumstances are weighed, I am not persuaded that some sentences, less severe than those imposed by Black DCJ, were warranted in law and should have been passed. Because there was error in Black DCJ's remarks, I would grant leave to appeal but, because of the conclusion just expressed, dismiss the appeal. 21ADAMS J : This is an application for leave to appeal against the sentence imposed by the District Court at Lismore on 9 April 2009 in respect of one count of malicious damage contrary to s 195(1)(a) of the Crimes Act 1900 (the Act) and one count of maliciously destroy by fire contrary to s 195(1)(b) of the Act arising from a series of events which took place between 22 and 26 July 2005. Respectively, the maximum sentences are ten years and five years. The applicant pleaded guilty to both counts on 8 April 2009 (the third day of his trial). The learned sentencing judge imposed a fixed term of 12 months, backdated so as to commence on 2 May 2008, on the first count and a total term of imprisonment of six years to commence on 2 November 2008 and expire on 1 November 2014 with a non-parole period of three and a-half years on the second count. By partial cumulation the applicant will be eligible to be considered for release on parole on 1 May 2012. 22Evidence had been called in the trial of certain events leading up to the damage in question, the nature and extent of the damage, certain conversations allegedly having taken place between the applicant and several persons after the event in which he described what he did and gave a limited explanation for his acts. Aside from the conversations, the evidence was in substance uncontested. 23The applicant's grounds of appeal are that the sentencing judge failed to assess where on the scale of objective seriousness the offences committed by the applicant fell, that inadequate reasons for the sentences were given and the sentences were manifestly excessive. 24The appeal is out of time but the Crown does not oppose granting the applicant an extension of time to permit him to make this application. The sufficiency of the reasons for sentence 25The sentencing judge briefly referred to the course of proceedings and then went on to deal with the facts. His Honour described, briefly but adequately, the nature and extent of the damage caused by the applicant but otherwise made no reference to the objective circumstances of the offences, except for describing the burning down of the house as "quite appalling". In substance his Honour confined his reasons to the applicant's subjective features. 26It is scarcely capable of controversy that the circumstances of the offence which form the basis of determining its objective seriousness and, together with the subjective features, form part of the instinctive synthesis reflected in the sentence must be stated by a sentencing judge. Although some generality of language is, of course, permissible, it is essential that the sentencing judge makes clear the factual basis for the sentence that is imposed. This is necessary to enable not only the accused and the Crown but also the community to understand why the sentence was passed and is fundamental to the due administration of criminal justice. It is also necessary for the purpose of enabling this Court to exercise its statutory responsibilities in respect of any appeal that might be brought by either party since otherwise it is impossible to determine whether the sentence is appropriate or not. These propositions are so obvious as not to require resort to authority. 27It may well be that, to a substantial extent, the facts for the purpose of the sentences were not disputed, as evidenced by the submissions of counsel to the sentencing judge. However, that cannot be a substitute for findings which were not actually made or, if made, not stated. 28The sentencing judge's findings as to the extent of the damage, though necessary, are insufficient to justify the sentences imposed on the applicant. Indeed, they are insufficient to justify any sentence. It is not possible in the absence of the facts to determine whether the sentence is manifestly excessive and this ground cannot effectively be litigated. In my view, the appropriate outcome is to grant leave to appeal and uphold the appeal. 29The question then arises as to whether to remit the matter back to the District Court for resentencing following a determination, after appropriate hearing, of the facts. There are a number of practical difficulties facing this proposal, including substantial delay. The parties have submitted that this Court should resentence the applicant in substance upon the basis of the evidence given at the trial. In my view this is the proper course.
Facts 30The following account has been gathered from the transcript of the trial and oral submissions of counsel at the sentencing hearing which were not in issue. No evidence was given at the sentencing proceedings. 31The victim and the applicant had known each other for almost 20 years although they had not met for some ten years or so. The premises where each lived at the time of the offences were about four and a half kilometres apart. On the evening of 19 July 2005 the victim attended the bowling club, where he met a friend. Whilst they were having a drink, the applicant who was drinking what smelt like methylated spirits from a lemonade bottle approached them. The applicant and the victim exchanged pleasantries and began to have a conversation. During the conversation the applicant became abusive and was escorted from the club. 32On the evening of 21 July 2005 the victim parked his vehicle under the carport attached to his house. On the morning of 22 July 2005 he discovered that two tyres on the driver's side of the vehicle had been slashed and the phrase "dead cunt" and the letters "D-C" scratched into the vehicle's paintwork. A number of palm trees situated in a garden bed on the property had also been uprooted and thrown down a hill. 33The victim continued to stay in his house after the damage occurred to his vehicle, asking a friend to stay with him at night. The victim deposed that shots had been fired at the house on the evening of 22 July 2005 but he could not be certain of their source. The victim left his property on 24 July 2005 and stayed with friends in Bonalbo, approximately 15 kilometres away, until the morning of 27 July 2005. He returned on the morning of 26 July with some friends but left after checking on his house and removing items belonging to him and the friends who had accompanied him. Late on the evening of 26 July 2005 the victim's house was discovered by an officer of the Rural Fire Service to be ablaze. The fire caused the roof and walls of the house to collapse, resulting in the complete destruction of the house. The victim, who had spent the night at a friend's house, was informed on the morning of 27 July 2005 that his house had been destroyed by fire. 34Mr Spanswick, an expert engaged by the victim's insurer to investigate the fire testified that tests conducted on samples of timber and soil extracted from the front entrance of the house did not yield any results suggesting the use of an accelerant. Samples were not taken from the rear of the house - a fact that is relevant only to the admission evidence discussed below. The victim received a payout from his insurer exceeding $100,000 as a result of the fire but this did not cover the loss of the contents. No evidence was adduced regarding the cost of the damage to the victim's motor vehicle. 35A daughter (who was a teenager at the time of the commission of the offences) of the applicant's neighbour, testified that at around 8pm or 9pm on 26 July 2005 the applicant attended the neighbour's property and asked her if he could borrow a torch. She accompanied the applicant to her motor vehicle where they both searched for and found a torch. She said that after a brief conversation, the applicant said that it was a "nice night for a ride" and departed on his bicycle.
Contested evidence 36Evidence was given by a number of witnesses about conversations that occurred between the victim and the applicant on the evening of 19 July 2005 and alleged admissions made by the applicant to a neighbour and one of the neighbour's relatives regarding the commission of the offences. There was also evidence concerning whether the applicant, when he departed the neighbour's property on the evening of 26 July 2005, was headed in the direction of the victim's property. The evidence was, in summary, that the applicant had said that he had entered the victim's house after ascertaining that it was vacant and started the fire with petrol. 37The evidence was disputed and the trial judge made no findings about it. It must therefore be disregarded. However, since the victim was undoubtedly not present at the time of the fire and there is no evidence to suggest that the applicant thought he was present, I am prepared to accept that, before lighting the fire, the applicant checked to see that the house was empty.
Prior record 38The applicant was 52 years old at the time of the offences. His adult criminal record commenced when he was 21 with a conviction for offensive behaviour, street fighting, for which he received a fine in 1984. In 1990 he was convicted of unlawful entry, malicious damage, possession of an unlicensed firearm, and three other counts, in 1993 of having a firearm in or near a public place, in 1995 of possessing of an unlicensed firearm, a prohibited drug (cannabis leaf) and larceny, and in 1996 again of possessing of an unlicensed firearm, cultivating a prohibited drug, two counts of breach of an interim apprehended violence order and two other counts. The offences then change character, involving at first the use of violence and then intimidation, most often of police officers, with the intention to instil fear of injury. In 1997 he was convicted of assault and two counts of assault occasioning actual bodily harm for which he was sentenced to 18 months imprisonment and one count of maliciously inflict grievous bodily harm for which he was sentenced to 20 months imprisonment with an additional term of 22 months imprisonment. In 1998 he was convicted of assault occasioning actual bodily harm for which he was sentenced to six months imprisonment. In 2000 he was convicted of intimidating a police officer in the execution of his duty for which he was sentenced to 12 months imprisonment with a non-parole period of six months and three other counts of intimidation with the intent of causing fear and in 2002 he was convicted of assaulting a officer in the execution of his duty. In 2004 he was convicted of one count of affray. In 2005 he was again convicted of intimidating a police officer in the execution of his duty, intimidating with intent to cause fear, possessing a prohibited weapon without permit and custody of a knife in a public place and in 2006 again on two counts intimidating a police officer in the execution of his duty and three counts of intimidating with intent to cause fear, for which he was sentenced to concurrent terms of 12 months imprisonment. In 2008 he was convicted of assaulting a law enforcement officer causing actual bodily harm for which he was sentenced to three months imprisonment. In 2009 he was convicted on five counts involving police officers and one count of affray, for which he received concurrent 12 month suspended sentences. His record is replete with broken bonds. I have omitted a number of minor public order, driving and motor vehicle, and property offences. 39The present offences were committed in breach of a three year bond imposed in the Bourke Local Court in 2004, parole in respect of a sentence imposed in the Lismore Local Court in 2004 and a two year rehabilitative bond imposed in the Casino Local Court only a few weeks earlier on 6 July 2005. Subjective features 40The applicant, who was 52 years of age at the date of the offences, did not give evidence in the sentencing proceedings. The Crown prosecutor tendered a transcript of his interview with police on 27 July 2005 and defence counsel a report dated 21 April 2008 of Dr Westmore a forensic psychiatrist. 41It appears that the applicant had an unremarkable childhood. He was born in Bourke and is one of four children, with three male siblings. His parents separated when he was 14. His mother was an alcoholic. The applicant had a good relationship with both parents. Due to his mother's alcoholism he was exposed to and consumed alcohol at an early age but only began to drink heavily and regularly at age 33. 42The applicant has four children. There is a son aged approximately 37 years and a daughter aged approximately 15 years by different women. He does not have any contact with either child. He also had two sons from a de facto relationship which lasted 20 years and ended in 1991. One of these sons died of cot death and the surviving son, aged approximately 36 years suffers from schizophrenia. There is no evidence of any other incidents of psychological illness. 43The applicant has a long of history of drug and alcohol abuse. In his report, Dr Westmore found that "[the applicant] has a history of mental illness over a period of ten years and probably longer. He has been diagnosed with a bipolar affective disorder characterised by hypomanic and depressive phases. When hypomanic he appears to become irritable and aggressive, he is argumentative and annoys people." Dr Westmore said that, "[b]ased on the nature of the conversations contained in the transcript of the record of interview, my opinion is that on the balance of probability Mr Jackson was suffering from an episode of his bipolar affective disorder (hypomanic phase) [at that time]." The interview was conducted on 27 July 2005, six days after the offence. In my view it is reasonable to infer that the applicant was suffering from this condition at the time of the offence. Dr Westmore expressed the opinion that, in light of the applicant's criminal history, "it is possible [the applicant] has antisocial personality traits or an antisocial personality disorder". The doctor did not comment on the connection between the applicant's mental state, and the offences since the applicant denied any involvement in them. 44It is immediately apparent from the record of interview that the applicant was suffering from significant aggressive irrationality. The following is by no means an exhaustive sample - "Q 68 I am aware of what you told Senior Constable Llewellyn, I'm aware of that. This is not, and OK, this time - - - A Mate, I'll tell you somethin', I'll tell you somethin' straight out, I've got better, better fuckin' cookies to fry than worry about scumbags here in Australia. I'm goin' after fucking' terrorists. I'm re-engaging back into my old funckin' unit, I'm goin' to Afghanistan to get Bin Laden, that is fuckin' a fact. So don't fuck with me. I've I've gotta fuckin, if I'm gunna be fucked around with you any more, if you lock me up, I'll go to fuckin' Long Bay to the hospital, where all these fuckin' terrorists hang out and cut start cuttin their fuckin' heads off." ... Q 83 Yes. Just, just so we can get the basics we want to get covered here - - - A Well you know, I'll tell you somethin', Adam, I wouldn't jeorpardise my chances now, I'm re-engaging, I've been in the Reserve Army and I've worked in the Reserve, I worked (not audible), I wouldn't jeopardise my chance of goin' to Afghanistan to have a crack at gettin' Bin Laden, I really wouldn't, and I don't need to go to fuckin' gaol and be locked up and then have to wait for 12 months and let him blow, you know, go on blowin' up fuckin' people, innocent people all over the globe, you know? I wanna go after him, mate and I, and I don't give two fucks what happened to him. Q 84 Yes. A What happened to ... [the victim] if he go it, if it was a fist to fuckin', God that fuckin' almighty God and he got fuckin' God's will, that's God'[s] will, I can't do nothin' about it, but personally I had fuck all to do with it." [sic] 45There is no evidence that the applicant has ever served in the armed forces in any capacity. In light of the length and character of his criminal record, the conclusion is inevitable that he did not do so. He informed Dr Westmore that his longest term of employment was for a period of three years as a meatworks factory employee where he worked on and off. 46The learned sentencing judge found that the applicant "clearly has mental issues", a matter which was accepted by both sides, but as I read his Honour's reasons, little allowance was made for this factor having regard to the "public interest in being protected". His Honour made no reference to the reduced moral culpability that the applicant's condition entailed. This case does not call for a detailed examination of the authorities dealing with this subject. It is sufficient to say that a significant mental handicap or difficulty that is relevant to the commission of the offence may remove or reduce the utility of the sentence as constituting a general deterrent, though it might give greater significance to the need for personal deterrence, providing of course that the sentence does not exceed the punishment which the offender deserves. Conclusion 47The applicant, motivated by intense hatred of the victim provoked by beliefs largely, if not entirely, the creation of his unbalanced mental state decided to burn his house down. This was premeditated. He also damaged the victim's motor vehicle, though whether this was premeditated or impulsive is unknown. The damage to the vehicle and uprooting the palm trees was simply another expression of the applicant's irrational malice towards the victim. There is no doubt that he was aware of what he was doing and that the loss to the victim - or his insurers - would be considerable. He did, however, ensure that the victim was not exposed to the risk of injury. 48The premeditation and the total destruction of the victim's house with all its contents, a result clearly intended by the applicant, carrying with it a very substantial financial loss makes this offence of arson an objectively serious one. The applicant's seriously disturbed mental state materially reduces his moral culpability but his criminal history demonstrates that any sentence must contain a significant element of personal deterrence. 49An affidavit of the applicant was tendered on the usual conditions. Having regard to the duty of this Court to resentence the applicant, it should be read. The applicant acknowledges that he suffers from bipolar disorder and that, when in a florid phase, can believe things that are not true and act in ways that are uncontrolled. He says that he wants to avoid returning to such a phase and believes that with good management it can be avoided. The applicant expresses remorse for his actions which, in the circumstances, I am minded to accept as genuine. He says that, whilst in custody, his condition has been treated effectively with drugs. He is also participating in the Kairos programme, which has been helpful and has undertaken literacy and numeracy courses. He is awaiting approval to participate in the SMART (Self Management and Recovery Training) programme, which has been deferred. 50The applicant stated his hopes for the future upon his release which, on the face of it, appear to be sensible but, realistically, depend upon his continuing to take his medication. The past two decades of criminal conduct demonstrates that little reliance can be placed on his present, no doubt sincere, expressions of good intentions. The sentence must be adequate to markedly reinforce them. 51The sentencing judge gave the applicant the benefit of a utilitarian discount because of his plea of guilty but did not specify its extent. In my view a discount of ten per cent is appropriate. 52In my opinion the offences were part of a single criminal enterprise provoked by the same irrational beliefs about the victim and reflecting the same disturbed judgment. I consider that the sentences for each offence should be concurrent. In my opinion, the applicant's mental state is a special circumstance requiring a variation of the statutory ratio specified in s 44 of the Crimes (Criminal Procedure) Act 1999, principally to provide for a substantial period of supervision. 53I would extend time to appeal, grant leave to appeal, quash the sentences passed in the District Court and substitute the following sentences: in respect of the offence of malicious damage I would impose a fixed term of nine months imprisonment commencing on 2 May 2008 and expiring on 1 February 2009; and in respect of the offence of arson I would impose a non-parole period of three years commencing on 2 May 2008 and expiring on 1 May 2011 with an additional term of three years commencing on 2 May 2011 and ending on 1 May 2014.
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