CITATION: Kaye v Tasmania [2016] TASCCA 15

Criminal Law - Appeal and new trial - Appeal against sentence - Sentence manifestly excessive or inadequate - Sentence for offending not commonly dealt with - Offending against public official - Need for sentence reflecting general and personal deterrence.

Judgment Number: [2016] TASCCA 15

1. I agree that the appeal should be dismissed, for the reasons stated by Estcourt J.

1. I agree that the appeal should be dismissed, for the reasons stated by Estcourt J.

1. The appellant, Shaun Keverall Kaye, appeals against a sentence imposed upon him by Pearce J on 18 May 2016.
2. His Honour convicted the appellant on his pleas of guilty to making a dangerous thing with intent to facilitate a crime contrary to the Criminal Code, s 181, and causing a fire with intent to injure property, contrary to the Code, s 269A. He sentenced the appellant to imprisonment for three years from 9 November 2015 and ordered that he not be eligible for parole until he had served half that sentence.
3. The single ground of the appellant's appeal is that the sentence is manifestly excessive. No specific error is alleged.

1. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter J agreed, summarised the principles relevant to appeals such as the present at [8]-[9] as follows:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.

It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476:

'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions'." (Emphasis added.)

1. The appellant's crimes were motivated by his antagonism towards a team leader at the Child Protection Service in Launceston. From December 2011, the appellant's children were subject to the care and protection of that service, but the appellant believed the service to be obstructive and unfair to him. He became unco-operative and aggressive towards the case manager, a female, and the team leader, a male. He made threats towards the service and to those officers in particular, including threats to burn down the team leader's house. During the night of 6 May 2014 and early morning of 7 May 2014, the appellant took a home-made incendiary device to a house in suburban Launceston believing it to be the home of the team leader. At the time however that house was occupied by new owners who were inside and in bed asleep when the device was lit.
2. The appellant had made the incendiary device himself. It consisted of a plastic container, of about 5 litre capacity filled with a mixture of petrol and vegetable oil. He taped six CO² canisters wrapped around a firecracker to the outside of the container. He attached two sparklers to the firecracker as fuses. He placed the device near the front door of the house and lit one of the sparklers and left. The device did not ignite however because the sparklers had been placed on the outside of the firecracker and not inside it. The device was discovered by the occupants of the house the following morning.
3. The mixture of oil and petrol and the addition of the carbon dioxide canisters were designed to increase the chance of successfully setting fire to the house. The learned sentencing judge observed that had that eventuated, the damage to property and to life, given that there were people inside asleep, could have been catastrophic. By his plea the appellant admitted intending to damage the house, however the State did not contend that the appellant intended to physically harm any person. Nonetheless, the relatively high risk of serious injury or death occurring to the occupants of the house was obvious, notwithstanding the nature of the brick construction of the house, and the appellant clearly acted regardless of that very real risk.

1. The learned sentencing judge made the following comments on passing sentence:

"The defendant is 35. He was 33 when the crimes were committed. He has a long record of offending. He was first imprisoned at the end of 2003 when he was 23. Until 2012 his record was mostly for dishonesty and driving offences, apart from a conviction for assault in 2008. Despite this, the defendant was reasonably industrious. He attained various training qualifications and held stable employment with a building firm for about six years until 2011 when he became heavily addicted to methylamphetamine. His circumstances drastically deteriorated. He lost his job and descended into a criminal lifestyle, much of which arose from the need to fund his drug habit. On 18 December 2012 he was sentenced to 4 months' imprisonment and probation by a magistrate for a large number of driving, firearm, bail and drug offences committed in 2011 and 2012, including three counts of selling a controlled drug. Most of his convictions since then are not prior convictions for sentencing purposes but paint the picture of his life during the relevant period. In December 2014 he was imprisoned for four months for trafficking. On 14 May 2015 a magistrate made a drug treatment order for numerous summary offences, mostly dishonesty, committed during 2014. Such an order is designed to address drug-related offending by rehabilitation without imprisonment, but it did not succeed. He continued to offend and in November 2015 the order was cancelled. He has been in prison since then. I am told that he has abstained from drugs while in prison and wants to get his life back on track when released. Some mitigation arises from the defendant's plea of guilty, although it was at a late stage and in the face of very strong evidence of his guilt. It avoided the expense of a trial and the need for victims to give evidence.

These were not spontaneous crimes. The defendant disclosed his intention many months earlier and he had a long time to reflect on his decision to act. He planned what he did and took some trouble to put that plan into effect. It is an aggravating factor that he was on bail at the time for other offending.

Child protection officers face a difficult and challenging task but provide a vital public service. In performing their work it is their duty to treat the interests of children as the paramount consideration. Despite the desirability of preserving family relationships, judgments are sometimes made that the interests of children are best served by withdrawal from the care of parents. Emotion and strong feeling is invariably generated, and child protection officers are frequently the subject of it. I accept that the defendant felt very strongly that he was not being dealt with fairly. Even if that is true, although I have no reason to suspect it is given his admitted addiction, it provides no justification or mitigation for a crime of this nature. Public officers, like the person who was the target of these crimes, do what they are employed to do. The sentence I impose must serve to vindicate their authority and reflect their entitlement to the protection of the law from attack by those who may be aggrieved by the performance of their function. The community as a whole has an interest in ensuring their safety and preserving the integrity of, in this case, the child protection system. For those reasons, deterrence, denunciation and punishment are the dominant sentencing considerations. The defendant, and others who may be tempted to act on grievances against public officers acting in the course of their duty by recourse to actual or threatened damage to person or property, must have the certain expectation that severe punishment will be the result. I have no victim impact statements. However both the intended victim and his wife were shaken when told what had occurred at what had been their family home. They now feel less safe, even in their new home. The infliction of psychological harm of that nature was the almost inevitable result. The defendant's purpose could only have been to punish and frighten. The occupiers of the home were also shaken."

1. In my view the learned sentencing judge's comments and the resulting sentence of three years' imprisonment are unimpeachable. His Honour recited the appellant's prior convictions but he did not sentence the appellant on the basis of his record. His Honour observed, correctly in my view, that the dominant factor in sentencing the appellant for his crimes arose from the reasons why they were committed.
2. I wish however to say something about the unusual circumstances of the case. Section 181 of the Code has only been the subject of convictions in a handful of cases, none of them truly comparable to the present case: Howlett, 17 December 2004; Wordsworth, 8 September 2005; and Blair, 15 April 2011. Unsurprisingly, the broad nature of the crime and its natural tendency to be committed in conjunction with other crimes means that a wide range of factual scenarios and sentences are observed in those cases and render them of no real assistance in any comparable sentencing exercise: Daley v Tasmania [2016] TASCCA 10 per Brett J at [41]; Connolly v Tasmania [2015] TASCCA 15 per Wood J at [5]. Indeed the learned sentencing judge remarked to counsel on the hearing of the pleas of guilty that an offence against s 181 was "the sort of crime which would depend very much on its particular facts".
3. It has been suggested in the past however that where there is no other truly comparable sentencing decision, the sentencing judge's discretion is broader than in cases in which there were comparable sentencing decisions. That suggestion was debunked by the Queensland Full Court in R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345. Of particular interest are the observations of Fraser JA at [3]-[5]. His Honour, who had sat on two of the earlier cases cited in argument, said:

"[3] The respondent cited R v GAE; ex parte Attorney-General (Qld). In that case there were also no comparable sentencing decisions. In agreeing with Holmes JA's reasons favouring dismissal of the appeal against sentence, I cited (at [27]) R v Melano; ex parte Attorney-General (Qld) [1994] QCA 523; [1995] 2 Qd R 186 at 189 for the proposition that '[t]he sentencing judge had an extremely wide discretion as to the appropriate sentence in this exceptional case'. At the cited passage in R v Melano; ex parte Attorney-General (Qld) the Court (Fitzgerald P, Davies JA and Lee J) stated that a sentencing judge generally 'has an extremely wide discretion to be exercised within the limits of the principles which are applicable'. My reasons did not support any broader proposition. Similarly, there was no support for the respondent's proposition in Douglas J's conclusion in GAE at [31] that he found it difficult to justify a sentence in the range for which the Attorney-General contended even '[i]f there is more scope for this Court to establish an appropriate sentencing range where no comparable case has come before us'.

[4] The respondent also relied upon R v Nuttall; Ex parte Attorney-General (Qld). In that case, Chesterman JA and I agreed with the reasons given by Muir JA. After referring to Street CJ's comments in R v Jackson and Hakim that where there was 'no perceivable sentencing pattern' from comparable cases there was '[i]nevitably... a wide discretionary field open to a sentencing judge', Muir JA stated that the absence of comparable sentencing decisions 'makes it more difficult for an appellate court to conclude that the sentence imposed fell outside permissible bounds'. That statement may have been intended to convey no more than that an absence of comparable sentencing decisions made the sentencing process more difficult for sentencing judges and appellate courts.

[5] In R v Jackson and Hakim, Street CJ was in dissent in the Attorney-General's appeal against sentence in Jackson. In my respectful opinion, if his Honour's statement is to be understood as conveying that the absence of comparable sentencing decisions enlarges the sentencing discretion (as opposed to simply making it more difficult to identify the appropriate sentence), that statement is not reconcilable with recent High Court decisions. It is necessary to mention only Barbaro v The Queen; Zirilli v The Queen, in which the High Court concluded that past sentences do not mark the outer bounds of a sentencing judge's permissible discretion, and that a sentencing judge who is properly informed about the facts, relevant sentencing principles, and comparable sentences 'will have all the information which is necessary to decide what sentence should be passed...'. Comparable sentences assist in understanding how those factors should be treated, but they are not determinative of the outcome and they do not set a 'range' of permissible sentences. Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence. Because sentencing involves a case-by-case synthesis in which past sentences may be used only as guidelines and are not determinative, there can be no underlying range of available sentences for a particular case which may be narrowed or broadened over time by subsequent sentencing decisions. Whilst the absence of comparable authorities is likely to make the already demanding task of arriving at the just sentence according to law yet more difficult, it does not leave open a wider range of permissible sentences than otherwise would be the case. The respondent's submission should therefore not be accepted." (Emphasis added.)

1. The plurality in Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 restated the process of sentencing at [34]:

"Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not be broken down into some set of component parts. As the plurality said in Wong v The Queen, '[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform' (original emphasis)." (Footnotes omitted.)

1. Thus, it can be seen that whilst the learned sentencing judge's discretion was no broader than in cases in which there were comparable sentencing decisions, he nonetheless generally had an extremely wide discretion to be exercised within the limits of the principles which are applicable.
2. However, as Brett J said in Daley (above) at [41]:

"... there is little to be gained by embarking on what is in reality a misconceived quasi-mathematical exercise of comparing individual sentences, adjusting for aggravating or mitigating factors which may or may not appear in the sentences under comparison, weighting same and then arriving at a position that a sentence was too high or too low by reference to such comparison."

This is essentially what the appellant's counsel, Ms Mainwaring, asks this Court to do by her submissions based on sentences imposed by judges of this Court in a small selection of vaguely similar cases not involving s 181 of the Code: Higgins, 22 July 2010; Dargis, 15 March 2011; Blair 15 April 2011; Broughton, 2 June 2011; Dawkins, 19 September 2013. Those cases are of no assistance to my mind.

1. I accept the submission of Ms Mason, counsel for the respondent, that the relevant aggravating factors included:
   • The crimes were not spontaneous but premeditated.
   • In making and placing the device, the appellant actually intended for it to operate as designed, namely to set fire to the house or to injure property.
   • The device that the appellant made was designed in a way that would increase the chance, and make it more likely that he would successfully achieve his aim of setting fire to the house.
   • The appellant's crimes were directed towards a public officer and were born out of a motive to take revenge on, or threaten or punish an officer, which arose solely as a result of that person carrying out the functions of his role as a child protection worker.
   • Child protection officers are particularly vulnerable because of the work they do.
   • The appellant was on bail for other offences at the time of the offending.
   • The potential endangerment to human life and property was obvious, given the nature of the device and its placement.
   • The intended victim and his wife now feel less safe even though they live in a new home.
2. In my view the learned sentencing judge was perfectly correct to say, as he did, that public officers, like the person who was the target of these crimes, do what they are employed to do and that the community as a whole has an interest in ensuring their safety and preserving the integrity of (in the case before his Honour), the child protection system. Likewise, his Honour was correct to say that the sentence he imposed must serve to vindicate the authority of such persons and reflect their entitlement to the protection of the law from attack by those who may be aggrieved by the performance of their function. It must be clearly understood by the community that vengeance upon public officers by disgruntled individuals who come within their purview will not be tolerated.
3. For those reasons I agree with his Honour that deterrence, denunciation and punishment were the dominant sentencing considerations. Those considerations outweighed the fact that prior to the appellant developing a methamphetamine addiction he was a productive member of society, and the fact that he had remained abstinent from drugs whilst remanded in custody and was desirous of rehabilitation. I accept Ms Mason's submission that although the appellant was not a first time youthful offender but an adult who could not claim the benefit of prior good character, the learned sentencing judge nonetheless, in setting the minimum non-parole period available, adequately took into account the potential for the appellant's rehabilitation.

1. It cannot, in my view, be said that his Honour's sentence was unreasonable or plainly unjust, and to my mind no error is apparent.
2. I would dismiss the appeal.