Sentencing judge's findings
19In respect of the objective circumstances of the offence, the sentencing judge observed (remarks on sentence, pp.11 to 12):-
"... The offence with which the offender has been charged is, of course, objectively very serious, resulting in substantial financial loss to an insurer and an owner of goods who was under-insured. It is an offence attracting a maximum penalty of fourteen years imprisonment. ... The serious indictable offence committed, once he broke and entered those premises, is one of the most serious in the criminal calendar for offences committed within this particular section of the Crimes Act with the exception perhaps of sexual assault type matters.
The motive for entering the premises was one of causing disruption to his employer with whom he was disgruntled. As to why he lit the fires, it is difficult to understand. But when one looks at his background and his emotional immaturity, his offending behaviour is no doubt linked, in some way, to his upbringing and his inability to control his emotions.
I am satisfied beyond reasonable doubt that his motivation was to seek to punish his employer, with whom he says he had a grievance, at the way he had been treated since appearing in the Local Court and being placed on the suspended sentence. I am not persuaded that the death of his brother had any impact upon him at the time he committed this offence. There can be no dispute his brother was killed seven days after this event ... Nor am I persuaded that the miscarriage suffered by his girlfriend a week or so prior to this fire had any impact upon his emotional wellbeing sufficient to cause him to consume an excessive quantity of alcohol and to commit this most serious offence.
The fire had a potential to cause significant damage to other premises in addition to the premises damaged. Perhaps, fortunately, in the early hours of the morning, few people would have been around. But certainly the lives of the fire crew who attended were put at risk. This was a dry cleaning business which no doubt had stores of cleaning products or chemicals which would have been highly inflammable."
20The sentencing judge stated that there could be no doubt whatsoever that the applicant's actions in setting fire to the premises were deliberate, in as much as he lit three seats of fire to ensure that the premises burned. Her Honour added:-
"... It may well be that his original intention was not to set fire to the place, but certainly by the time he did, he was demonstrating recklessness of a very high order if his intention was indeed, as he simply stated, to 'trash' the premises."
21The sentencing judge reviewed in some detail the relevant subjective factors. Her Honour noted that he was 23 years of age at the time of sentence. He had been referred to a Ms Kristie Gillespie, a psychologist, for assessment by his solicitor.
22The sentencing judge also noted that the applicant had been brought up in a physically and emotionally abusive family and suffered greatly at the hands of both parents, both of whom had significant drug and alcohol problems.
23He was diagnosed with ADHD at the age of six and was prescribed Dexamphetamine. He gave a history of poor concentration, was fidgety and easily frustrated, hyperactive and impulsive. The medication when taken apparently helped him manage his symptoms.
24The sentencing judge noted, however, that he was reported as demonstrating poor compliance with his medication regime. In consequence, his education had been adversely affected and resulted in his expulsion from school in Year 9. He has since completed the Year 10 School Certificate through a Juvenile Justice programme.
25The applicant gave a history to Ms Gillespie of issues with his employer, who was the victim of the fire. He stated that he thought his employer was humiliating him and embarrassing him in front of customers. He also said he was angry about unfair work conditions.
26The sentencing judge also had regard to the results of intelligence testing by Ms Gillespie which disclosed an IQ in the average range, although at the low end. His verbal IQ and performance scale IQ were noted as being at the lower end of the average range. He displayed poor general knowledge and his working memory and processing speeds were said to be particularly poor, a likely reflection, her Honour noted, of his limited education and lack of exposure to learning.
27It was noted that the applicant had been diagnosed with Erland Syndrome, which is a visual perception processing problem often misdiagnosed as dyslexia.
28The sentencing judge further observed that the applicant met the criteria for someone suffering from post-traumatic stress disorder as a result of his childhood. Ms Gillespie expressed the opinion that he is profoundly emotionally disturbed as a result of his childhood trauma and abuse and requires significance assistance.
29The sentencing judge rejected his evidence that he had no recall of the events in light of the electronically recorded material that disclosed a significant memory of his actions at the time that he lit the fires and how damage was caused.
30Aggravating factors were said to be, firstly, the damage as a result of the offences which was substantial and, secondly, the fact that the applicant was on conditional liberty at the time.
31Her Honour noted that the applicant's criminal antecedents, though not aggravating the offence, precluded any leniency that might otherwise be extended to him.
32Her Honour allowed, by way of mitigation for the applicant's plea of guilty, a discount of 10%.
33Her Honour stated that she was unable to find the applicant remorseful or contrite and that his prospects for rehabilitation were only fair. She considered that he had been less than truthful with the psychologist and had also misled the Court.
34A finding of special circumstances was made.