Nasser v R

Has the applicant demonstrated that the sentence is manifestly excessive?

If the applicant is to succeed is his contention that the sentence imposed is manifestly excessive by being "unreasonable" or "plainly unjust", settled principle dictates that an examination of the circumstances of the offence and the personal circumstances of the applicant must compel the conclusion that there must have been some misapplication of principle or wrong exercise of the sentencing discretion even though patent error cannot be identified (see Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 371; and Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]). Whether the sentence imposed is manifestly excessive requires an examination of the circumstances of the offence and the personal circumstances of the offender (see Hili at [60]). Manifest excess is a conclusion only reached after undertaking an examination of a sentence in the context that there is no single correct sentence and that the exercise of the sentencing discretion is not a mathematical exercise (see Hili at [59]).
Mr Game SC did not take issue with the sentencing judge's assessment of the objective seriousness of the offending as "very serious" or that the offending was above the mid-range of offending for the conduct comprehended by a breach of s 197(1)(b) of the Crimes Act, to the extent that quantification of the objective seriousness was appropriate where no standard non-parole period attached to the offence. Neither was issue taken with the sentencing judge's finding that the offending was aggravated by being committed without regard for public safety as provided for in s 21A(2)(l) of the Crimes (Sentencing Procedure) Act. Mr Game also acknowledged that the immediacy and gravity of the actual risk of harm to the residents who were asleep in their beds above the seat of the fire when the petrol was ignited, and the extent of the applicant's appreciation of that risk, informed his moral culpability (see Saleib [2005] NSWCCA 85 at [51]-[57]).
Mr Game submitted however that the sentencing judge's emphasis on the applicant's level of awareness of risk (in the sense that his Honour was satisfied that he was at least reckless as to whether there were residents in the building when the petrol was ignited) and the extent to which the risk to their safety actually materialised, as evidenced by the measures taken by them to escape the fire, has converted the sentencing judge's assessment of the applicant's state of mind as an aspect of his lack of regard for public safety generally (an enquiry necessarily undertaken ex hypothesi) into a de facto extension of his criminal liability at the time he committed the offence, when neither recklessness as to endangerment of life and/or actual endangerment to life comprise the mental element of the offence under s 197(1)(b).
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. Rather, the question is whether the sentence of 6 years and 9 months with a non-parole period of 4 years and 5 months against a statutory maximum of 14 years is suggestive of an overstatement or wrong assessment of the applicant's actual culpability for the offence charged.
It is fundamental to the proper exercise of sentencing discretion that an offender's culpability is marked out referable to the constituent legal elements of the offence under consideration including, where relevant, considerations of features of aggravation or mitigation under s 21A of the Crimes (Sentencing Procedure) Act or at common law. In this case, an assessment of the applicant's culpability by his participation in the joint enterprise to destroy the supermarket and the means he and others employed to achieve that outcome necessarily included an assessment of the gravity of the risk to public safety, not only to the residents who were forced to escape the burning building but members of the public more generally. In my view, the applicant's culpability is of such high order that despite the sentencing judge's findings as to his troubled mental state at the time of the offending and his otherwise favourable subjective circumstances, I am not persuaded that the sentence imposed is unreasonable or plainly unjust.
Neither am I persuaded that the schedule of cases or the JIRS statistics to which the Court was referred lead to the conclusion that the sentence imposed is unreasonable or plainly unjust. While the sentence of imprisonment the applicant received is higher than those imposed in the published cases that have been located by the parties, that does not, of itself, mandate a finding that his sentence is manifestly excessive. As the Crown has pointed out and as the applicant's counsel fairly conceded, only two of the six reported cases that might be considered comparable in terms of objective seriousness included the risk to public safety as a feature of aggravation.
In R v Dinos [1999] NSWCCA 208 the offender was found guilty at trial of two offences: dishonestly destroy/damage property by fire and publish a false statement to obtain money. He was sentenced to 4 years imprisonment with a non-parole period of 3 years on count 1 and a fixed term of 9 months on count 2 to be served concurrently. The offender was a joint lessee of a chicken shop which was in financial trouble. He poured petrol around the shop and set it alight. The fire completely destroyed the shop and caused significant damage to adjoining premises in a total amount of $1.2 million. The sentencing judge observed that it was a miracle that no one was killed or seriously injured. The offender was 60 years old at the time of sentence and, aside from taking medication for depression, was not under any mental or physical disability. He had no prior convictions and was of prior good character. He had a very low risk of reoffending. There was a period of delay of almost seven years between the date of the offending and the date of sentencing. The sentence was not found by this Court to be manifestly excessive. Although that sentence was shorter than the sentence imposed upon the present applicant and imposed after trial, it was longer than any of the cases identified by the statistics before the Court in 1999. Simpson J, with whom Studdert J agreed, noted at [21] that a wide range of criminality and factual situations may exist with respect to arson offences, and a small statistical sample meant that the statistics were of no real assistance in determining the appeal. I am driven to the same conclusion on this appeal.
The only other potentially comparable case is R v Khan [2016] NSWSC 1073. In that case the offender was found guilty after trial of six offences: one count of murder, two counts of manslaughter, one count of recklessly causing grievous bodily harm, one count of reckless wounding and one count of destroy/damage property with a view to obtaining a gain contrary to s 197(1)(b) of the Crimes Act. The offender set fire to a convenience store he operated in Rozelle where three people who were living above the premises were killed, being unable to escape the fire, and two other residents injured as they made their escape. The offender was to benefit financially from the fire. The offence under s 197(1)(b) was aggravated because it was committed without regard to public safety however the impact of that factor in the assessment of the indicated sentence of 4 years was necessarily tempered to avoid the risk of double counting given the sentences that were indicated for the other offences were the direct consequence of that risk materialising in death and injury. The applicant was a person without a criminal history. There was no remorse. He was sentenced to a non-parole period of 30 years.
Given the very limited cohort of cases available for comparative purposes (there were only twelve cases in total included in the statistics dating from 1999, with only eight of those attracting sentences of full-time imprisonment), I do not consider it a meaningful exercise to approach the applicant's sentence as being at the top of an identifiable range of sentences for offending against the section. Although the sentence imposed after the discount for the plea of guilty is at the high end, it is, in my view, neither unreasonable nor plainly unjust having regard to the objective and subjective circumstances of this case.
It is not to the point that a lesser sentence might have been imposed at first instance or that this Court might have imposed a lesser sentence by giving less or more weight to one or more of the features of objective seriousness or the applicant's subjective circumstances (see Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [22]). The Court's consideration of a ground of appeal based on manifest excess is constrained by the fact that it may not substitute its own opinion for that of the sentencing judge merely because it 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 R (1999) 195 CLR 665; [1999] HCA 29 at [15]).
The order I propose is that leave to appeal be granted but the appeal dismissed.

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Cases Cited (16)

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