Police v Kevin Francis Barlow

Assessment of the Criminality 9The Sentencing Bench Book sets out: Destroying or damaging by fire encompasses a vast array of criminal behaviour, particularly under s 195(1)(b) : R v Pitt [2001] NSWCCA 156 at [29]. Factors relevant to assessing the objective seriousness of a given offence include: extent of the damage caused: R v Elzakhem [2008] NSWCCA 31 at [ 45 ]; Porter v R at [ 56 ]. For example, an offence may be considered serious where damage was done to a limited public resource such as public housing: R v Pitt at [27], or where it involved "substantial loss and personal stress" to small business owners: Porter v R at [ 83 ]. potential risk of injury to other people: Porter v R at [ 80 ]; R v Dinos [1999] NSWCCA 208 at [8]-[10] possible spread of the fire: R v Baker [2000] NSWCCA 85 at [16]: Porter v R at [ 80 ] offender's knowledge of the financial effects of their conduct. For example, where the property is uninsured: R v Priest [2000] NSWCCA 27 at [14]. offender's motive - although the lack of motive does not mitigate the seriousness of the crime: R v Porter at [ 81 ], [ 84 ] degree of planning and premeditation: R v Karibian [2007] NSWCCA 334 at [ 28 ], R v VAA [2006] NSWCCA 44 at [ 45 ]. 10In respect of the second fire (i.e. of 14 June 2010) the property was totally destroyed. As the property was on a farm with no other buildings or other dwellings nearby there was little risk to others. It was unlikely that the fire would have spread. Although there was some obvious planning required in respect of both offences, I am not satisfied beyond reasonable doubt that the level of planning in respect of either fire was any more than might ordinarily be expected in offences of this type. The evidence is that accelerant was not detected. The evidence was also that in respect of the second fire that had there been accelerant, it would have been totally consumed in the fire. However, in all of the circumstances I could not be satisfied that an accelerant was used in respect of either fire. No other aggravating factor within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 is present. 11I was not satisfied beyond reasonable doubt that the motive of the offender was to make a fraudulent claim on the relevant insurer. I am not able to find any particular motive beyond reasonable doubt. The actual motive is of little significance in this case. 12Given my finding of the value of the damage occasioned in the first fire, the matter falls well below the halfway mark on the scale of seriousness of such matters. 13An issue arose today as to the value of the dwelling that was destroyed in the second fire. The prosecution tendered a report prepared by Mr Robert Bowler of Cunningham Lindsay Australia Pty Limited, Chartered Loss Adjusters. Mr Bowler was one of the witnesses who gave evidence at the hearing. He estimates the value of the Building was $200,000. 14Mr Quilter, on behalf of the offender, took issue with this figure. He submitted that one need only look at the photographs tendered in the hearing to realise that the value was less than the $200,000. I offered to adjourn the sentence proceedings in order that this issue could be further, explored, but after consulting with his client Mr Quilter indicated that he wished to proceed to finalise the matter today. 15Given the evidence of Mr Bowler, noting his qualifications, and in the absence of any cross-examination or other evidence I have little alternative but to accept that the value of the building that was destroyed in the fire of 14 June 2010 was $200,000. In respect of the contents, I accept the submission of Mr Quilter that they would have been the property of the offender. I assess the matter relating to the fire on 14 June 2010 to be at or slightly above the halfway mark of objective seriousness.

Maximum Penalty 16The maximum penalty for both offences if dealt with on indictment is ten years imprisonment. Accordingly, the principles enunciated by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115 apply. In that decision Grove J (Spigelman CJ and Kirby J agreeing) said at [35]: The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'". 17I am of the opinion that the offence relating to the first fire can be conveniently and appropriately dealt with within the Local Court's jurisdictional limit. Given the extent of the damage the maximum penalty in respect of the first fire is 12 months imprisonment. I indicated in the course of taking sentence submissions that I was of the opinion that the first offence could be appropriately dealt with by way of section 9 Bond. Neither advocate sought to be heard in respect of that issue. 18However, I feel constrained to make clear that I am of the opinion that the appropriate total sentence in respect of charge relating to the fire on 14 June 2010 exceeds by some distance the Local Court's jurisdictional limit of two years. The prosecuting authorities apparently were of the view that the matter could be dealt with by the Local Court. The authorities, and indeed the community, must understand that matters such as this if left in the Local Court are subject to the jurisdictional constraints on the Local Court.

Matters of General Principle 19In the decision of the Victorian Court of Appeal in R v Mazur (2000) 113 A Crim R 67 Winneke P said at [27]: "...I agree with Brooking JA that courts imposing sentences for arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate". 20Brooking JA in that decision considered the earlier (Victorian) case of R v Perrone (1989) 43 A Crim R 366. His Honour said in Mazur at [24] that the decision in Perrone was wrong. However, his Honour went on to say in Mazur at [24] that: "To say this, of course, not to touch the proposition accepted in Perrone that in cases of arson a custodial sentence is not inevitable". 21My research has not found a decision of the New South Wales Court of Criminal Appeal that so succinctly states the matter of general principle. Mr Quilter has, however, referred me to the decision of Porter v R [2008] NSWCCA 145. In that decision Johnson J said at [81]: The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases.

Criminal History of the Offender 22His record assists the offender. I ignore the matters before 2008. In 2008 he was convicted and placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 for a common assault, and given the benefit of a section 10 bond for a driving offence.

Subjective Matters 23On 13 May 2011, I ordered the preparation of a pre-sentence report. I also indicated at that time that I was firmly of the opinion that there was no realistic alternative other than a lengthy sentence of full time custody, at least in respect of the offence relating to the fire on 14 June 2010. Through some administrative failures, the report was not completed. I have decided to deal with the matter in the absence of a pre sentence report. It is my firm view that the non-custodial sentencing options would be a manifestly inadequate disposition of the matter, at least in respect of the offence relating to the second fire. 24On the subject of Pre-Sentence Reports, in R v Olive [2006] NSWCCA 329 At [13], Bell J (as her Honour then was) (Tobias JA and Grove J agreeing) referred to the previous decision of R v Majors (1991) 27 NSWLR 624, in which Carruthers J observed at 627: "Adjournment of the sentencing process to enable the preparation of a pre sentence report should be confined to those cases where it is apparent to the judge that there is a clear and legitimate advantage to be obtained by this course." 25Bell J went on to say at [14]: "It is appropriate for the Court to direct the preparation of a pre sentence report in a case in which the Judge is of the opinion that an alternative to a sentence of full time custody may be within the range of appropriate sentencing dispositions: a number of sentencing options cannot be imposed unless the Court is satisfied that the offender is a suitable person to undertake them. In deciding whether to sentence an offender to a term to be served by way of periodic detention, or home detention, or to impose a community service order, the Court is required to have regard to the contents of an assessment report, and to such evidence from a probation and parole officer as to the Court considers necessary". 26The offender is represented by able and experienced Counsel. Mr Quilter has properly and thoroughly addressed me on all relevant subjective matters, I have proceeded on the basis that those matters also go to the issue of a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that I can pass sentence in this matter without a Pre-Sentence Report. 27Mr Quilter's primary submission was the second offence could be dealt with by way of suspended sentence. It is implicit in that submission that no other sentence other than a sentence of custody is appropriate - see R v Zamagias [2002] NSWCCA 17 at [24]-[25]. It was put that there is no judicial or legislative authority for the proposition that a full-time custodial sentence must be imposed for matters of the type on which I am passing sentence. However, it is obvious from the decisions from which I have extracted above that a sentence of full time custody would be starting point for the consideration of sentence for an offence of arson involving substantial loss or damage. 28Counsel for the offender advanced four reasons as to why any sentence should be suspended. These were the limited criminal history of the offender, the fact that it was unlikely that he would re offend, the subjective seriousness of the matter was such that a sentence of full time custody was not required and that he was spent a period of approximately 6 weeks in custody, being his first time in custody has been onerous. As I understood the submission, this submission was expanded upon in that that period in custody has served the purpose of specific deterrence. 29The offender certainly has very limited criminal antecedents. I have set out the relevant antecedents earlier in these remarks, and as found above he is assisted by his criminal record. 30However, to use an expression of Schmidt J in passing sentence in the matter of R v Williams [2011] NSWSC 583 "that the offender is unlikely to re offend, is in my view a conclusion that cannot readily be reached". For whatever reason the offender was prepared on two occasions to destroy the dwelling at "Carinya", and succeeded on the second attempt. The nature of the offence is such that some planning was required. There is no evidence from the offender or any expert. 31The third point essentially goes to the determination of the objective seriousness of the offence. It was put and I accept that so far as the second offence is concerned it was merely a house and not a home. It was essentially uninhabitable after the first fire. It was put and I accept that the Commonwealth Bank had just foreclosed. It was put and I accept (as found above) that there was no danger of the fire spreading. It was put and I accept that there was no ongoing loss as would be case had the premises been business premises and the proprietor precluded from carrying on the business. I have taken all of those factors into account in determining where the matter falls on the scale of objective seriousness. 32It is accepted that the offender has been in custody since 13 May 2011. A report from Samantha Ainsworth, Intern Psychologist at the Junee Correctional Centre was tendered. It sets out that Mr Barlow was placed on suicide watch from 16 to 20 May 2011, and again recently on 10 June 2011 because of uncertainty over these proceedings. 33The Report further details that he has been the victim of violence at the hand of other inmates. Mr Quilter informed me that he had spoken to the author of the report who informed him that at the time she spoke to Mr Barlow he had a black eye. There is no reason to doubt this. I briefly explored the issue of the reason for the violence. It was submitted that it was because of calls from outside the gaol. I could not be satisfied on the balance of probabilities that the violence inflicted was because of the matter on which I am passing sentence. 34Mr Quilter expanded the submission in respect of the fourth point he made in that given the age of the offender (55 years), the fact that this is his first time in custody, and that the 6 weeks he has spent in custody have not been easy for him he has undergone a real punishment, and accordingly the issue of specific deterrence has already been addressed. I accept that the offender is 55 and that given that fact taken with this being his first time in custody and what has occurred it has not been easy for the offender. However, it is timely to remind myself of what was said by the Court of Criminal Appeal in R v Dodd (1991) 57 A Crim R 349 at 354: Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594." 35The offender was employed in the rural industry at the time of the commission of the offences. It was submitted and I accept that the offender would have little difficulty obtaining work in that industry. Mr Quilter submitted and I accept that Mr Godde, who was the offender's employer at the time of the offence would be prepared to again employ the offender.

Prosecution submissions 36As I understood the situation the prosecution did not seek to be heard in respect of the proposed disposition of the first offence. However, the prosecution submitted that to suspend any sentence for the second offence would be to impose a sentence that was manifestly inadequate.

General Comments 37Any sentence imposed must reflect the objective seriousness of the offence - see R v Dodd (1991) 57 A Crim R 349 at 354. Dodd was affirmed by the Court of Criminal Appeal in R v Carroll [2008] NSWCCA 218 at [20]-[21]. Carroll of course successfully appealed to the High Court. However, there is nothing within the judgment of High Court that impacts on the affirmation of the earlier decision of Dodd. 38I must, offcourse, give proper effect to section 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. The purposes of punishment as prescribed in s 3A are: (a)to ensure that the offender is adequately punished for the offence, (b)to prevent crime by deterring the offender and other persons from committing similar offences, (c)to protect the community from the offender, (d)to promote the rehabilitation of the offender, (e)to make the offender accountable for his or her actions, (f)to denounce the conduct of the offender, and (g)to recognise the harm done to the victim of the crime and the community. 39It is an established principle of sentencing that the sentence imposed must be proportionate to the offence. I am of the opinion that given what I have found to be the damage occasioned by the first fire, that matter can be dealt with my a lengthy Bond to be of Good Behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. 40After careful consideration of the all of the objective and subjective material and the helpful and comprehensive submissions by Mr Quilter I remain firmly of the opinion that the only appropriate sentence in respect of the count relating to the fire on 14 June 2010 is a sentence of full time custody. The next issue is the length of the sentence. I have had regard to the statistics of matters dealt with in the Local Court of this type involving damage over $15,000. I have also had regard to the sentences imposed in the District Court for like offences. I caution myself about the use of those statistics - see for example Hili & Jones v The Queen [2010] HCA 45, R v Ryan (2003) 141 A Crim R 403 at 411, and Han v R [2009] NSWCCA 300 at [2]-[3]. I remain of the opinion that the appropriate total sentence exceeds the jurisdictional limit of this Court. 41On the issue of whether the sentence should be suspended I return to the decision of Zamagias . Howie J said at [32]: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 42In the matter relating to the fire on 14 June 2010 I am of the opinion that the need for general and specific deterrence, taken with the seriousness of the offending is such that the sentence should not be suspended. 43The issue that remains is special circumstances. No specific submission was put on this issue, however, I understood the submission of counsel for the offender that the secondary submission would be that given the matters advanced in mitigation they would amount to special circumstances. In this case where I have found that the appropriate total sentence exceeds the jurisdictional limit of this the issue of special circumstances takes on an added complexity. Given what I have determined to be the situation with the appropriate total sentence the offender has already had considerable leniency extended to him by having this matter dealt with in the Local Court. In R v Fidow [2004] NSWCCA 172 Spigelman CJ (Hulme & Admas JJ agreeing) said at [22]: "...Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson (at [68]) it is necessary that the circumstances be sufficiently special to justify a variation ". 44In the matter presently under consideration, I am not prepared to make a finding of special circumstances. The period on parole provided by the statutory ratio will in my opinion be a sufficient period for supervision, particularly in light of the fact that supervision by the Probation and Parole Service will also be a condition of the Bond that will shortly be imposed in respect of the count relating to the fire on 12 May 2010.

Formal Orders 45In respect of sequences 2 and 4 the offender is convicted. In respect of Sequence 2 (count relating to fire on 12 May 2010) consequent upon that conviction: The offender is released on a Bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of thirty months . Such bond is conditioned: (1)He be of good behaviour; (2)He appear for sentence in respect of any breach within that period; (3)For the period of the bond or such shorter period as might be deemed appropriate, he is to accept the supervision and guidance of the Probation and Parole Service; and (4)Notify this Court of any change of address. In respect of Sequence 4 (count relating to fire of 14 June 2010) the offender is: Sentenced to a non-parole period of 18 months from 13 May 2011, which will expire on 12 November 2012. Thereafter I specify a Balance of Term of 6 months to date from 13 November 2012 and expire on 12 May 2013. Magistrate G Lerve Albury Local Court 01 July 2011 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2011