R v Arcus [2016] ACTSC 318

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - arson - damage to motor vehicles - strong subjective factors - Crimes (Sentencing) Act 2005 (ACT) s 35 and Ellis sentencing discount

Crimes (Sentencing) Act 2005 (ACT) s 33

Legal Aid ACT (Offender)

1. The offender is before the Court to be sentenced for five offences of arson contrary to s 404(1) of the Criminal Code 2002 (ACT) (Criminal Code). Arson carries a maximum penalty of 15 years' imprisonment and/or a fine of $225,000. Each offence was committed on 9 February 2016 when, in a brief course of conduct, the offender set fire to five vehicles in the Griffith-Narrabundah area.

2. On 8 February 2016 the offender had been drinking with friends at his temporary residence in Griffith. At about midnight he argued with his friends about obtaining money to purchase the drug "ice". The offender was a heavy user of methamphetamine, as were his acquaintances. The offender informed his friends that he would find a bicycle or another item to steal and obtain money for drugs by selling the bicycle.

3. At about 12.45 am on 9 February 2016 he began roaming the Griffith-Narrabundah area looking for a bicycle. He became increasingly angry as he was unable to find a bicycle to steal. As an emotional outlet, he began to set fire to cars.

4. The first vehicle that he ignited was a red Kia owned by Mr Birchall that had been parked on a nature strip outside a house in Griffith. The offender used his lighter to set fire to the right rear quarter panel bumper behind the right rear tyre. The offender left once the plastic began to drip off the bumper bar, confident that the vehicle would ignite.

5. He proceeded to Wills Street in Narrabundah, where he used a similar method to ignite a vehicle belonging to Mr Tosolini.

6. Around the corner, he located a vehicle that belonged to Ms Kingham or her husband. He used a similar method to set fire to the vehicle. He ignited the vehicle at a location where he hoped that the fire would travel under the vehicle to the fuel tank. The offender remained at the location to ensure that the vehicle ignited properly.

7. He then proceeded to Sturt Avenue, Narrabundah, where a vehicle belonging to Ms Haling was parked in the driveway. He used his lighter to ignite this vehicle, again setting fire to the right rear area where the guard came around on the bumper bar. This was the only vehicle in relation to which there was additional damage; the offender also scratched the car with the lighter.

8. Finally, he proceeded further down Sturt Avenue, Narrabundah, to where Ms Page's vehicle was parked in a carport and he set fire to that vehicle.

9. The offender felt emotional relief. As he was satisfied, he returned to the apartment.

10. The sound of the vehicles igniting caused alarm to the residents of Griffith and Narrabundah, many of whom contacted the police or fire brigade. The fire brigade attended and was able to extinguish the fires but, with the possible exception of one vehicle, the vehicles had to be written off. Most of the vehicles were of considerable value.

11. Police conducted patrols in the area, but were unable to identify the perpetrator.

12. About four weeks later, on 13 March 2016, the offender presented himself at the police station and confessed to at least several of the crimes. This was the only evidence concerning the identity of the perpetrator.

13. When the matter came to court there was a delay in the offender entering pleas of guilty, but that was not because he disavowed the offences; rather, it was because his legal representatives were obtaining advice concerning his mental health. Pleas were entered as soon as the position was clarified. That was not until the matter had been committed for trial in the Supreme Court. However, I will proceed on the basis that the offender entered pleas of guilty at the earliest reasonable opportunity and at no stage did he deny the relevant conduct.

14. The only evidence that the offender was the perpetrator was provided by the offender himself. In these circumstances, I consider that he should receive both a s 35 discount and an Ellis discount and the total discount should be about 40%; that is, a deduction of about 40% on the sentences that I would otherwise have imposed.

15. The offender has been in custody since 13 March 2016.

16. The offender is still a young man. He is only 20 years of age. He has had significant contact with the criminal justice system. Most recently, he served a sentence for offences of common assault and assault occasioning actual bodily harm committed in June 2015. He received a sentence of 12 months' imprisonment from 4 June 2015 with a nonparole period of six months. The sentence was imposed by the Goulburn Local Court. He was to be released on 3 December 2015 and parole was subject to a supervision condition recommending that mental health treatment be monitored. It follows that the offences for which I am to sentence the offender occurred in breach of his parole, while he was in the community on conditional liberty.

17. The Court has a report from the Court Alcohol and Drug Assessment Service and a pre-sentence report.

18. The offender was born in Canberra and raised in the Canberra and Cooma areas. He has a number of half-siblings. He had a very difficult childhood. Without going into detail, the home was marred by drug abuse, domestic violence, neglect and extreme and inappropriate discipline.

19. The offender experienced problems at school. He suffered from poor literacy skills but did complete Year 10. He was subjected to bullying, which had a dramatic effect on the offender's psyche. He remembers being impulsive and aggressive and Child Protection Services became involved. The involvement may have been due to the neglect and abuse levelled at the offender. It may, in part, have been due to the offender's difficult behaviour.

20. At the ages of nine and 12, the offender engaged in dangerous play involving fire.

21. He has a long history of psychological problems, reporting suicidal feelings from the age of 12. There is a history of self-harm and there have been four crisis admissions to hospital. In the past, the offender has received antidepressant medication. As a child, he was medicated for attention deficit hyperactivity disorder. The offender experiences an overwhelming sense of loneliness and, from time to time, ruminates about suicide. He has a long history of nightmares and he is fearful about going to sleep.

22. Since commencing heavy drug use in his teens (cannabis and methamphetamines) he has experienced psychotic symptoms involving the hearing of voices, often associated with lengthy periods of sleeplessness caused by taking methamphetamines. He has suffered from paranoia. In the period preceding the offences he self-harmed a number of times and had not slept for a long period. His psychological condition was very poor and he has no clear memory of his conduct on the night in question.

23. The offender proffered an insightful explanation for his conduct on the night in question to the psychiatrist, saying that he felt that the conduct was similar to the property destruction and domestic violence in which he has engaged in the past when angry and stressed. After engaging in angry and destructive behaviour, he has often felt better because his frustration has been relieved.

24. The offender has insight into his problems and wants to seek treatment and lead a normal life. However, because he is a loner, he is reluctant to participate in group programs, making some types of treatment difficult. At page 8 of the forensic psychiatric report, the author states:

Mr Arcus is a man who is both troubled and troubling. His emotional distress and turmoil occasionally results in violence against himself, but all too frequently it seems to result in violence and aggressive behaviour acting out against others. He would meet the criteria for antisocial and borderline personality traits. He also meets the criteria for substance use disorder particularly methamphetamine.

He appears to be motivated to seek treatment but there are a number of relative barriers to his effective participation particularly in group programs given his interpersonal sensitivity and poor interpersonal skills. I do not think that Mr Arcus presents with a prolonged pattern of problematic fire setting. My formulation of this offence is of a young man distressed, intoxicated with drugs, lonely and acting out which is a similar pattern which appears to have been consistent across his lifespan.

25. The author then goes on to note that there are no currently active signs of psychotic illness and to attribute psychotic symptoms to the use of drugs. Finally, the author notes the lack of practical support and stable accommodation.

26. The author of the pre-sentence report assesses the offender as at high risk of reoffending and as having multiple criminogenic risks that need to be addressed in order to reduce the risk of reoffending. There is no doubt that that assessment is correct.

27. It is, in one sense, unfortunate that there is little scope in this sentencing exercise to provide the support that the offender obviously needs to deal with his psychological problems and very deeply entrenched substance abuse. All parties agree that some sort of sentence of imprisonment is the only appropriate sentence. The fact that the offender has been in custody since March this year should be seen in that context.

28. I did canvass with counsel the possibility of an intensive corrections order. However, given the length of sentence that is appropriate because of the objective and subjective circumstances, an intensive corrections order is not realistic.

29. It is very likely that the offender will be extradited to New South Wales, a warrant has been issued.

30. I propose to pass the appropriate sentences and, in relation to the period that has not been served, to suspend the sentence on the offender entering into a good behaviour order. If he is not removed to New South Wales, he will have access to supervision in this jurisdiction.

31. In sentencing the offender I have regard to the sentencing purposes, particularly the purposes of punishment, accountability and rehabilitation. Rehabilitation is very important given his multiple problems and youth. I also have regard to the matters mentioned in s 33 of the Crimes (Sentencing) Act 2005 (ACT).

32. In relation to each offence, the offender is convicted. For the first offence, he would have been sentenced to nine months' imprisonment, but after reducing that by about 40% for the plea of guilty and the Ellis factor, he is sentenced to five months' imprisonment from 13 March 2016 to 12 August 2016.

33. In relation to the second matter which concerns the vehicle owned by Mr Tosolini, on the same basis, he is sentenced to five months' imprisonment from 26 May to 25 October 2016.

34. For the third offence involving the Kingham vehicle, he is sentenced to imprisonment for five months from 1 August 2016 to 31 December 2016.

35. For the fourth offence he is sentenced to five months' imprisonment from 1 October 2016 to 28 February 2017.

36. For the final offence, where the value of the loss was significantly lower, he is sentenced to three months' imprisonment from 1 December 2016 to 28 February 2017.

37. The total period of the sentences is 13 March 2016 to 28 February 2017.

38. From next Tuesday, 25 October 2016, the outstanding parts of the sentences on charges 3 and 4 are suspended. I make a suspended sentence order in relation to the whole of the sentence for charge 5. I make a good behaviour order for a period of eight months from 25 October 2016.

39. The good behaviour order is subject to the conditions that:

(a) The offender do his best to report within one working day of his release to Corrective Services at Eclipse House; and,

(b) Thereafter he is to accept their supervision for the whole of the period of the good behaviour order.

(a) An order in favour of Mr Daniel Tosolini in the sum of $500.

(b) An order in favour of Mr Richard Kingham in the sum of $650.

(c) An order in favour of Ms Jennifer Haling in the sum of $650.

(d) An order in favour of Ms Tamara Page in the sum of $1,389.95.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.