R v Brymer [2016] ACTSC 194

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), s 33(1)(g)

R v Wrigley [2015] ACTSC 114

1. Johneric Brymer has pleaded guilty to one charge of arson contrary to s 404(1) of the Criminal Code 2002 (ACT), which carries a maximum penalty including imprisonment for 15 years.

2. The incident giving rise to this charge took place in January this year. Mr Brymer and his pregnant girlfriend met in Woden and had an argument about the results of a recent ultrasound relating to the pregnancy, apparently in the context of some dispute about whether Mr Brymer was the father of the child concerned.

3. I understand, and I note in passing, that his status as the father has since been confirmed and the child is to be born in the next few weeks.

4. The statement of facts describes the incident generally in the following terms.

5. As a result of the argument, Mr Brymer ripped up his partner's documents relating to the ultrasound, and took her mobile phone, while she left the location with Mr Brymer's Holden car key.

6. Mr Brymer caught a cab to his partner's residence. He let himself inside the home, sat on the couch in the living room and waited for her to arrive home. His partner's sister was asleep in one of the back bedrooms of the home at the time.

7. About 5.30pm, Mr Brymer's partner arrived home to find him sitting on her couch. She told him to get out of her house, saying: "Get out, I don't want you in my house, I thought I made that clear". Her sister heard the arguing with Mr Brymer and came out into the living room.

8. Mr Brymer asked his partner for his car key but she refused to return it to him, telling him to get out of her home. She asked Mr Brymer for her mobile phone and he pointed to the coffee table where the phone was sitting. His partner picked up the mobile phone and walked to her bedroom with her sister. The pair closed the door and Mr Brymer followed them, talking to his partner from outside the bedroom door. His partner's sister called the police.

9. Mr Brymer continued asking his partner for his car key but she wouldn't return it. Finally Mr Brymer said: "If you don't let me in, then I'll burn the fucking house down".

10. Mr Brymer then used a crème brulee torch to burn the carpet underneath the bedroom door, burning what is described as a large strip of carpet underneath the door. At the time, his partner was sitting behind the door, and she quickly moved away from the door when she heard the hissing sound of the torch and felt the heat from under the door.

11. Mr Brymer also used the torch to burn marks on the door lock and latch. As he was burning the carpet and door latch his partner called police again and informed them that Mr Brymer was attempting to burn the house down. The police operator advised her and her sister to exit the home through the bedroom window, and they did so.

12. A short time later police attended and observed Mr Brymer's partner and Mr Brymer outside the home ... They were standing several metres apart and the partner's sister was seen standing behind the back gate.

13. Police spoke to Mr Brymer's partner and her sister, and they showed police the burn marks and damage caused by the offender. Police observed a large strip of burnt carpet underneath the door of the main bedroom and two small burn marks around the door latch. Police took photographic images of those marks. Police also observed a number of fire lighting devices on the coffee table in the lounge room of the home. Police seized those items.

14. Mr Brymer made the following admissions to police:

because they refuse to give me the key, I grabbed a lighter, one of those lighters like you use for a crème brulee ... I burned the bottom of the carpet, at the bottom of the door, just inside her bedroom door... I was extremely frustrated and I hoped that they would believe I would burn the house, so they would come out of the room and I could talk to them, to get my key back. I know it's a terrible idea ... they didn't leave the room and told Police I was trying to burn the house down. I stopped and put the lighter back in the lounge room ..."

15. Mr Brymer was initially charged with arson with intent to endanger life, but pleaded guilty quickly when the charge was downgraded to simple arson. He spent a night in the watchhouse before being granted bail, and has spent two further nights in police custody after relatively minor breaches of bail conditions.

16. As well as the statement of the facts, the following material is in evidence before me:

(a) an AFP document relating to Mr Brymer's criminal history;

(b) a pre-sentence report dated 24 May 2016; and

(c) three photographs of the damage done by the offence;

all of which were tendered by the prosecution. The defence also relied on that evidence.

17. In considering the objective seriousness of the offence, I have had regard to the following matters.

18. First, I note that arson covers a multitude of sins, and that this particular arson was at the lower end of the spectrum of gravity.

19. Counsel referred me to the matter of R v Wrigley [2015] ACTSC 114, in which Refshauge J listed factors to be considered in sentencing for arson, including recognised aggravating features.[1] None of those aggravating features seems to be present in this case and I note, in particular, that there was no special risk of injury or serious harm to people beyond the inherent risk of that kind posed by all fires.

20. As indicated in the photographs in evidence before me, the fire, in fact, had a fairly minor impact on the carpet and door to which Mr Brymer had applied the crème brulee torch, and was probably not likely to have caused a more serious fire. On the other hand, it was engaged in with a view to frightening Mr Brymer's partner and her sister into coming out of the bedroom and talking to him, despite their reluctance.

21. The Crown conceded that there was no apparent premeditation in Mr Brymer's actions.

22. I note next that Mr Brymer's partner was, to Mr Brymer's knowledge, pregnant, but that none of the other particular factors relating to pregnant women mentioned in s 33(1)(g) of the Crimes (Sentencing) Act 2005 (ACT) appears to have been relevant in this case.

23. Mr Brymer expressed shame and disbelief about his actions to the pre-sentence report author, acknowledged the impact of his offending on his partner and her sister, and attributed his actions to poor judgment brought on by a heightened emotional state.

24. The actual damage to the carpet and door to which the torch was applied appears to have been relatively minor. There is no information before me about anything like repair costs.

25. This is a low-level example of an arson offence, although in saying that I note that one of the dangers about arson of any kind is that a fire, once started, may get out of hand in a way, and to an effect, that was never contemplated by the offender.

26. I have also had regard in this sentencing to Mr Brymer's subjective circumstances .

27. Mr Brymer is now 27. He has no criminal history in the ACT, nor apparently in New South Wales. That was all that was addressed in an AFP search sought by the DPP. Mr Brymer volunteered that about six years ago he was dealt with in Victoria for offences of drink-driving and driving an unregistered vehicle.

28. The pre-sentence report provides the following information about Mr Brymer's personal circumstances:

Mr Brymer advised his father had passed away when [Mr Brymer] was ten years of age. He described a close and supportive relationship with his mother, with whom he currently resides. Despite these assertions, it is noted that Mr Brymer's mother was initially unaware of his offending.

Although currently residing with his mother and younger sister, Mr Brymer was residing with his former partner, and victim, at the time of his offence.

Mr Brymer reported relocating between Melbourne and Canberra a number of times during the past five years, attributing his transience to connections with family and friends in both locations. He advised of no current plans to relocate.

Mr Brymer reported maintaining employment in the hospitality industry for a number of years, advising his employment was terminated following the commission of the current offence. At the time of writing this report, Mr Brymer advised he had recently obtained employment in a local café.

Mr Brymer described his alcohol consumption to be occasional with no problematic use.

[He] reported a history of illicit drug use. He described using cannabis on a monthly basis and occasional use of recreational drugs including ecstasy. Mr Brymer claimed nil illicit drug use in the past six months. Despite these assertions, concerns were raised by Mr Brymer's mother in relation to possible further illicit drug use, specifically methylamphetamine.

Mr Brymer reported he was in good physical health and advised of nil concerns in relation to his emotional or mental health. However, Mr Brymer's mother advised of a family history of mental health issues and expressed concerns for her son's well-being.

An ACT Health Report, dated 13 May 2016, confirms Mr Brymer's mother contacted that service on 9 March 2016 to express concerns regarding her son's mental health and illicit drug use. Despite several attempts, Mr Brymer was unable to be contacted for assessment.

29. The pre-sentence report author provided the following opinion:

Mr Brymer has been assessed as moderate to low risk of general reoffending. This result is predominantly due to his family supports, stable accommodation and employment.

Despite his assessed risk of moderate to low general reoffending, the serious nature of Mr Brymer's offending is of concern. As such, it is considered he may benefit from interventions targeted at cognitive skills and addressing anti-social attitudes.

30. I understand, in addition to the material in the pre-sentence report, that Mr Brymer has also undertaken some tertiary study, and may resume that in due course.

31. I further note the references to illicit drug use, but also that there is no suggestion that this offending was attributable to either drug or, for that matter, alcohol abuse.

32. General deterrence is of great importance in relation to arson, including for the reason I mentioned earlier, namely the uncontrollable nature of a fire once started. I have no reason to believe that Mr Brymer is in particular need of personal deterrence.

33. As already noted, Mr Brymer entered an early plea of guilty, which will be recognised by a sentencing discount.

34. I agree with the parties that a sentence of imprisonment is appropriate for this offence (given the significance of general deterrence in particular), but that it need not include any immediate full-time custody.

35. Mr Brymer, please stand. I record a conviction on the charge of arson.

36. I now sentence you to imprisonment for 9 months, reduced from 12 months for your plea of guilty.

37. The sentence will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months.

38. The good behaviour order is subject to the conditions:

(a) that you give security in the amount of $1,000 for your compliance with this good behaviour order (and you will understand you do not have to actually provide $1,000, but you must sign an undertaking to pay it if you breach the order);

(b) that for such period not exceeding 12 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or her delegate;

(c) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and

(d) that on or before the close of business on 11 July -you won't get there today, but tomorrow, 8 July, or Monday 11 July at the latest - you attend Corrective Services at Eclipse House to arrange your supervision.

39. Now, I have not backdated this sentence to take account of the three nights that Mr Brymer has spent in police custody, but I note that custody, which would be relevant should any breach of the good behaviour order put you at risk of serving any of the sentence in custody.

40. You will be given a written copy of the good behaviour order, Mr Brymer, and it will be read to you by the court officials. But in short, it means that for the next 12 months, you need to keep out of trouble and keep in contact with Corrective Services and do as your supervisor directs. If you commit another offence during that time, or if you otherwise breach your undertaking, you may find yourself back before this Court to be re-sentenced for this offence, as well as possibly losing your $1,000 security and, depending on exactly how you've breached the undertaking (if you've committed another significant offence, for instance), you could well find yourself serving some or all of the remaining part of your sentence, or all of your sentence in fact, in full-time custody.

41. If you have any particular questions about the effect of those orders, please ask the court officials or Mr Webb.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

[1] In R v Wrigley [2015] ACTSC 114, Refshauge J at [34] said:

A number of the principles may be established from the authorities as follows:

(i) aggravating circumstances include that the offence is committed at night (Thomas (1988) 10 Cr App R (S) 386), use of an accelerant (Turill (1981) 3 Cr App R (S) 156), the commission of the offence for financial gain, such as insurance fraud (Dowell at 116), commission of the offence for the purpose of revenge (Campbell v The Queen (Unreported, Supreme Court of Tasmania, Neasey, Nettlefold, Bettingham-Moore JJ, CA 76/1984, 7 September 1984) at p 4), commission of the offence for the purpose of destruction of evidence of other crimes (Riley v The Queen, Unreported, NSW Court of Criminal Appeal, 3 April 1996) at p 3; Targett v The Queen (Unreported, Supreme Court of Tasmania Court of Criminal Appeal, Cox CJ, Underwood and Slicer JJ, CCA 38 of 1996, 5 November 1996) at p 1) and the potential risk of injury to life or serious harm to persons, including fire-fighters (R v Glover [2002] NSWCCA 376 at [53]- [57]); Porter v R [2008] NSWCCA 145 at [80]);