R v Buckle [2005] VSCA 98

1 I will ask Vincent, J.A. to deliver the first judgment.

2 The appellant pleaded guilty in the County Court, sitting at Horsham, on 4 May 2004, to one count of possessing an explosive substance with intent to cause serious injury to property. This offence arises under s. 317(3)(b) of the Crimes Act 1958 and carries a maximum applicable penalty of 10 years imprisonment.[1]

3 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 11 August 2004, imposed upon him a sentence of imprisonment for six years, in respect of which he fixed a non-parole period of three years and six months.

4 Having been granted leave to do so by a judge of this Court, the appellant seeks to overturn that sentence. The full statement of the grounds upon which reliance has been placed by him reads:

"1. That the sentence imposed was, in all the circumstances manifestly excessive.

2. That the learned sentencing judge erred in his classification of the [appellant's] offence within the range set out in s.317(3) of the Crimes Act.

3. That the learned sentencing judge erred in his findings as to the damage that would have been caused by the [appellant's] conduct.

4. That the learned sentencing judge failed to give adequate weight to the matters in mitigation, including -

The Background

5 The following description of the circumstances surrounding the appellant's offending has been prepared from the summary of evidence provided to the Court and the learned sentencing judge's remarks when imposing sentence.

6 As a result of information received, police from Geelong had, for some time prior to 7 June 2003, been conducting surveillance on the appellant's home and business premises in Geelong, where he carried on business as a stonemason.

7 On that day, he was seen dumping a number of items in the Geelong Botanical Gardens. They included masking tape, electrical wires, assorted match-boxes, sparkler packets, fuse wires and automotive globes, and constituted discarded material in relation to an explosive device that he was apparently in the course of building and subsequently intending to explode in Stawell.

8 It appears that the appellant had developed an obsession and a strong dislike for the proprietor of another stonemason business, Kevin Waites, and against whom, for several months at least, he had harboured hostile intent. The origin of this antipathy is somewhat unclear. The two men had met, or spoken at least, on only two or three occasions, and there is nothing in the material which would provide any foundation for the appellant's attitude towards him. The extent of this animosity towards Mr Waites can be gauged from an entry on the appellant's computer made in August 2002:

"You have heard of the stonemason called Kevin Waites in our area. If you have, then you know what a cunt he is and one of these memorials is for him."

9 The antipathy appears to have been related, however, to an occasion on which Waites became a witness in proceedings before the Victorian Civil and Administrative Tribunal, in which the appellant had become embroiled, and related to a dispute between the appellant and a client of his business. Mr Waites also operated as a stonemason. He carried on business in Geelong and in other Victorian towns, in particular Stawell, where a factory was operated by him at 2 Main Street, Stawell. Those premises were located proximate to Central Park in Stawell and had plant and equipment valued at over $1 million.

10 By June 2003, the appellant's obsession with Mr Waites crystallised into a plan to cause hurt or harm to him through the destruction of his Stawell premises. To that end, he constructed the elements or components of a bomb in Geelong, which he then transported to Stawell by motor car on the night of 7 June 2003. Fortunately, as I have mentioned, by this stage the police were monitoring and observing his movements and were able to prevent his plan being implemented.

11 At 12.07 a.m. on the day of the offence, he was seen to carry objects across Central Park in the direction of the premises of Mr Waites and the adjacent Stawell Gift Hall of Fame building. A little later, he was seen to push a wheelie bin across the oval in the same direction. The appellant was arrested in the vicinity of the gate, giving access to the stonemason's premises, that he had opened.

12 He was wearing disposable coveralls, gumboots and gloves, and had with him a 20-litre container of petrol and a black balaclava. Inside the gate he had placed a backpack containing a battery and pump and a garden hose nozzle, together with a clear plastic hose. This, the sentencing judge found, was apparently to be used to spray petrol in the premises, prior to the ignition of the LPG gas from bottles found in the wheelie bin. He was also equipped with a walkie-talkie and remote control device which constituted part of the detonation system for the bomb that he had constructed.

13 It is evident, from the many items in the possession of the appellant when arrested, that there had been considerable planning and preparation for this night, and he had obviously had to travel a considerable distance from his home in order to implement his design.

14 The police Bomb Squad dismantled and made safe the contents of the wheelie bin. The components of the bomb were examined by a police arson scientist, who described it as "a radio-controlled fuel-air explosive device".

15 The sentencing judge found that the fire and explosion that would have resulted, had the bomb been detonated, would have destroyed the stonemason's premises, its contents, the Stawell Gift Hall of Fame and its contents, and caused extensive property damage to the surrounding area up to a kilometre from the blast site. He further stated:

"It appears that in addition to the extensive property damage you intended to cause and would have caused, there was a grave risk to persons in the area from your conduct. I note that your plea of guilty acknowledges only an intent to damage property but although you may not have considered the potential dangers to persons, it is clear that the hundred or so patrons of the nearby Gift Hotel were at enormous risk of death and/or serious injury.

It is possible that you would have been killed or injured when the bomb was detonated. In addition there were numerous private residences in the vicinity which would have been extensively damaged and the occupants were at serious personal risk."[2]

This assessment of the potential consequences of the detonation of the bomb, constructed by the appellant, is the subject of ground 2 of the Grounds of Appeal. It is, I think, appropriate to address this matter first.

The Grounds

16 In support of the claim that his Honour overstated the likely result of the detonation of the appellant's bomb inside Mr Waites's factory, the attention of the Court was directed to the report of Mr John Kelleher, a scientist employed by the Victoria Police Forensic Science Centre, upon which his Honour's finding was presumably based. Relevantly, that report reads:

"The effectiveness of this device is obviously dependent on the amount of fuel involved. Assuming that 80 litres of petrol were available, with 20 litres spread as liquid by the small (box) pump and 60 litres sprayed by the larger (backpack pump), there was sufficient fuel present to ignite an area of five thousand to ten thousand square metres or more. The fact that a spray system was involved would mean that a fuel-air explosion of some type was inevitable. This would be considerably enhanced if liquid petroleum gas was present.

The resulting fire and explosion would be fatal to any person in the immediate vicinity. The extent of the hazard area would be dependent on the efficiency of distribution of the fuel, but unprotected persons within several hundred metres would be at grave risk. The rather limited range of the improvised firing mechanism presents a significant problem for the user, in that it requires the firing point to be considerably closer than reasonable caution would dictate. If ignited in a building, most premises would be destroyed by the fire and explosion. With a substantial fuel-air explosion, property damage beyond one kilometre would be minimal, and this could properly be regarded as a safe distance."

17 There is force in the submission by Mr Tehan that his Honour's findings, as to the extent of the damage which would have resulted had the appellant been successful in his endeavours were not fully supportable on the material before him, in that he appears to have accepted as inevitable damage and injury that the expert treated only as possible. However, I am by no means persuaded that his underlying appreciation of the appalling risk to which persons and property in the general vicinity would have been exposed was exaggerated.

18 The evidence supported the finding that the stonemason premises would have been destroyed. As I understand the position, the value of the equipment, machinery, vehicles and buildings at that site was approximately $1,067,750. The risk of damage to the nearby Gift Hall of Fame must, on any view of the matter, be regarded as extremely high. The value of that building and its contents has been assessed at over $400,000, disregarding the significance of irreplaceable memorabilia housed there. The area surrounding the Waites Robson premises contains a mixture of industrial, shopping and residential properties, six churches, a primary school, the Stawell railway station and other buildings. Only a short distance from the site of the intended blast was an hotel in which approximately one hundred people were gathered at the time. The consequences of detonation were potentially horrendous. It is hardly surprising that his Honour placed emphasis upon this consideration. His overstatement of the evidence before him was unfortunate but cannot be seen to be productive of error justifying the intervention of this Court. And even if one adopts what might be regarded as a minimum interpretation of the opinion expressed by Mr Kelleher, the consequences of the detonation of the bomb would have been appalling.

19 Whilst, as I have indicated, his Honour did perhaps fall into factual error on this aspect, I do not consider that that would justify the intervention of the Court or result in the imposition of a lesser sentence. However, it is necessary to consider whether the error may have contributed to the imposition of a manifestly excessive sentence or had caused the judge to err, in the sense that it may have resulted in the judge undervaluing the importance of various factors operating in mitigation of penalty.

20 Accordingly, I will now turn to consider appeal ground 1, treating the other grounds as particulars supporting that claim.

21 In support of the contention that the sentence imposed upon the appellant was manifestly excessive, reliance was placed by Mr Tehan upon a number of arguments.

22 First, it was contended that s.317 of the Crimes Act, and specifically s.317(3), addresses a variety of situations, ranging, for example, from those in which an explosion actually takes place that causes physical injury to a person, to those in which no explosion happens, but the intention of the perpetrator is to cause property damage. It was pointed out that the sentencing judge at one stage in the course of the plea indicated that "It's hard to think of anything worse than this offence." However, when counsel appearing before him at that time pointed out that one of the circumstances contemplated was the intention to endanger life, his Honour responded, "I see your point."

23 In his written submissions, although he seemed to be somewhat reticent about adopting so generous a view of his Honour's comments before us, Mr Tehan accepted that, based upon his Honour's subsequent remarks, he appeared to have regard to counsel's submissions on this aspect, but nevertheless, he contended, the sentence did not suggest that any real effect was given to them.

24 True it is that, as a general proposition, the possession of an intention to cause personal injury through the detonation of an explosive device would be viewed as attracting a very high level of culpability and assume considerable significance as a sentencing consideration, it simply does not follow that sentences approaching the maximum permissible under the section may not be entirely appropriate in cases where the intention of the perpetrator was to cause damage to property. The section itself contains no hierarchy of circumstances, and the seriousness of an offender's conduct in individual cases must, as is almost always the situation under the criminal law, be viewed in the light of all of the circumstances relating to the offence and offender involved. In the present case, the intention of the appellant was to cause extremely serious injury to the property of Mr Waites. The seriousness of his conduct would, one would ordinarily anticipate, be regarded as attracting a sentence of a high order among those available.

25 Acknowledging that a judge who refers to his own decisions relies on very poor authority, I have had occasion to consider the relationship between the intention with which an offender has acted and the consequences which in fact flowed from that conduct. In the case of Mallinder[3], the question arose in the context of extraordinarily serious actual consequences and the imposition by a sentencing judge of the maximum penalty available. In that case, I endeavoured to draw the threads of intention and consequences together. In this case, by reason of his interception by the police, no damage or injury of a physical character was occasioned, although one cannot ignore the impact of the appellant's behaviour upon his victims as indicated in the victim impact statements. However, the appellant intended to cause great harm to the target property, induce hurt through that means to human victims, and the potential consequences of his actions, whether considered by reference to personal property damage, the impact upon those who owned that property, or, more importantly, perhaps the risk that he posed to the lives and personal safety of a great many people in the general area, must be and was properly taken into account by the sentencing judge. The appellant's behaviour was appropriately regarded by his Honour as constituting a very serious example of the offence established by s.317(3) of the Crimes Act. I note in this context his Honour's remark when handing down sentence:

"Your actions are almost inexplicable and strike at the very heart of our community and its laws and values. At a time when the world recoils from almost daily acts of terror and violence, your actions must be seen as an extremely serious example of callous criminal conduct. Nothing other than a substantial period of imprisonment is appropriate for conduct such as yours."[4]

26 I am unpersuaded that his Honour may have fallen into error in his assessment of the seriousness of the appellant's offending, or that, somehow or other, he elevated the significance of that conduct, measured by reference to the terms of s.317(3), to a level which was inappropriate in the circumstances.

27 Next in the context of his argument with respect to manifest excess, Mr Tehan contended that, as his Honour had over-estimated the potential damage that could result from the detonation of the appellant's bomb, his sentence could be perceived as contaminated by that finding, and this in turn could have contributed to a failure to attribute appropriate weight to factors militating in favour of mitigation of penalty. I think that I have addressed that aspect sufficiently in the remarks that I have already made.

28 Finally, he argued that it is evident from the sentence imposed that the sentencing judge failed to attribute full weight to:

(b) his finding that the appellant had experienced genuine remorse for his conduct;

(c) his finding that the appellant was a person with no prior convictions, of good reputation and previous good character.

29 I would point out at this stage that the appellant was, at the time of the commission of this offence, 52 years of age. He was married to a person who was accepted by his Honour as an extremely supportive wife. He had three teenage children, an excellent work record and, as his Honour found, had been to that point of time a valuable member of the community.

30 The next of these matters were:

(d) the appellant's good prospects of rehabilitation; and

(e) the mental state of the appellant at the time of the commission of the offences.

31 Acknowledging that his Honour referred specifically to each of these factors and stated that he had taken them into account in the appellant's favour, Mr Tehan contended that the sentence imposed indicated that proper weight could not have been attributed to them.

32 I do not consider that I need set out seriatim his Honour's references to each of these factors. What is apparent from his remarks is that he paid careful attention to each of them. The measure of care which he exercised is easily demonstrated by reference to the manner in which he approached the question of the mental state of the appellant at the time of the commission of his offence. He stated on this aspect:

"Because of the difficulties I experienced in gaining an understanding of the true motivation for your conduct, I requested full psychiatric and pre-sentence reports at the conclusion of the plea made on your behalf in Horsham. The pre-sentence report indicates that you are at a low risk to re-offend and have extensive insight and remorse in relation to your finding. I take the matters set out in that report into account in sentencing you, however the seriousness of your offence makes it impossible for me to accept the suggested community based disposition.

The psychiatric report of Dr Adam Deacon (Exhibit F) is of particular assistance to me. Your personal relevant history and psychiatric history is succinctly set out. I take all relevant matters contained in this report into account in sentencing you. The assistance I have gained has led me to reduce the sentence I would otherwise have imposed.

It is clear that you realised you had problems. You sought help but unfortunately failed to properly engage with your therapist and subsequently ceased your medication. I refer to p.5 paragraph 3 of this report where Dr Deacon says:

'During the months prior to the alleged offence it is highly likely that Mr Buckle's mental state deteriorated such that his depressive illness has features of marked paranoia. In this period his awareness and sensitivity for reality was probably impaired to such an extent that it could be considered he was experiencing psychosis. Additionally his capacity for reasoning appears to have been at least partly compromised to such an extent that his decision making and behaviour were uncharacteristically unusual and irrational.'

Because of the issue raised in this report I propose to impose a significantly shorter minimum term than I would otherwise impose. I take into account in particular the evidence that indicates that you are unlikely to re-offend and the need for future intensive treatment. You I believe will benefit from a lengthy period on parole. I take into account all factors relevant on your behalf in sentencing you and I balance the need for general deterrence with the factors personal to you.

I will direct that copies of all exhibits in this case, together with the sentencing remarks, be provided to the prison authorities in the hope that you will receive ongoing psychological and psychiatric assistance whilst in prison and whilst on parole."[5]

Indeed, it was as a consequence of his Honour's concern to ensure that he took properly into account issues relating to the mental state of the appellant, and to gain what he described as "an understanding of the true motivation" for the appellant's conduct, that he secured full psychiatric and pre-sentence reports on those aspects.

Mr Tehan submitted that, whilst that may well have been the case, it was apparent, on the totality of the material, that his client was psychotic at the time of his offences and that that mental state must be seen to have contributed to what was quite extraordinary behaviour. He also drew attention to the judgment of this Court in Tsiaras[6], in which it is also made clear that a person who is suffering from a significant mental illness, whether or not that illness contributes to the commission of the offence, may not appropriately be the subject of a sentence incorporating a significant factor of general deterrence.

33 In my view, it is apparent from consideration of the sentencing judge's remarks that he endeavoured to effect a proper balance of the competing considerations in the sentence that he had to hand down. There is nothing in his remarks which contains or implies error in his performance of this task. The head sentence was clearly within the range available to him, even allowing for all of the factors advanced in mitigation. I would add that, were it not for the presence of those factors, a significantly higher sentence would have been called for. The appellant's conduct was of a highly culpable character. He intended to cause very considerable property damage. He exposed a great number of people not only to that risk but also to the risk of death and serious injury. The significance attributed by his Honour to the element of general deterrence, even allowing for moderation by reason of the appellant's mental state, which has been criticised by Mr Tehan, was entirely appropriate in the circumstances. I reject the contention that, when regard is had to the head sentence handed down in this case, his Honour can be seen to have taken the factors militating in favour of mitigation of penalty into account only when

considering the minimum term to be imposed. It is, of course, clear that his Honour placed a deal of emphasis upon those matters in accordance with his duty in the circumstances, both in terms of the head sentence imposed and the non-parole period fixed.

34 In summary, I would dismiss this appeal.

37 The order of the Court therefore is that the appeal be dismissed.

[1] Section 317

(3) Any person who unlawfully and maliciously -

...

(b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property -

shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum).

[2] Sentence T67.

[3] (1986) 23 A.Crim.R. 179

[4] Sentence T68.

[5] Sentence T71-72.

[6] [1996] VicRp 26; [1996] 1 V.R. 398