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: