R v Cairns

About 5am the applicant and his two friends arrived at the house. Initially they sought to attack a car parked in the grounds of the house but to no avail. The applicant, with his lighter, lit the cloth protruding from one of the bottles containing petrol and threw that bottle, a large heavy one, through a window into the front section of the house. One of the other youths threw the other bottle. They saw a fire start and left.

The judge sentenced the applicant on the basis that he thought someone would put the fire out prior to substantial damage occurring. The applicant said he had no knowledge of whether there was anyone in the house. It was fortunate that at the time of the fire no-one was in the house.

In his record of interview of 5 September 2002 the applicant said that neither he nor anyone who was present made any effort to determine whether someone was home in the Wakeling house. The fire destroyed the interior of the house which had to be demolished. The cost of rebuilding was $350,000 to $400,000. This cost was covered by insurance but nevertheless it involved a substantial loss for the insurance company. There was no insurance on the contents; the estimated value of the lost contents was $88,000. Personal effects of unquantifiable value were lost and considerable distress and trauma were caused to the members of the Wakeling family.

Mr Wakeling Snr was working in India at the time and his wife was with him. They had to return from India to deal with the sequelae arising from the fire. Mrs Wakeling ended up having to spend a lengthy period in Australia supervising the rebuilding of the home. Mark Wakeling's university studies were disrupted and he lost a year. The victim impact statement reveals the very serious effects which this crime had upon the members of the Wakeling family.

The applicant was arrested on 5 September 2002. The arrest came about as a result of police investigation of the threatening telephone calls previously made by the applicant to Mark Wakeling and two subsequent calls in which the applicant spoke about the threatening calls and the fire.

At his recorded police interview the applicant confessed to the crime but refused to name the friends who were with him. Subsequently, on 6 December 2002 the applicant told police the names of his two close friends who were the other two persons with him when the crime was committed, and undertook to give evidence against them.

The Crown accepted that this assistance was valuable as it identified the co-offenders. At the date of sentencing neither of the co-offenders had been charged and so far as we know still have not been charged. The Crown did not appear to have any valuable admissions from either of them from intercept material. The delay in notifying the police of the co-offenders made prosecution of them more difficult.

The applicant had no criminal record at the time of the offence. The judge took into account the applicant's youth, his early plea of guilty and his previous good character, and accepted that the applicant had expressed remorse. The judge thought that the applicant was not likely to re-offend.

Despite the applicant's immaturity for his years and consumption of alcohol the judge was not prepared to accept that the applicant was not aware of the consequences of his acts and noted that he had retained the capacity to plan with others the execution of the offence.

In his recorded interview of 5 September 2002 the applicant in response to a question why did he go to the house at 3 Ellison Place, Pymble, said " …I was, umm, drinking, drank a lot of alcohol, very stupid. it was straightaway … I blame it on my drinking but just can't blame it on that."

Later he said: "I don't blame it on the drinking because you can't blame it on the drink. I said that as, uh, I don't know the word for that, umm, if I wasn't drinking it wouldn't have happened but I don't blame it on that. I blame it on myself, like the alcohol didn't make me do it. I did it." There is evidence that the applicant has difficulty in expressing himself adequately.

The judge found that the offence was committed without regard for public safety, that there was a degree of planning, that this included a decision to obtain incendiary devices and leave Hassell Park and obtaining petrol and wicks from the home of one of the co-offenders. It also involved taking the car of the mother of one of the co-offender's out of her premises, obtaining bottles from a recycling bin and locating the victim's premises. To this extent the offence was part of a planned and organised criminal activity.

The judge found that the offender has good prospects of rehabilitation. The pre-sentence report indicated that the applicant would respond well to supervision and individual counselling in addition to participation in a drug and alcohol programme administered by the Probation and Parole Service.

The pre-sentence report of the Probation and Parole Service contains these paragraphs: "It would appear that the offender has had a relatively stable upbringing and supportive parents. There were indications, however, that a family history of alcohol abuse has had an adverse effect on the offender .

Mr Cairns had previously engaged in heavy alcohol use which he now views as problematic. He reports to have taken steps towards addressing these issues through attendance at Alcoholics Anonymous meetings. Mr Cairns appeared to acknowledge the seriousness of his offence and wished to formally apologise to the victim." 20. There are two reports from Dr T.O. Clark, consultant forensic psychiatrist. Dr Clark reported that the applicant shows no signs of a psychosis, that his IQ was quite patchy "in that he has normal abilities in some directions, but in his speech and his language he has the expressive dysphasia". Dr Clark recommended that the applicant look at and control his incipient alcoholism.

There was evidence before the judge that the applicant had been in employment and that he was undertaking a course at Hornsby TAFE in business marketing. Despite the events the subject of this application the applicant was determined to get on with his life.

Appeal Ground 1 reads: "The sentencing judge failed properly to take into account the applicant's youth immaturity intoxication and psychiatric condition"

Counsel for the applicant accepted that the judge did refer to the these matters but submitted that it was not entirely clear how he took them into account. It was submitted that the starting point of 6 years 6 months indicated that the judge did not take these matters fully into account.

Counsel for the applicant stressed that in sentencing young offenders considerations of punishment and deterrence generally weigh less heavily than that of rehabilitation. Blackman & Walters [2001] NSWCCA 121 especially at 37. Counsel also stressed that the community's interests were best advanced by the rehabilitation of youthful offenders.

Counsel for the applicant submitted that in the present instance the intoxication triggered the offence. He relied on the applicant subsequently moderating his drinking; the offence was out of character. It was submitted that the fact that the applicant was able to retain the capacity to plan with the others and execute the crime did not negate the mitigatory significance of his intoxication.

Counsel for the applicant submitted that Dr Clark diagnosed the applicant as suffering from an adjustment disorder after the incident involving Mark Wakeling, that he felt humiliated by what had happened, that he developed a state of anxiety and depression and suffered nightmares and increasing emotional disturbance. He is not able to express himself adequately verbally. It was submitted that he bottled up his rage at what had happened. When drunk his intoxication triggered the commission of the offence.

The Crown accepted the general proposition that in the case of young offenders the consideration of rehabilitation plays a more important role and general deterrence a lesser role. However, there must be a reasonable proportion between the objective seriousness of the crime and the sentence imposed. Merely because an applicant is a youth does not mean that considerations of deterrence and retribution cease to operate. The Crown relied on the well known comment in Pham & Ly (1991) 55 A Crim R 128 of Lee CJ at CL to this effect:

The judge was seized of the applicant's youth and the importance of rehabilitation. The amount of alcohol consumed was suggestive of an intention to become intoxicated. The judge was seized of the applicant's intoxication and gave it consideration and weight. The applicant did act with knowledge of what he was doing and with knowledge of the gravity of his actions. In the circumstances of the present case the adjustment disorder does not figure largely.

While the offence was very serious a starting point of 6½ years is stern. The question which arises is whether it is manifestly excessive for a young, immature offender affected by alcohol of previous good character. I would have regarded the correct starting point as not exceeding 6 years. It is arguable that the starting point of 6 years 6 months fell just outside the permissible range.

Appeal Ground 2 reads: "The sentencing judge erred in the discount given for the applicant's plea of guilty, remorse and assistance to the authorities."

The judge accepted the truthfulness of the information provided by the applicant to the police as to his co-offenders and that he would suffer harsher prison conditions by being in protective custody. While prosecutions have not been launched against the two persons the Crown Prosecutor indicated that the police were working on other leads and conceded that the assistance was valuable. The Crown would probably need to obtain further supportive evidence before it could successfully prosecute the co-offenders.

The applicant submitted that a discount of the order of 30 to 31 per cent for the plea of guilty at the first opportunity, the admissions, the remorse and assistance to the authorities was insufficient. It was stressed that the applicant was likely to suffer harsher prison conditions by being in protective custody and the general distaste of prisoners for those who assist the authorities.

I have earlier referred to the unfortunate delay in providing assistance to the authorities If the assistance had been provided earlier and handled better it may have been more valuable The discount given must not be so great that the end result is a sentence which is disproportionate to the offence. The discount given, however, was unduly modest but the offence was such that anything less than a head sentence of 4 years would have been inappropriate.

In my view the amount of the discount given was erroneous. If one takes a starting point of 6½ years the appropriate discount would have been one of 2½ years to cover the early plea of guilty, the early admissions, the remorse and the assistance to the authorities. That works out at a discount of about 38 per cent. If a starting point of about 6 years was taken the discount would have been a little less because a head sentence of less than 4 years would be incorrect having regard to the gravity of the crime.

Appeal Ground 3 reads: "The sentencing judge erred in failing to take into account the bail conditions on the applicant while he was on bail."

In the context of this case, this point is de minimis and need not be considered further.

Appeal Ground 4 reads:: "The sentence imposed was manifestly excessive"

In support of this ground the applicant relied on his earlier submissions and in particular the significance of his youth, immaturity, intoxication and psychiatric condition as well as the many favourable subjective circumstances.

The Crown contended that despite the compelling subjective considerations the offence was particularly serious and warranted condign punishment. I agree. The Crown contended that the sentence was not manifestly excessive considering the major impact the crime had on the various members of the Wakeling family.

This is a troubling case. The crime was undoubtedly serious and had a major impact on the members of the Wakeling family. The applicant was previously a person of good character, with no prior convictions. He was young, headstrong and stupid and much affected by liquor. However, he could not have failed to appreciate the effect of hurling a bottle, with a lighted wick and containing petrol into the house.

In the circumstances of the present case a head sentence in excess of 4 years was not warranted, but one of 4 years was. The judge was correct to find special circumstances and I agree that there were special circumstances. These included the applicant's youth, that this was his first time in custody, his good prospects of rehabilitation and the need for an extended period of supervision.

On re-sentencing we have received the affidavit of Craig Kenneth Robinson of 4 December 2003, which attaches a letter of apology signed by the applicant addressed to the Wakeling family and a reply by Mr Wakeling Snr, which was very generous and very forgiving. The non-parole period which should be set is one of 2 years. This will have the result of the applicant being supervised for 2 years. I propose the following orders: 1. Leave to appeal against sentence granted. Appeal allowed. 2. Sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 4 years commencing on 3 April 2003 with a non-parole period of 2 years to expire on 2 April 2005. on which day the applicant will be eligible for release on parole. 41. HIDDEN J: I agree. Smart AJ referred to the evidence we received this morning of Mr Wakeling's response to the applicant's apology. In that letter Mr Wakeling accepted that apology and expressed the need for all concerned to move on. I simply say that such grace and generosity of spirit are truly commendable.

42. The orders of the Court will be those proposed by Smart AJ.

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