defendant. Sentenced to 8 years imprisonment on each count; four years of the second count to be served cumulatively upon the first, producing a total effective sentence of 12 years; non-parole period fixed...
Key principles
Arson causing death is committed where the offender intentionally damages or destroys property by fire and the offender's conduct contributes significantly to the death; an...
Lighting a fire inside a suburban house without properly and adequately ascertaining whether there are occupants, and leaving the premises with the fire still burning,...
Borderline personality disorder, while relevant to sentencing as a mitigating personal circumstance, is not a mental illness amounting to psychosis and does not, without evidence...
Voluntary intoxication does not excuse purposive, goal-directed conduct; while it may affect judgment and be relevant to mitigation, it does not absolve the offender where...
Issues before the court
What mental element is required for the statutory offence of arson causing death when the offender did not intend to harm or kill any person?
Plain English Summary
Chambers set fire to photographs inside a house to damage property after his belongings had been burnt. The smouldering fire produced carbon monoxide and killed two occupants. The court found that setting a fire inside a house without properly checking for people and leaving it burning was grossly negligent. Chambers, who suffered borderline personality disorder and was intoxicated, pleaded guilty. Coldrey J held the statutory offence of arson causing death was made out where the accused intended to damage property and his conduct significantly contributed to death. Chambers received an effective 12 year sentence with an 8 year non-parole period (paras 41-44, 54-57, 60-66, 69, 172).
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Deep Dive
1,855 words · generated 17/07/2026
What happened
The accused, Luthanuel Alex Joshua Chambers, pleaded guilty to two counts of arson causing death in the Supreme Court of Victoria before Coldrey J. The offences arose from events at 516A Armstrong Street, North Ballarat, in October 2002 (para 2).
Can gross negligence or reckless indifference in setting a house fire satisfy criminal culpability when the offender was unaware of occupants?
What is the sentencing approach where the offender has a borderline personality disorder and was intoxicated but pleaded guilty?
Cited legislation
No linked legislation citations have been extracted yet.
Background dispute: Chambers had been living at the address with Kate Reeve. After disputes and the death of others close to Reeve, Reeve and associates burnt a number of Chambers' personal items, including a suitcase of documents and photographs (paras 8, 20, 23).
On 16–17 October 2002 Chambers took photographs (including of Reeve's deceased brother) and later, armed with a plastic juice bottle containing kerosene and a lighter, placed the photographs on the loungeroom carpet at Armstrong Street, poured kerosene, ignited them and left the premises while the photos remained burning (paras 41–44).
The fire smouldered in the loungeroom, produced a large amount of soot and generated carbon monoxide. Two occupants, Kate Reeve and Andrew Maple, died from carbon monoxide poisoning (paras 51, 54–57).
Chambers said he did not know the house was occupied; contemporaneous boasts to others indicate he may not have checked. The Crown accepted he did not know they were present; the offence charged was arson causing death, not an intentional killing (paras 60, 63).
Psychiatric and psychological reports established Chambers suffered borderline personality disorder, had a history of childhood trauma, suicide attempts and periods of depression; he had been intoxicated on the night in question but there was no evidence of psychosis (paras 141–154).
Coldrey J convicted (on plea) and sentenced Chambers to 8 years imprisonment on each count, with 4 years of the second count cumulative, producing an effective term of 12 years and a non-parole period of 8 years; 428 days were declared as time already served (para 172).
Why the court decided this way
Legal elements and causation
Coldrey J analysed the statutory offence introduced in 1997, arson causing death. He stated the essence of arson is intentionally damaging or destroying property by fire; if that arson causes death the offence is committed. Crucially, it suffices that the offender's conduct, by act or omission, contributes significantly to the death (para 69), a principle supported by citation to Royall v R.
Gross negligence/reckless indifference
The judge found that lighting a fire inside a suburban house without properly ascertaining whether there were occupants, and leaving the premises with the fire still burning, was gross negligence (para 66). Chambers either did not check rooms or only looked cursorily; he had the purpose of causing property damage and left the fire smouldering (paras 41, 44, 60–66). That conduct was the direct causal link to the deaths via carbon monoxide.
Mental state and mitigation
Coldrey J accepted that Chambers was intoxicated, angry and afflicted by borderline personality disorder, and these factors explained his vindictive act (paras 63, 147). However, the judge emphasised that borderline personality disorder is not a psychotic illness and does not negate criminal responsibility; it is a mitigating factor relevant to sentence, not to liability (paras 63, 147, 154).
The court accepted limited remorse within Chambers' capacities and acknowledged the severe personal history and psychiatric profile as mitigation (paras 163, 166, 169). Nonetheless, prior relevant conduct and the dangerous nature of arson mandated specific and general deterrence (para 157).
Sentencing balance
Coldrey J observed that arson causing death is a serious statutory offence with a maximum penalty of 25 years introduced in response to public concern over deadly bushfires; it was not intended to be murder-level culpability in all cases (para 69). He compared the statutory offence to manslaughter by gross negligence for guidance in assessing moral culpability and sentence (para 72).
Balancing aggravating factors (dangerousness of arson, deaths, prior relevant offending) and mitigating factors (psychiatric disorder, youth, intelligence, guilty plea), the judge fixed concurrent 8 year terms with partial cumulation for an effective 12 year sentence and an 8 year non-parole period (para 172).
Before and after state of the law
Before
The statutory offence of arson causing death was enacted in Victoria in 1997. Prior to that, deaths caused by fires would often be prosecuted as manslaughter (either unlawful and dangerous act or gross negligence manslaughter) or as murder where intention to kill existed. Coldrey J explicitly notes the 1997 provision filled a niche for deliberate fires causing death where murder was not appropriate (para 69).
This judgment
R v Chambers is, as the judgment states, the first occasion a court in Victoria had to pass sentence under the 1997 arson causing death provision (para 69). The decision thus provides the first sentencing instance and judicial elaboration on how the statutory elements and sentencing principles should be applied.
After
The judgment itself does not provide subsequent appellate treatment. As of this judgment the court's exposition stands as an early guide for how a purposeful damaging-by-fire act that contributes to death can be treated as arson causing death rather than manslaughter or murder, and how mental disorder and intoxication are treated in mitigation (paras 63, 69, 72, 147). Any later authoritative developments would be found in subsequent appellate or statutory materials beyond this text.
Key passages with plain-English translation
"The essence of arson is the intentional damaging or destruction of property belonging to another by fire... It is sufficient if the offender's conduct, whether by act or omission, contributes significantly to the death." (para 69)
Plain English: If you deliberately set fire to someone else's property and your actions significantly cause someone to die, you can be guilty of arson causing death even if you did not intend to kill.
"To light a fire inside a suburban house without properly and adequately ascertaining whether there are occupants inside, and leaving the premises with the fire still burning was, in my view, grossly negligent." (para 66)
Plain English: Starting a fire in a house without checking if people are there, and then leaving it burning, is so careless it becomes criminally blameworthy.
"I accept that you were intoxicated ... That anger produced a vindictive and vengeful response ... but it should be made clear that you are not being punished for that callous action. You are being punished for the act of arson and its tragic, albeit unforeseen, consequences." (para 63)
Plain English: The court recognises motive and intoxication, but punishment is for the dangerous act (starting the fire) and the deaths that caused, not for the emotional motive alone.
"It is perhaps trite to observe that it is not the task of this Court to seek to set any tariff for this offence..." (para 72)
Plain English: The judge refuses to fix a general 'typical' sentence for this new offence; each sentence depends on the facts.
The psychiatric summary: Chambers' borderline personality disorder made the loss of his mementoes disproportionally devastating and helps explain his reaction, but it is not a defence (paras 147, 151).
Plain English: His mental condition helps explain why he acted as he did and reduces moral blame to some extent, but it does not excuse criminal conduct.
What fact patterns trigger this precedent
Fact patterns where an offender intentionally starts a fire to damage property (purposeful property damage) in a dwelling, and that fire causes death even though the offender did not intend to kill.
Cases where the accused did not properly verify whether the premises were occupied, or gave only cursory attention to occupants, but nonetheless started a fire likely to endanger life.
Situations combining vengeance/retaliation for property loss, intoxication, and identifiable psychiatric disorders short of psychosis.
Situations where the fire originates as a smouldering fire (not necessarily a raging inferno) but produces lethal gases such as carbon monoxide leading to fatalities.
The judgment is particularly valuable where prosecutors or courts must decide whether to charge under the 1997 arson-causing-death provision versus manslaughter by gross negligence. Chambers establishes that purpose to damage property plus significant contribution to death suffices to constitute the statutory offence (para 69).
How later courts have treated it
This judgment records that it was the first sentencing exercise under the 1997 arson causing death provision (para 69). The text does not include later appellate consideration or treatment of this decision.
As of Coldrey J's sentencing, the decision serves as an early authoritative articulation of the statutory elements and the sentencing approach for this offence: confirm intentional property damage by fire plus causal contribution to death, consider comparison with manslaughter sentencing ranges, and apply ordinary sentencing principles (paras 69, 72).
Practitioners should check subsequent case law and appellate decisions after 2003 for refinements, since Coldrey J explicitly rejected setting a tariff and framed the sentences on the individual facts (para 72).
Still-open questions
Relative sentencing ranges: Coldrey J declined to set a tariff for the new offence (para 72). Subsequent authorities would be needed to establish consistent sentencing ranges for varying degrees of culpability under s.197A; this judgment offers one data point but not a definitive scale.
Interaction with manslaughter charges: The judge observed that the Crown could have charged manslaughter by gross negligence or unlawful and dangerous act manslaughter (para 69). How courts should choose between these charges in close cases remains to be developed by later decisions.
Degree of culpability required where the offender undertakes some checking versus none: Chambers involved either a failure or only a cursory glance (paras 60–66). The boundary between gross negligence/reckless indifference and lesser negligence will require further case law to elucidate how much checking suffices to avoid criminal liability where death results.
The effect of mental conditions short of psychosis on both liability and sentence: Coldrey J treated borderline personality disorder as mitigation but not exculpatory (paras 147, 154). Questions remain about cases where such disorders are more severe or where psychotic episodes occur contemporaneously.
Impact of voluntary intoxication: The court accepted intoxication affected judgment but emphasised purposive conduct was still present (para 63). The limits of intoxication as a mitigating factor in arson-causing-death cases await authoritative appellate guidance.
Cumulative sentencing approach: The judge imposed partial cumulation (paras 172). How courts should structure cumulation for multiple deaths caused by a single course of conduct under s.197A will benefit from further appellate jurisprudence to inform proportionality and consistency.
Conclusion
R v Chambers establishes that under the Victorian 1997 arson-causing-death provision an offender who deliberately damages property by fire and whose conduct contributes significantly to death can be convicted even without intent to kill (para 69). Gross negligence in failing to check for occupants and leaving a smouldering fire is sufficient criminal culpability (para 66). The offender's mental disorder and intoxication are mitigating but not exculpatory factors in liability, and sentencing must balance mitigation against the serious, potentially fatal consequences of arson (paras 63, 147, 157, 172). Practitioners should treat Chambers as the first sentencing example under s.197A but should seek later authorities for developing sentencing consistency and the refinement of the issues outlined above.
SENTENCE - Arson causing death (two counts) - Section 197A Crimes Act1958 - Maximum penalty of 25 years - First sentences under legislation introduced in 1997 - Offender set fire to photographs inside private house as an act of vengeance - Additional desire to damage dwelling - Reckless as to presence of other persons in house - Akin to manslaughter by gross negligence - Offender suffering from borderline personality disorder - Traumatic early life - Limited remorse - Pleas of guilty - Imprisoned for 8 years on each count with a total effective sentence of 12 years - A non-parole period of 8 years fixed.
[3]
Luthanuel Alex Joshua Chambers, you have pleaded guilty to two counts of arson causing death. The offences occurred at Ballarat on 17 October 2002. The property which you damaged was situated at 516A Armstrong Street, North Ballarat. A fire which you lit in the premises caused the death of Kate Amber Reeve, to whom the property was rented, and a friend of hers, Andrew Montrose Maple.
[4]
In order to sentence you it is necessary to set out the circumstances surrounding the commission of these offences.
[5]
During 2002 you were residing with Kate Reeve at 516A Armstrong Street, North Ballarat. You had met Ms Reeve in about November 2001. You regarded her as a friend and you shared the same social scene. On occasions you travelled to Melbourne to pursue an affair with a man named Andrew. In August of that year, Kate Reeve's brother, Jacob, took his own life. This had a devastating effect upon Ms Reeve. At about this time you and Ms Reeve had a falling out. She felt that you had failed to support her after the death of her brother and, additionally, you owed her an amount of rent variously estimated by witnesses at between $400 and $1,000. Ms Reeve ordered you to leave the Armstrong Street premises, which you did. For a period of weeks you resided at the house of a neighbour, Eleanor Frood. She mediated between you and Ms Reeve and arrangements were made for you to pay off the rental arrears. During the time you stayed with Ms Frood she described your moods as ranging between happy and communicative to sullen and nasty. Towards the end of September, Ms Frood found you vomiting and you were taken to the Ballarat Base Hospital. You claimed to have attempted suicide by taking an overdose of Zyban tablets and trying to gas yourself in your 120Y Datsun vehicle, an attempt which failed when it ran out of petrol. Ms Frood later recommended that you contact the Ballarat Health Services.
[6]
On about 23 September, you apparently became reconciled to Ms Reeve and you shifted back into the Armstrong Street property. On 6 October 2002, your birthday party was held at this address. During the evening Kate became distressed in the aftermath of her brother's death. Later she was convinced by friends to go to the Extremities Nightclub. This was a haunt of your social group and you had actually been employed there as a DJ in the August/September period. It appears, however, that you were unhappy at Ms Reeve's conduct expressing the view that she had ruined your party. According to your counsel you were also unhappy that, at the party, a young man named Ryan Cooper had been kissing your then boyfriend, Tim. Nonetheless, you returned to Armstrong Street in the early hours of 7 October, in company with Ryan Cooper and a young woman named Cherie Graham. You smashed a window at the rear of the premises to gain entry and proceeded to throw items around, pour alcohol on the floor and place Ms Reeve's mobile phone in water, destroying it. You commented that you were sick of everyone saying that they had problems and that no one cared about your problems. One problem you may well have had in mind was the death of your lover, Andrew, who had slashed his wrists about two months earlier.
[7]
You left the premises with Ms Graham who had Ms Reeve's purse with her. You removed the credit cards and damaged them, principally by cutting them up, remarking that Kate was a stupid bitch and deserved it. You also encouraged the 11 year son of Sonia Furness, to whose premises you had gone, to burn the purse. You next sold your unregistered Datsun car to Ms Furness for $20, saying you just wanted to get out of Ballarat. According to your counsel you were, at this stage, depressed, tired, unable to cope and suicidal.
[8]
On 8 October, while in Melbourne, you saw a Dr Eric Salter, a GP whom you had attended on occasions over the preceding five years. His diagnosis on that occasion is recorded as "mood swing personality". He apparently contacted a Crisis Assessment and Treatment Team and Largactil, an anti psychotic medication, was prescribed. Apparently it relieves you of any psychotic disturbance you were experiencing. You remained in Melbourne until 11 October.
[9]
In the meantime, about 10 October, Ryan Cooper informed Kate Reeve that you had been responsible for the damage to the house and to her property. In response she decided to burn some of your belongings. These possessions included clothes, but more importantly a suitcase full of documents. Amongst these papers were photographs of you with entertainment celebrities obtained during your employment as a journalist and later assistant editor of Tilt Magazine, a youth publication distributed throughout Victorian secondary schools between 1998 and 2000. Additionally, there were items given to you by your maternal grandmother with whom you had been very close. With the assistance and encouragement of Ryan Cooper these items, together with a single bed mattress, were burned in the back yard of Armstrong Street on 10 October 2002.
[10]
On 13 October you returned to Armstrong Street and learned that your belongings had been burnt and you attended at the Ballarat police station where you reported the theft and destruction of your personal property. You were described by the police officer to whom you spoke, Constable Michael Watts, as angry and agitated. You were informed by the police officer that you would need to itemise your missing property and make a statement. You ventured the view that an incident involving Ms Reeve's mobile phone could have precipitated her actions. Your anger towards Ms Reeve was manifested in conversations you had with a friend, Shane Marshall, on 14 October and with Eleanor Frood on 15 October. At this time you were temporarily residing at 31A Main Road, Ballarat.
[11]
On the evening of 15 October you returned to 516A Armstrong Street entering through the broken rear door. You took some 20 photos of Ms Reeve's deceased brother, Jacob, which were on a coffee table in the loungeroom and also on a wall in Ms Reeve's bedroom. She reported the theft that night, nominating you as the prime suspect. You later told investigating police in a record of interview that you had taken the photographs as a "bargaining tool" because you believed that some of your belongings had not, in fact, been burnt. Indeed, on 16 October, you again attended at Ballarat police station where, in essence, you informed the police that you did not know if you wished to take things further. You were negotiating with Kate (being Kate Reeve) about getting back the stuff that had not been burnt. On this occasion you appeared calm.
[12]
On 16 October, Kate Reeve, together with friends, Cherie and Aaron Graham and Ryan Cooper, went to Extremities Nightclub. Prior to attending, Ms Reeve, Ryan Cooper, and later Ms Graham, had been drinking wine. The material indicates that all three were affected by alcohol. Just prior to midnight you also arrived at the nightclub as a result of a message left on your mobile phone by Cherie Graham at the behest of Ms Reeve. You had also been consuming alcohol. One witness described you as appearing "hyped up". A confrontation subsequently occurred between you and Ms Reeve. She grabbed your T-shirt and was asking you why you had taken the photos. There was mutual verbal abuse with you telling Ms Reeve to back off. In the course of this incident you spat at her face and she may have reciprocated. Ryan Cooper called a bouncer to the scene and you were ejected from the nightclub. In the course of this occurring you apparently sustained a blow to the bottom lip. You decided to complain to the police about what you regarded as an assault and you arrived at the Ballarat police station at around midnight to make a complaint. A statement having been obtained, you were then interviewed about the burglary involving the removal of the photographs from 516A Armstrong Street. You nominated a friend Richard as having stolen the photos.
[13]
You left the police station at approximately 2.45 a.m. in a state of mind which your counsel described as one of depression and humiliation and subsequently suicidal.
[14]
Meanwhile, Andrew Maple had arrived at the Extremities Nightclub and some time after 2 a.m. he left that venue in company with Kate Reeve. Ms Reeve informed Ryan Cooper that she was going home. Cooper himself was scheduled to spend the night in the second bedroom of the Armstrong Street house, which had previously been your room. He told police that he walked to the premises entering through the front door which Ms Reeve had left unlocked. He went to bed about 4.20 a.m..
[15]
On your arrival back at Main Road you consumed a quantity of alcohol. According to your instructions to counsel you became very intoxicated.
[16]
In your subsequent record of interview you told the police that you burnt several of the stolen photos in your bedroom fireplace at Main Road. You asserted that this gave you the idea of knocking on the door of Armstrong Street and, if it was answered by Kate Reeve, setting the photos alight on the doorstep in front of her before running off. This was designed to achieve maximum impact. In order to accelerate the burning process you poured some kerosene from a container at Main Road into a plastic juice bottle. Armed with this bottle, a cigarette lighter and the photographs, you then walked to Ms Reeve's address. You claimed to have knocked on both the front door and the front bedroom window and there being no answer you believed no one was home. The couple may well have been sleeping at this time as the pathological evidence is that both had consumed a quantity of alcohol. Prior to this, possibly to help achieve the impact you desired, you turned off the power. Having received no response from within the house you entered the premises through the back door. On your version of events you placed the photographs on the loungeroom carpet and poured about half a cup of kerosene over them. You ignited the photos with the cigarette lighter provoking some flames. You told police that you had a quick look inside Kate's bedroom, the door of which was ajar, and saw her Chihuahua dog, which growled, on the end of her bed. This account is contradictory of earlier answers you had given police of not seeing or hearing the dog that night. It was at this time you claimed to have observed the doona "clumped up" but saw no people. You said it was very dark inside the house although there was a street light outside Kate's bedroom window. You did you not look in the second bedroom, the door of which was apparently shut, and which by this time was being occupied by Ryan Cooper.
[17]
You left the premises by the rear door with the photos still burning on the carpet. As to the extent of the damage you intended to achieve you had this to say in your record of interview:
[18]
"She had burnt all my stuff and I guess I wanted, you know, because I decided I wanted a bit more damage than just the photos. Q. Right. So how much damage did you want? A. Just a little. Not heaps. Q. Well, did you have a picture in your mind of how you wanted things to end up looking? A. Sort of, I just, the carpet burnt and stuff like that and the photos burnt, smoke to make it smell."
[19]
Ryan Cooper was woken with the noise of the back door and the smell of smoke. Significantly he described it as "like burning plastic or a very sooty smell". He tried to turn the light on but it did not work. Mr Cooper told police he heard noises like someone falling or being thrown. He thought the noises were coming from Ms Reeve's bedroom. He also heard a voice but could not distinguish whose it was. It was light enough for Mr Cooper to observe black soot coming into the room at the top of the door. Shortly after that he decamped through the bedroom window. Mr Cooper claimed to have knocked on Ms Reeve's bedroom window and the wall of the house without response. Regrettably, he did not investigate further or call the emergency services; rather, he ran for a couple of streets before calling a taxi to take him home. The time of that call was 5.16 a.m.
[20]
The noise that Ryan Cooper heard may well have been Kate Reeve attempting to exit the bedroom through the window and, in doing so, knocking over a small chest of drawers found underneath the window. Ms Reeve's body, fully clothed, was found adjacent to it. Alternatively, Ms Reeve may just have collapsed after leaving the bed. The body of Andrew Maple was face down on the bed. Each was covered with a quantity of soot and, in the opinion of the pathologist, Dr Michael Burke, each had died from smoke inhalation. In particular, the cause of death was carbon monoxide poisoning.
[21]
A scientific expert in the investigation of fire scenes, Ms Karen Ireland, placed the seat of the fire in the loungeroom which had sustained minor to moderate fire damage, and concluded that it commenced either with the ignition of the carpet, or adjacent pieces of furniture, being a sofa seat and a couch, both of which had been severely burnt. However, there was no forensic evidence to contradict your account that the fire had started by the lighting of the photographs on the carpet. I note that a melted juice bottle of the type you used to carry the kerosene was located in the loungeroom and there is no evidence of large quantities of that liquid being spread around the room.
[22]
Ms Ireland described what had ensued as a smouldering, rather than a quick raging, fire. This was evidenced by the amount of soot damage to the remainder of the house. The smouldering may have occupied a period of time between one and a number of hours. In this instance the burning fire produced the poisonous gas carbon monoxide with fatal results.
[23]
You told investigating police that you did not know that there were persons present in the house at the time you burnt the photographs. This is consistent with your bragging statements to various of your acquaintances on 17 October, which belie any knowledge of occupants in Armstrong Street. To some you spoke of fire bombing Kate's house, to others you went into greater detail speaking of pouring kerosene on her loungeroom floor and lighting it, and on some occasions reference was made to your actions being motivated by Ms Reeve's burning of your possessions. A comment to Jordana Grow explaining that you had lit the fire because you wanted her (Ms Reeve) to know what it felt like and that you really didn't care if it killed her little dog is also consistent with an absence of knowledge of the presence of other persons in the house. Indeed, the prosecution accepts the proposition that you did not know that the deceased were in the house. Consequently, it is not suggested that you had any intention to physically harm, let alone kill, either of them. In your record of interview you claimed to have had a quick look into Ms Reeve's bedroom. However, the depositional material records you as telling Benjamin Terletzky: "I didn't check if anyone was in the bed but, oh well", whilst his girlfriend Katrina Edmonds quotes you as responding to Ben's query whether there was anyone in the house with the words, "I don't care if there was anyone in the house. I didn't look". At the very least this exhibits a level of reckless indifference.
[24]
In the course of your plea reference was made to your state of mind at the time of these offences. I accept that you were intoxicated and that may have affected your judgment to some extent. I also accept that your actions were fuelled by the anger you felt at the loss of your own important possessions. That anger produced a vindictive and vengeful response in burning the photographs, but it should be made clear that you are not being punished for that callous action. You are being punished for the act of arson and its tragic, albeit unforeseen, consequences. In that regard, whilst you may have been intoxicated, your actions were purposive and goal directed. Much has been made of the borderline personality disorder with which you are afflicted, and I shall discuss it further shortly. It may explain the intensity of your anger but it does not constitute a mental illness and there is no evidence that you were suffering from any form of psychosis at the time of this incident, albeit you had been prescribed Largactil just over a week earlier.
[25]
Even allowing for the element of big noting in your statements to others, I think it highly unlikely that you actually looked in Kate Reeve's bedroom but rather, you assumed her absence from the premises. Of course you were quite unaware of the existence of Mr Maple. If you did look into the room, it could have been no more than a cursory glance. In either case to light a fire inside a suburban house without properly and adequately ascertaining whether there are occupants inside, and leaving the premises with the fire still burning was, in my view, grossly negligent. Moreover, as you made clear in the record of interview, your purpose was to cause damage to the house and not merely to destroy the photographs.
[26]
It may well be that in the circumstances of this case the Crown could have charged you with manslaughter by gross negligence, or arguably unlawful and dangerous act manslaughter. However that may be, the offence chosen was that described as arson causing death. The essence of arson is the intentional damaging or destruction of property belonging to another by fire and doing so without lawful excuse. A person maybe regarded as having the requisite intention if one of his or her purposes is to destroy or damage property. This purpose was conceded by you in your record of interview. If that arson causes the death of another person, the offence is committed. It is sufficient if the offender's conduct, whether by act or omission, contributes significantly to the death[1]. This is a relatively new legislative provision introduced into the law of Victoria in 1997. This is the first time it has been necessary for a court to pass sentence for such an offence. An examination of the Second Reading Speech when the relevant Bill was introduced into Parliament makes it clear that the enactment, with a 25 years maximum penalty, was introduced primarily as a result of public disquiet at the deaths of three people from bush fires deliberately lit in the Dandenong Ranges. It was to be applicable in circumstances not amounting to murder. There is no doubt that the offence may also encompass a factory fire or a house fire but it was conceded by the prosecution that the present offence would constitute a lower level of moral culpability than, for example, a fire deliberately started on the edge of a State forest. Nonetheless to set a fire inside a suburban house is a serious offence.
[27]
It is perhaps trite to observe that it is not the task of this Court to seek to set any tariff for this offence but rather, to sentence according to the specific circumstances of the present case. However, in determining an appropriate sentence, the court must take into account that this is not an offence involving any murderous intent. Furthermore, some assistance may be gained by comparison with the types of sentences imposed for manslaughter, particularly manslaughter by gross negligence which carries a maximum penalty of 20 years.
[28]
Although there are what may be described as intermediate offences of arson intending to endanger life, for example (s.197(2) of the Crimes Act1958 (Victoria)) and a similar offence in the U.K., these are not apposite to the present case. Arson, with its potential to endanger the lives of others, is regarded as a serious offence and, except in the most exceptional circumstances, the courts regard a sentence of immediate imprisonment as being appropriate[2]. As Parliament has made clear by the penalties enacted, arson causing death constitutes a higher order of seriousness.
[29]
There are a number of personal factors in your case which are relevant to the sentence to be imposed. Before examining them, however, I want to say something about the deceased. Kate Reeve was aged 22 at the time of her death. She completed her VCE and had performed voluntary work with the Ballarat YMCA and undertaken employment focusing on the hospitality industry. Ms Reeve was a very popular young woman with a large circle of friends.
[30]
To her mother she was a precious, loving daughter with a happy disposition, a generous nature, and a love of life. For Mrs Reeve the loss of a daughter so close to her, and so soon after the tragic death of her youngest son, has been emotionally devastating. Not surprisingly Mrs Reeve has required antidepressant medication and counselling. Benjamin Reeve, as the sole remaining child, describes himself as being in a state of continuous numbness generated by the crushing loss of his sister Kate. His life is now pervaded by anxiety that he will experience the loss of another of the loved ones in his life. His wife, Dani Reeve, writes of the charisma, style and grace of her beautiful sister-in-law with whom she had established close emotional bonds - bonds strengthened by the heartbreaking death of her brother Jacob. She laments the loss of their future companionship and she struggles with her own depression and for the strength to comfort her husband. Like him, she fears losing precious things in her life. Kate's grandmother, Mrs Pauline Kisler, writes of having had her confidante, friend and mate taken from her. Like others, Mrs Kisler endorses Kate's loving and giving personality and misses her terribly. Michael McGarry, Kate Reeve's stepfather, writes of missing her greatly and having only beautiful memories of her. Since her death he has experienced such emotions as depression, anxiety and anger.
[31]
Andrew Maple was 24 years old when he died. Having initially attended Adelaide University and studied National Resource Management while working part-time, Andrew travelled overseas on a working holiday. In 2002, he commenced to study primary school teaching at the Australian Catholic University at Ballarat. He was an accomplished hockey player having represented South Australia up to the under 21 level. He later played in Melbourne with Essendon Hockey Club and at the time of his death he was involved with the Ballarat Hockey Club.
[32]
Andrew was part of a closely-knit family bound together by love. In her victim impact statement, Andrew's mother, Mrs Pauline Maple, who had previously experienced the traumatic effect of the unexpected death of loved ones, described the enormous sense of loss and grief which she, her husband Graham and Andrew's two sisters, have experienced at his death. Mrs Maple has experienced constant headaches and exhaustion and has required counselling, and the effect on her husband Graham has been such that for the time being she has had to take on the role of sole breadwinner.
[33]
Not only was Andrew an independent person as evidenced by his overseas travels, he was also a popular young man constantly surrounded by friends from all walks of life. Indeed, after his death, friends from hockey clubs with which he had been associated journeyed to Adelaide to play a memorial game. As Mrs Maple put it: "Andrew was an extraordinary human being and the world is a poorer place without him." These sentiments are echoed by his elder sister Rebecca in an account which provides intimate details of the close, loving and fun filled journey from childhood to adulthood that she and Andrew took together. Rebecca Maple vividly discusses the grief visited on herself, her husband Damien, her parents and her sister and grandma Kit by the disaster of Andrew's death. The fact that her soon to be born child will not have an uncle is particularly distressing.
[34]
Like her sister, Sarah Maple had not only a brother in Andrew but a very good friend. She describes her brother as a fun companion, natural athlete and a born teacher. She reiterates the monumental distress caused to the family by Andrew's passing. After his death she could no longer live in Melbourne surrounded by the memories of the time they spent together and is now living with her sister in Darwin.
[35]
I could not possibly reproduce the heartfelt eloquence of the victim impact statements of both the Reeve and Maple families. I can only give their flavour. Each one enshrines wonderful memories of Kate and Andrew and each one makes it abundantly clear that the tragic, untimely and senseless deaths of Kate and Andrew are events from which their families will never fully recover.
[36]
Luthanuel Chambers, you are presently aged 28, having been born in Ballarat in October 1975. You have a 26 year old brother and a half sister aged 14. You believe that your mother, who you have not seen for 8 or 9 years, was aged 18 when you were born. You have never known your father. Your perception is that your mother, who had a series of de facto relationships, never had any love for you and your counsel recounted an early childhood marred by regular beatings particularly for bed wetting. Your punishments included strapping and the writing of lines. When you were about five or six and living in Melbourne, you were placed in the Gordon and Scott homes. You were rescued by your grandmother and taken back to Ballarat. There was some opposition from your grandfather but you remained in the household from about aged six to nine. Unfortunately there was an ongoing conflict with an uncle about two years your senior which resulted in you being forced, on occasions, to perform oral sex. Eventually your grandmother decided that the best solution was to foster you out and, at about the age of ten, you commenced the first of numerous placements with group families largely in the Ballarat area. Ultimately you were made a ward of the State.
[37]
When you were about 11 you learned that your mother was operating the Trentham Hotel. You went and resided with her for two and a half months before the relationship broke down. One reason for this breakdown was that you smashed up your room. Apparently this was an event which occurred about twice a year when you felt your life to be intolerable. Thereafter, you went to Ballarat Children's Home, where you remained until you were 16. It was put that during these periods of foster and institutional care, your latent homosexuality became explicit.
[38]
Your education was as disrupted as your family life. It commenced at St Patricks, a catholic school in Ballarat, continued at Clayton North Primary School, when you were with your mother in Melbourne, and, insofar as primary school is concerned, concluded once again at St Patricks. By grade 6 your homosexuality was known and not only did this occasion abuse and rejection at school, but also rejection by your family. This was particularly distressing and you commenced having suicidal feelings. You were described by your counsel as being grossly confused about your identity and sexuality and having no one in whom to confide. You had a catholic secondary education at Ballarat and Kyneton. You eventually left school during year 10. By this stage you had sought solace amongst persons with the same sexual orientation as yourself and you attended gay clubs in Melbourne whenever you could muster the train fare. To obtain it you worked at McDonalds and did paper rounds.
[39]
In Melbourne you developed a relationship with a man named Andrew, who was about 30 years old. After a period of six months in Queensland, during which your wardship terminated, you lived in Melbourne with Andrew. You were then about 17. When that relationship soured you attempted to commit suicide by electrocution. This resulted in burn injuries requiring the amputation of both fifth toes. According to your counsel you also developed paranoia about this time.
[40]
After spending a period of time living with an aunt in Northcote, you eventually obtained work as a lighting operator at nightclubs such as the Tasty Nightclub, and you graduated to being a disc jockey. In terms of relationships, you had infrequent homosexual encounters of short duration.
[41]
At the age of 18 you had met a Ms Hilary Quinn who employed you in the production of Tilt magazine which was distributed between 1998 and 2000, and to which I have previously referred. She became virtually a mother figure for you. In a reference tendered on your plea, she described your excellent interviewing, writing and computer skills and your capacity to meet deadlines which resulted in your promotion to assistant editor. She also wrote of your popularity with other staff members and described you as a caring person and a loyal and genuine friend.
[42]
When you were aged about 20 your grandmother contracted Creutzfeldt Jacob disease and, when she died, you lost a person upon whom you had always relied for support.
[43]
In 2001 you returned to the genesis of your family in Ballarat, initially finding a flat in Albert Street. In March 2001, for reasons not elucidated in your plea, you endeavoured to commit suicide by injecting liquid mercury into your right elbow region. From time to time, particularly in May 2001, you were commuting to Melbourne to maintain a relationship with Andrew.
[44]
A reference by Ms Barb Dunlop praises your work as an occasional back stage volunteer with the Royal South Street Society over a period of two months in each of the 2001 and 2002 seasons.
[45]
During this period it appears that you had occasional employment as a window dresser, as a DJ and at Cash Converters. You also occasionally assisted a friend, Warren Bowen, in an art gallery that he was running. This was up until the time he left Ballarat about six or seven months before this incident. Mr Bowen describes you as non aggressive although you experienced emotional highs and lows. You also did nude modelling at his gallery and at tertiary institutions. However, for most of the time you were on the dole.
[46]
Other witnesses who gave evidence on your behalf were Estelle Bromfield, a student who met you when she was about 15. She said that you and she supported each other through conversations and that you were a non-violent, loving person. In the brief period after your possessions were burnt, she described you as being withdrawn and emotionless.
[47]
Your great aunt, Ms Julie Oldham, confirmed the lack of affection you received from your mother and the devastating effect upon you of the death of your grandmother in 1996. Indeed, after her funeral, you were totally ostracised by other family members. She also described you as a moody child, prone to be aggressive to objects (though not people) in your early years.
[48]
Finally, Mr Ian Seal, whose positions included lecturer in adolescent health at the Faculty of Medicine at Melbourne University and program manager at the Centre for Adolescent Health at the Royal Children's Hospital, told the Court he had known you since the age of 15 when you met on a peer education program focusing on HIV AIDS prevention. In that time he had never witnessed any propensity for violence towards people although at times, when you had been under pressure, he had seen you become depressed and withdrawn. You had confided in him to some extent about the chaos and abuse of your early life. Mr Seal regarded your act of lighting the fire as out of character.
[49]
In the course of the plea you also made a statement apologising to the Reeve and Maple families and expressing your regrets for what had occurred.
[50]
In setting out your personal history, I have referred to your dysfunctional upbringing, your relationship difficulties, your attempts to take your own life and your state of mind in October 2002. Dr Lester Walton, a prominent forensic psychiatrist, gave evidence on your behalf and provided a report in which he set out your psychiatric and medical history. In 1986, you underwent a period of assessment at the child psychiatric facility, Travencore, and some ten years later you spent a period of time under the care of Dr Christopher Martin, a specialist psychiatrist. In 1990, when you were 14 and a half, you were seen by Dr Harry Zehnwirth, a consultant paediatrician, after having apparently suffered epileptic seizures. It appears in September 1999 you suffered the first of three further epileptic episodes.
[51]
Your past medical records provided by Dr Salter include treatment for anxiety in June 1997, depression in June 2000 and, as I have already indicated, treatment for mood swing personality in October 2002.
[52]
On the basis of the material it was Dr Walton's opinion that whilst you were of average intelligence, with no striking cognitive deficit, you were suffering from borderline personality disorder. This is a disorder of very early childhood development where there is a failure to develop a proper sense of self identity. Its characteristics include periods of depression, recurring self injury, relationship failures and enraged reactions in interpersonal circumstances. Another feature is compensatory narcissism. It is not an actual psychiatric illness, but may be associated with brief psychotic-like episodes. However, the evidence relating to this offence does not indicate that you were suffering from any psychosis at the time of its commission. Nonetheless, Dr Walton expressed the following view in his report:
[53]
"While the destruction of anyone's personal mementoes would likely be distressing, for a person such as Mr Chambers, such a loss would assume much greater proportion. Mr Chambers was additionally unstable and depressed leading up to his offending in relation to the suicide of a former partner, the suicide of his flatmate's brother, the two intimate acquaintances who had elected to become involved with each other rather than Mr Chambers, and what he perceived to be a rejecting attitude on the part of his former flatmate. In many respects, his retaliation by way of burning her personal possessions, especially photographs of her deceased brother, amounts to petulant revenge, which had consequences by way of death of two other persons, seemingly way beyond Mr Chambers' imaginings of inflicting hurt."
[54]
A report by forensic psychologist, Mr Ian Joblin, was also tendered to the court. In essence, Mr Joblin regarded you as being of good intelligence but exhibiting features of borderline personality disorder. In this latter regard his opinion is consistent with that of Dr Walton.
[55]
Whilst borderline personality disorder is fundamentally untreatable, episodes of depression or anger or even psychotic-like states may be treated by medication. The material before the court indicates that you have already made an attempt at suicide or inflicted injuries on yourself during your time in custody and you continue to have self destructive urges. At present you are in receipt of antidepressant and sedative medication, as well as Epilim, which is both a mood stabilising and anti-epileptic agent.
[56]
You have two prior convictions which may be regarded as having some relevance to this offence. In September 2002, you were convicted of two charges of criminal damage and received a community based order. On two occasions a week apart you threw a bottle through the window of a hairdressing shop. According to your counsel, this was an attempt to warn, or scare off, the occupant of those premises from whom you were attempting to separate following a relationship which you had been subjected to violence. Nonetheless, it represents vengeance towards property which may have had dangerous repercussions and which is present in your history. Accordingly, there is a need for specific deterrence in this case. Insofar as general deterrence in concerned, you do not have any serious psychiatric illness which would make it inapplicable as a sentencing principle in your case[3]. It is particularly important that the courts, by the sentences imposed, endeavour to discourage the commission of arson in all its forms and with its potentially dangerous or fatal consequences.
[57]
In sentencing you I take into account the traumas you have experienced in your early life, as well as your mental state at the time of these offences, which I have already discussed. Further, I accept the evidence of Dr Walton that persons with a borderline personality disorder will find imprisonment more arduous than normal prisoners. I also accept and have regard to the fact that your effeminate presentation may make you a target for sexual abuse.
[58]
Additionally, I take into account in your favour your pleas of guilty.
[59]
Dr Walton has ventured the opinion that you are incapable of expressing mature adult remorse, but I accept that within your emotional capacities you are genuinely remorseful.
[60]
You are still relatively young and you are reasonably intelligent. You have exhibited skills in the entertainment industry, particularly in the area of journalism and also lighting. A number of people have spoken well of you. It may be that, with the aid of appropriate medication, you can ultimately live a useful life within the community.
[61]
This case represents a very difficult sentencing exercise involving, as it does, the inadvertent death of two young people. Balancing as best I can the sentencing principles enunciated in the Sentencing Act, and fashioning an overall sentence, I have concluded that on count 1 you should be sentenced to a term of 8 years' imprisonment and on count 2 you should be imprisoned for the same period. Although the one series of actions caused each of the deaths, there should nonetheless be a period of cumulation. Consequently, I order that a period of four years of count 2 is to be served cumulatively upon the sentence imposed on count 1. This results in a total effective sentence of 12 years. I fix a non-parole period of 8 years. Further, I declare that the period to be reckoned as already served under the sentence is 428 days inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.
Sentenced to 8 years imprisonment on each count; four years of the second count to be served cumulatively upon the first, producing a total effective sentence of 12 years; non-parole period fixed at 8 years; 428 days declared as time already served (para 172).