R v Chambers [2005] VSCA 34

7. On 10 September 2003 the appellant pleaded guilty in the Supreme Court at Melbourne to a presentment alleging two counts of arson causing death contrary to s.197A of the Crimes Act 1958. The applicable maximum penalty was 25 years' imprisonment. During the plea a number of witnesses were called to give evidence on behalf of the appellant including a psychiatrist, Dr Lester Walton, and Estelle Louise Bromfield, Warren Kane Bowen, Julie Catherine Oldham and Ian Victor Seal. On 19 December 2004 the appellant was sentenced on both counts to eight years' imprisonment and the judge directed that four years of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1. The total effective sentence was thus 12 years' imprisonment and his Honour fixed a non-parole period of eight years.

10. The appellant, who was granted leave to appeal under s.582 of the Crimes Act on 13 August 2004, now appeals on the grounds -

"1. The sentence is manifestly excessive; 2. The judge erred - (a) in using manslaughter sentences as a guide in sentencing the appellant; (b) in placing too much weight on the maximum penalty; (c) in failing to accord sufficient weight to the fact that the appellant did not know or believe that the deceased were in the house at the relevant time and that neither death nor the slightest physical harm was a foreseen consequence of his actions; (d) in failing to accord sufficient weight to the prosecution's concession 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'; 3. The judge erred in failing to moderate the weight to be given to general deterrence on account of the appellant's borderline personality disorder; 4. The individual sentences, the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and infringe totality."

14. The offences to which the appellant pleaded guilty occurred at Ballarat on 17 October 2002, and the property damaged was situated at 516A Armstrong Street, North Ballarat. The fire the appellant lit in these premises caused the death of Kate Amber Reeve, to whom the property was rented, and a friend of hers, Andrew Montrose Maple.

17. The circumstances giving rise to these offences were as follows. During 2002 the appellant had been residing with Kate Reeve at 516A Armstrong Street. They were friends and shared the same social scene. At the time the appellant was pursuing an affair with a man named Andrew. In August of that year Ms Reeve's brother, Jacob, took his own life, which had a devastating effect upon Ms Reeve. At about this time the appellant and Ms Reeve fell out with each other, leading to Ms Reeve ordering the appellant to leave the Armstrong Street premises. On 23 September the appellant and Ms Reeve were reconciled and he moved back into the Armstrong Street property. On 6 October the appellant's birthday party was held at this address, but during the evening Kate Reeve became distressed in the aftermath of her brother's death. The appellant apparently took the view that Ms Reeve had ruined his birthday party and he was also unhappy that at the party a young man named Ryan Cooper had been kissing the appellant's then boyfriend, Tim. In the early hours of 7 October the appellant returned to Armstrong Street, 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,

thus destroying it. The appellant left the premises taking with him Ms Reeve's credit cards which he damaged by cutting them up, saying to someone that "Kate was a stupid bitch" and deserved it.

21. On about 10 October, Ryan Cooper informed Ms Reeve that the appellant had been responsible for the damage to the house and her property. In response she decided to burn some of the appellant's belongings, including a suitcase full of documents, amongst which were photographs of the appellant with entertainment celebrities obtained during his employment as a journalist and later assistant editor of Tilt magazine, a youth publication distributed throughout Victorian secondary schools between 1998 and 2000. With the assistance of Ryan Cooper, these items and others were burnt in the backyard of the Armstrong Street house on 10 October 2002.

24. On 13 October the appellant returned to Armstrong Street and learned that his belongings had been burnt. He reported the matter to police. Then on 15 October the appellant returned to 516A Armstrong Street and took some twenty photos of Ms Reeve's brother Jacob, which were on a coffee table in the lounge room and on a wall in her bedroom. Ms Reeve reported the theft that night, nominating the appellant as the prime suspect. The appellant later told investigating police that he had taken the photographs as a "bargaining tool" because he believed that some of his belongings might not in fact have been burnt.

27. On 16 October Ms Reeve and some friends went to the Extremities Nightclub. Shortly before midnight the appellant also arrived at the nightclub as a result of a message left on his mobile phone. He had been drinking and was described by one witness as "hyped up". A confrontation subsequently occurred between him and Ms Reeve. The latter grabbed his T-shirt and asked why he had taken her photos. There was mutual verbal abuse with the appellant telling Ms Reeve to back off. In the course of the incident the appellant and Ms Reeve spat at each other. The appellant was then ejected from the nightclub by a bouncer, apparently sustaining a blow to the bottom lip in the process. He then made a complaint at the Ballarat police station at around midnight. He left the police station at approximately 2.45 a.m. feeling depressed and humiliated and in a state of mind which his counsel described as suicidal.

30. At approximately 2 a.m. Ms Reeve, in company with Andrew Maple, left the Extremities Nightclub and went home. Ryan Cooper was to spend the night in the second bedroom of the Armstrong Street house, and told police that he walked to the premises entering through the front door which had been left unlocked. He went to bed at about 4.20 a.m. Meanwhile the appellant had returned to his premises at Main Road, Ballarat, where he consumed a quantity of alcohol and became intoxicated. What follows is best recounted by quoting from the judge's sentencing reasons -

"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 lounge room 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 not look in the second bedroom, the door of which was apparently shut, and which by this time was being occupied by Ryan Cooper. You left the premises by the rear door with the photos still burning on the carpet."

34. Asked later by the police as to the extent of the damage he intended to achieve, the appellant said that he wanted a bit more damage than just the photos, saying that he wanted things to end up "sought of ... the carpet burnt and stuff like that and the photos burnt, smoke to make it smell."

37. Cooper was woken by the noise of the back door and the smell of smoke. He tried to turn the light on but it did not work. He told police he heard noises like someone falling or being thrown and thought the noises were coming from Ms Reeve's bedroom. He left through the bedroom window, but regrettably did not investigate further or call the emergency services. He called a taxi to take him home, the time of that call being 5.16 a.m.

40. Ms Reeve's body, fully clothed, was found near the window of her bedroom. The body of Andrew Maple was face down on the bed. Both of them were covered with a quantity of soot and in the opinion of a pathologist, both had died from smoke inhalation, the cause of death being carbon monoxide poisoning. Evidence was given by an expert in the investigation of fires, Ms Karen Ireland, that the seat of the fire was in the lounge room, Ms Ireland concluding that the fire had commenced either with the ignition of the carpet or adjacent pieces of furniture. The judge however said that there was no forensic evidence to contradict the appellant's account that the fire started by the lighting of the photographs on the carpet. Ms Ireland said that what ensued was a smouldering, rather than a quick raging fire. Photographs of the lounge room after the fire tendered at the plea provide ample evidence of the extent and heat of the fire, and the damage to furniture involved, such as the destruction of a couch and a large armchair.

43. The appellant told investigating police that he did not know that there were persons present in the house at the time he burnt the photographs. The judge noted that the prosecution accepted the proposition that the appellant did not know that the deceased were in the house, and that consequently it was not suggested that the appellant had any intention to physically harm, let alone kill, either of the victims. His Honour accepted that the appellant was intoxicated and that his actions were fuelled by the anger he felt at the loss of his own possessions. His Honour made it clear however that the appellant was being punished for the act of arson and its tragic, albeit unforeseen, consequences, although his Honour said that while the appellant may have been intoxicated, his actions were nonetheless "purposive and goal directed".

46. It is convenient now to turn to the submissions made for the appellant. Mr Croucher submitted that the sentence was manifestly excessive and infringed the principle of totality in view of a variety of circumstances such as the appellant's full admissions to police, his plea of guilty, remorse, limited prior criminal history, the traumas he had experienced in early life, his intoxication and mental state and the effects of his borderline personality disorder. Mr Croucher submitted that in view of the foregoing, whether one looked at the sentences for manslaughter, culpable driving or any other offence as a guide, individual sentences of eight years' gaol were well outside the range. He submitted that of great significance was the fact that the appellant did not know or believe that the deceased were in the house at the relevant time and that neither death was a foreseen consequence of his actions. He submitted that appropriate individual sentences would have been of the order of half to two-thirds of the sentences actually imposed.

49. Next it was submitted that the excessive individual sentences combined with the order for cumulation produced a total effective sentence that offended totality. It was put that a head sentence of 12 years was far too much in the circumstances of this case. Mr Croucher accepted that a moderate amount of cumulation was appropriate to reflect the fact that two lives had been lost, but submitted that four years' cumulation was too much even if proper individual sentences had been passed. The argument ran that a head sentence of 12 years grossly over-represented the appellant's total criminality. He also submitted that the non-parole period was manifestly excessive.

52. Before dealing with the arguments as to manifest excess, it is convenient to mention the other grounds of appeal. Under ground 2 it was argued that the judge erred in using manslaughter sentences as a guide in sentencing the appellant. Exception was taken to the following passage of the judge's sentencing reasons[1] -

"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 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 twenty years. Although there are what may be described as intermediate offences of arson intending to endanger life, for example s.197(2) of the Crimes Act ... 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 exceptional circumstances, the courts regard a sentence of immediate imprisonment as being appropriate. As Parliament has made clear by the penalties enacted, arson causing death constitutes a high order of seriousness." (Footnote omitted.)

56. Mr Croucher submitted that this passage and the sentences imposed revealed error in the approach of the judge, and that in particular the judge erred in using manslaughter sentences as a guide in sentencing the appellant. The argument continued that given the range of sentences imposed in manslaughter and culpable driving cases, the judge must have regarded this as the equivalent of a rather bad example of such offences. However, he argued that the offences in this case fell short of manslaughter or at worst might be regarded as the equivalent of manslaughter near the bottom end of the range of seriousness. The argument continued that arson causing death carries a high maximum penalty because the offence may be committed in a wide variety of circumstances, and that many instances of manslaughter or culpable driving would be far more serious than a given instance of arson causing death. He submitted that the offending in this case fell short of manslaughter because the appellant did not know or believe that the deceased were present, the fire was small, and the intention was to damage property, nothing else. He argued that the appellant did not contemplate the possibility of death or even minor physical harm. Mr Croucher challenged the judge's comments that he thought it "highly unlikely" that the appellant actually looked in Ms Reeve's bedroom, or that if he did, "it could have been no more than a cursory glance", and that 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 ... grossly negligent."

59. Mr Croucher submitted that there were several errors in these passages, first that it was not clear whether the judge used the term "grossly negligent" as merely descriptive, or as a term of art employed in the offence of manslaughter; secondly that these were matters of aggravation that would have had to be established beyond reasonable doubt; thirdly, that the passages asserting that the behaviour amounted to manslaughter by criminal negligence was a breach of the rule in R. v. Newman & Turnbull[2]; and fourthly that the conclusions involved were inconsistent with the Crown's concessions about the facts and nature of the offence.[3]

62. The offence of arson causing death was introduced into the Crimes Act by the Sentencing and Other Acts (Amendment) Act 1997 as s.197A. As the judge noticed in his reasons, this is the first time it has been necessary for a court to pass sentence for such an offence. In her second reading speech introducing the bill, the Attorney-General said[4] -

"The Victorian community was outraged by the terrible fires in the Dandenongs earlier this year which resulted in the loss of three lives. The government believes the act of arson is so intrinsically dangerous that when a death results, the maximum penalty available should reflect that danger. The bill creates a new offence of arson causing death, to apply where a person commits arson, in circumstances not amounting to murder, and when someone dies as a result. The maximum penalty for this offence is 25 years' imprisonment."

His Honour went on to describe a fire inside a suburban house as a serious offence and continued in the passage quoted above, and to which exception was taken.

67. In my view it was appropriate for the judge to use manslaughter sentences as a guide in sentencing the appellant. Far from his Honour placing too much weight on the maximum penalty, there would, I think have been error if his Honour had failed to bear it in mind. Nor do I see any error in his Honour's description of the appellant's behaviour as "grossly negligent". The appellant knew, of course, that the house was Ms Reeve's. He set out, with the assistance of flammable material and an accelerant, to light a fire in the early hours of the morning without, as the judge said, properly and adequately ascertaining whether there were occupants inside. He made no attempt to look into the second bedroom of the house where Ryan Cooper was sleeping. He plainly cannot have looked closely into Ms Reeve's bedroom, since he did not see the occupants. In any event before lighting the fire he had cut off power to the house, thus preventing anyone from turning on the lights and making it not only more difficult to ascertain if the house was occupied, but also very much more difficult for any occupant that might be in the house to escape from it. I am perfectly satisfied that whatever was meant by the expression "grossly negligent", the appellant's conduct met that description. I do not accept that any finding amounting to a matter of aggravation was improperly made by the judge. Nor was there any breach of the rule in Newman & Turnbull.

70. Mr Croucher then submitted that a useful comparison might be made with R. v. Osip[5]. In this case, the applicant, whilst hunting in a forest, shot at a target which he said he believed to be a deer, but unfortunately was a man walking his dog. The man died. There was evidence that the applicant fired contrary to the relevant firearms safety code. The jury found the applicant guilty of manslaughter on the basis of criminal negligence. The offender was sentenced to be imprisoned for four years with a non-parole period of one year. I see no relevance whatever in the comparison between Osip and the present case.

73. I turn then to ground 3, the complaint that the judge failed to moderate the weight to be given to general deterrence. Counsel for the appellant during the plea, basing himself on the reports of Dr Walton and a forensic psychologist, Mr Ian Joblin, and the oral evidence during the plea of Dr Walton, submitted that general deterrence should be moderated having regard to the appellant's disorder. The prosecutor on the other hand submitted that it would be wrong to diminish the aspect of general deterrence and that if the judge were to find that the appellant was not a proper vehicle for general deterrence his Honour would be falling into error. The prosecutor accepted that the judge was entitled to take into account the appellant's personality disorder in respect to moral culpability but submitted that cases such as R. v. Tsiaras[6] are limited to "recognised psychiatric disorders such as schizophrenia and so on".

76. Dealing with this question in sentencing reasons, the judge found that there was a need for specific deterrence in this case and continued -

"Insofar as general deterrence is concerned, you do not have any serious psychiatric illness which would make it inapplicable as a sentencing principle in your case. It is particularly important that the courts, by the sentences imposed, endeavour to discourage the commission of arson in all its forms with its potentially dangerous or fatal consequences. 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."

80. In this Court, Mr McArdle for the Crown submitted that there was no suitable evidentiary foundation before the judge requiring his Honour to mitigate general deterrence because of the appellant's mental state. He argued that the judge correctly took the view that the borderline personality disorder might explain some of the appellant's behaviour and motivations but did not to any great extent bear upon the appellant's moral culpability, a submission which I think correctly expresses the view taken by the judge.

83. Mr Croucher on the other hand submitted that the judge erred in failing to moderate the weight to be given to general deterrence on account of the appellant's borderline personality disorder, and he argued that this disorder meant the appellant was not an appropriate vehicle for the full weight of general deterrence in the sense that he was not a person able to make calm and rational choices about his conduct in the situation, and would be regarded by the general community as a person whose offending arose substantially from his disability.

86. In R. v. Yaldiz[7] Winneke, A.C.J., after referring to cases such as R. v. Anderson[8] and Tsiaras, said -

"It is not appropriate to simply fasten onto the words `recognised psychiatric disorder' and then, without reference to symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused."

90. In R. v. Toni Vodopic[9] this Court considered the case of a woman who had pleaded guilty to various offences including kidnapping for ransom in circumstances where there was evidence that she suffered "a significant personality dysfunction" and accordingly that the sentencing judge should have moderated the weight needed to be given to factors of general and specific deterrence. Eames, J.A., with whom Winneke, A.C.J. and Phillips, J.A. agreed, said[10] -

"Even if the personality dysfunction identified here was to be regarded as a psychiatric illness, which had not been established, it falls far short of the kind of illness discussed in Tsiaras. If it is to be regarded as ameliorating the need for general deterrence, then the symptoms and consequences of such disorder must be clearly explained and related to the offending conduct so as to explain how that disorder bore upon the moral culpability of the appellant in committing the offences: see R. v. Yaldiz. In this case there was simply no evidence, and thus no reason for the judge to conclude that the personality disorder was a relevant factor reducing the seriousness of the offences and the moral culpability of the appellant in her participation therein."

94. Similarly, in R. v. Skura[11] Eames, J.A. said -

"A disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant."

98. It is necessary then to look at what was established by evidence in the present case. In his written report dated 26 November 2003 Dr Walton said -

"1. In my opinion [the appellant] is suffering from a borderline personality disorder with significant compensatory narcissism to offset what is a fundamental failure to develop a stable sense of identity. This is among the most primitive and severe types of personality disorder, in many respects, more disabling than many types of actual psychiatric illness. There are characteristic features of miserable self-esteem, repeated self-mutilation, repeated relationship failures and marked instability of mood, especially rage reactions and depressed mood. Borderline personality disorders may be associated with brief psychotic-like episodes and at times it seems that `the appellant' has had a flimsy grasp on reality." (Emphasis added.)

Dr Walton continued that while the appellant was properly described as being in a "quite unstable mental state at the material time", he did not have a formal defence of mental impairment available to him. He continued -

"As I understand it it would be usual for major mental illnesses only to be seen as relevant in relation to ameliorating the general deterrent aspects of sentencing but I believe it could be argued that because of the severity of this man's personality disorder, such principles could at least be relatively applied in this case."

104. In lengthy oral evidence, Dr Walton said of persons with disorders such as the appellant's, "At times, usually for brief periods, hours or days, rather than more enduring periods of time, they may actually become psychotic or close to it." Dr Walton referred to the fact that a CAT team had administered Largactil to the appellant, saying of Largactil that generally speaking it was reserved for the treatment of psychotic disturbance. Asked whether there was ever a stage where a person can merge into what is seemingly mental illness during a period of time of suffering this disorder, Dr Walton answered -

"These people slip in and out of what appear to be mental illness-like phenomena, so for brief periods of time they may appear to be clinically depressed, having all the hallmarks; they may even appear to be psychotic. Because of the brevity of it, it does not get labelled as a separate illness. It is considered part and parcel of the personality dysfunction, but clearly the disability, the impairment of the person, in my view, and I think this would be generally accepted, is often more severe than people who do attract straightforward diagnoses of illness rather than personality disorder." (Emphasis added.)

Dr Walton added that the appellant's disorder "would be generally regarded as the most severe type of personality disorder, but it is clearly not regarded as an illness". After referring to the fact that the appellant had had three grand mal seizures, Dr Walton said -

"Borderline personality disorder is not an organic brain dysfunction. But obviously such people have limited resources coping with any sort of challenge in life and to come to terms with being epileptic would be very difficult for them."

His evidence continued that the family history of the appellant, including the early disruption to the family, institutional care, and a whole series of group homes were properly described as aggravating factors, and that his history of family and relationships included "an impressive sort of cumulative effect in his case". Dr Walton also said that depressive or deficient personal circumstances affected personality disorders in that "particularly persons suffering from this type of personality disorder are not well-equipped to cope with demands to adapt and the normal vicissitudes of life are often beyond them in terms of coping skills". He added that "the more difficult external circumstances are, the more likely maladaptive behaviour is to occur". Dr Walton said that in the circumstances in which the appellant found himself before the offences occurred, where his relationship with Ms Reeve had deteriorated to the point that his belongings had been piled up in the backyard and burnt by the deceased, and he had returned to find that he had been dispossessed of his property and had nowhere to stay, that he thought the appellant was likely to find that situation particularly challenging.

111. All of this evidence, none of which was really challenged in the prosecutor's cross-examination of Dr Walton, did, I think, establish that the appellant suffered a disorder which was likely to cause him to react maladaptively to the stressful situation in which he found himself, and that he was accordingly likely to behave quite irrationally in his conflict with Ms Reeve because of that disorder. In this situation in my view the evidence of Dr Walton did establish that the appellant was not a person able to make calm and rational choices about his conduct in the situation in which he found himself on the night of 17 October 2002 and that his disability contributed to some extent to his offending. It follows that the appellant's moral culpability was reduced and there was certainly also evidence that imprisonment would be more onerous for him in consequence of his disability.

114. It follows, with all respect to the very experienced sentencing judge, that I think error has been established in that no account was taken of the appellant's borderline personality disorder in the consideration of general deterrence and accordingly that the sentencing discretion is reopened.

117. As to the claim of manifest excess, the judge's reasons for sentence were expressed at length, in detailed and very clear fashion. Save only for ground 3, in my view no error has been shown in these reasons, and I agree with everything else his Honour had to say in them. In my view there is nothing in the claim of manifest excess save only to the extent that general deterrence, as a sentencing consideration should have been "sensibly moderated"[12] in all the circumstances.

120. The appeal should therefore be allowed. I would re-sentence the appellant on each count of arson causing death to seven years' imprisonment. I would direct that three years of the sentence imposed on count 2 be served cumulatively on the

sentence imposed on count 1, making a total effective sentence of ten years' imprisonment. I would fix a non-parole period of six-and-a-half years.

125. In my opinion the appeal should be allowed for the reasons stated by Charles, J.A. and the appellant re-sentenced as his Honour proposes.

[3] The prosecutor conceded during argument 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".

[4] Hansard, Assembly, Thursday 24 April 1997, 873.

[5] [2000] VSCA 237; (2000) 2 V.R. 595.

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

[7] [1998] 2 V.R. 376 at 383.

[8] [1981] VicRp 17; [1981] V.R. 155.

[9] [2003] VSCA 172.

[11] [2004] VSCA 53 at [8].

[12] Champion (1992) 64 A.Crim.R. 244 per Kirby, P. at 255.