R v Clifton [2016] ACTSC 326

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - attempted arson - Molotov cocktails - damage property - drinkdriving - provisional license holder - special driver - pleas of guilty - parity with co-offender - intensive correction order

Crimes (Sentencing) Act 2005 (ACT) ss 11, 13, 33, 35, 77, 78

Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19

R v Miles [2016] ACTSC 83

R v Wrigley [2015] ACTSC 114

SCC 88 of 2016; SCC 89 of 2016

1. The offender is to be sentenced for the following offences committed on 2 February 2016:

(a) Attempted arson contrary to ss 44 and 404(1) of the Criminal Code 2002 (ACT) (Criminal Code) (maximum penalty 15 years' imprisonment);

(b) Damage property contrary to s 403(1) of the Criminal Code (maximum penalty 10 years' imprisonment); and

(c) Drive with level 2 prescribed concentration of alcohol as a repeat offender contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (maximum penalty $1,500 and disqualification).

2. In relation to offences (a) and (b), following preparation of the brief of evidence, the offender entered a plea of guilty in the Magistrates Court at the fourth mention. In relation to offence (c), the plea was entered at an earlier time.

3. The prosecution case was strong. However, the pleas have a high utilitarian value. For offences (a) and (b) the appropriate s 35 discount is 20-25%. For offence (c) it is 25%.

4. The offender and Mr Craven, the victim, had been friends until about a month prior to the offence, when there was a falling out because the offender discovered that Mr Craven had been involved in a relationship with the offender's former partner. This made the offender very angry and resentful towards the victim.

5. On the evening of 2 February 2016, the offender went to premises where the cooffender, Mr King, was drinking with a friend. The offender asked Mr King to help him and Mr King agreed to do so. The men drove in the offender's vehicle to the victim's address, arriving at about 10.30 pm.

6. The victim was at home with his fiancée (who was not the offender's former partner). Their vehicles were in the driveway.

7. The offender provided Mr King with camouflage overalls, a facemask, and a bottle filled with petrol and a rag (a Molotov cocktail) and the offender equipped himself in a similar fashion. The offender and Mr King walked towards the victim's residence.

8. The offender used a lighter to ignite both Molotov cocktails. The offender and Mr King threw the Molotov cocktails towards the victim's vehicle. They landed nearby. One of the bottles hit the victim's vehicle, causing minor damage to the top of the driver's side front pillar. The offender and Mr King returned to the offender's vehicle and the offender drove them from the scene.

9. The victim heard an explosion at the front of his residence. On a CCTV system, he observed a large fireball in the driveway. He ran outside and extinguished the flames using a garden hose. He saw the offender's vehicle driving away and he followed it in his fiancée's undamaged vehicle, pulling up next to it. He was able to identify the offender as the driver. The offender drove away at high-speed. The victim was unable to follow.

10. The victim's fiancée telephoned the police. At 10.35 pm, police apprehended the offender, who had been driving his vehicle at a high speed and without headlights. At 11.42 pm, the offender supplied a breath sample to police. It gave a reading of 0.067 grams of alcohol per 210 litres of breath, being a level 2 reading because the offender was the holder of a provisional licence making him a special driver subject to a blood alcohol limit of zero. The offender received a 90-day suspension notice. Mr King was also arrested.

11. The offender spent one day in custody before being released to bail.

12. Mr King participated in a record of interview and made full admissions. He was charged with attempted arson. He entered a plea of guilty at the second mention, prior to the preparation of a full brief of evidence.

13. On 7 July 2016, Burns J sentenced Mr King to six months' imprisonment, having discounted the sentence from eight months' imprisonment for the plea of guilty. The sentence was fully suspended upon Mr King entering into a two-year good behaviour order that included a 200-hour community service order.

14. When sentencing Mr King, Burns J observed that Mr King's criminal history was not particularly significant and that he had a good employment history. His Honour noted that the offence was completely out of character for Mr King and could be explained by Mr King's alcohol problem. According to the pre-sentence report, Mr King had consumed 18 standard drinks on the evening in question. Mr King had accepted that he must address alcohol abuse and had voluntarily commenced counselling. His Honour considered that Mr King had very good prospects of rehabilitation.

15. In the present case, counsel for the offender submitted that the subjective circumstances of Mr King were not dissimilar to the offender's subjective circumstances. I agree that there is not a large difference in the subjective circumstances, but overall Mr King's subjective circumstances were stronger. For example, this offender was on conditional liberty at the time that he committed the offence. Further, Mr King was able to satisfy Burns J that he had very good prospects of rehabilitation, whereas I am left in a state of some uncertainty about this offender's prospects of rehabilitation.

16. In R v Wrigley [2015] ACTSC 114 at [34], and again in R v Miles [2016] ACTSC 83 at [29], Refshauge J discussed the considerations that are relevant to an assessment of the objective seriousness of an offence of arson. These include the intent with which the offence is committed, the motive for the offence, the degree of planning or premeditation and the extent of the damage. Aggravating circumstances may include the fact that the offence was committed at night, that it involved the use of an accelerant and that lives were put at risk.

17. Although Mr King's involvement was impulsive, the offender's involvement was not. It was planned. He recruited Mr King. He was in possession of camouflage overalls, face masks and two Molotov cocktails. I infer that the offender constructed, or at least organised the construction of the Molotov cocktails. The offender's motive for the offence was retribution or revenge for a perceived wrong by the victim in forming a liaison with the offender's former partner. When Mr King was highly intoxicated, the offender managed to persuade Mr King that the offender's motive was a good one. The offence occurred in company, at night, in a residential area and in the presence of the victim. As the victim's vehicle was parked in the driveway, it would have been obvious to the offender that the victim was at home. Presumably, the offender timed the offence because he expected that the victim would be at home and he wanted to frighten him. As it transpired, there was not one person at home, but two, because the victim's fiancée was also present at the time of the offence.

18. No victim impact statements were provided, but I infer that the victim and his fiancée were very frightened by the offence and there may have been significant psychological consequences for them. I do not know what those consequences were but, at least at the time of the offences, the victim and his fiancée would have been very frightened.

19. As Burns J observed when sentencing Mr King, the offence had the potential to cause a catastrophic outcome. It was fortunate that the victim acted quickly to extinguish the fire, or the damage could have been significantly greater. As it was, the damage was only minor.

20. The offence of attempted arson that was committed by the offender was objectively serious. It was significantly more serious than the offence committed by the co-offender for the reasons explained above.

21. On the other hand, the offence of causing damage to property was of low objective seriousness. The indentation caused to the victim's vehicle probably did not have a significant impact on the value of the car. The offence was incidental to the primary offence of attempted arson.

22. The offence of drink-driving was of significant objective seriousness, particularly because it occurred while the offender was driving unsafely. He was driving at speed and without the headlights illuminated. Given that the offender was licensed as a special driver, the alcohol reading was substantial. The offender's criminal history disentitles him to leniency in relation to this offence.

24. He has numerous driving convictions, including convictions for driving with alcohol in his blood in 2006, twice in 2008 and in 2011. In 2006, he received a three-month sentence of imprisonment for drink-driving, which was suspended upon the offender entering into a 12-month good behaviour order subject to conditions and he was disqualified from driving for nine months. In 2008, he was fined and disqualified from driving for 10 months. In 2011, he was fined and disqualified from driving for 12 months. In 2008, he committed an offence of damaging property, for which he received a fine.

25. Between December 2011 and February of 2016, the offender committed no offences.

26. At the time of the subject offences, the offender was on bail for matters that are yet to be determined. I am advised that they are matters of a different type.

27. The pre-sentence report indicates that there has been some non-compliance while the offender has been on bail for these matters, although he has not been breached for non-compliance.

28. The offender did not enjoy school. He was subjected to bullying and suspended for unacceptable behaviour. Ultimately, because of behavioural issues, he was placed in an alternative education program, where he did much better. He obtained a Year 10 Certificate.

29. Due to health issues, the offender has worked only sporadically in the last few years as a painter and fencer. He has a certificate in child services, but has not been in a position to work extensively in that field. For some time, he has been receiving Centrelink benefits.

30. The defendant has a number of physical problems. In 2008, he was the victim of a robbery in which his face was badly injured. I am informed that he is still scarred as a result of that incident and the vision in his right eye is significantly impaired. In 2013, he was involved in a motorcycle accident in which he sustained numerous injuries, including a fracture to his right fibula and tibia. This led to complex surgery and required a 10-month recovery period.

31. During the recovery period, the offender was diagnosed with chronic depression and was prescribed antidepressants, although it was later discovered that the offender had an adverse reaction to that medication. More recently, he has been prescribed medication for anxiety and sleeplessness.

32. The offender has a good relationship with his mother, but he has always had a difficult relationship with his father. Nevertheless, for some time now he has resided with, and is the primary carer for, his father. The offender's parents are separated. The offender's father suffers from end stage emphysema and is severely disabled. He requires oxygen supplementation 24 hours a day. As his primary carer, the offender is involved in showering and dressing his father and undertaking household chores, as well as driving his father to appointments. Other family members provide some assistance, but no-one else is able to provide full-time support. The offender's father is a difficult person, who is angry and depressed. He refuses to accept care from persons outside the family.

33. For the past eight years, the offender has abused alcohol. Alcohol abuse has been related to social isolation and depression, which in turn has been partly related to the medical problems to which I have referred.

34. The offender's mother believes that the offender has exhibited symptoms of depression since he was 17 years old, but it is only much more recently that the offender has acknowledged any significant difficulty in that regard. The offender's difficult relationship with his father and the need to provide intimate care to his father, is a significant stressor.

35. At the time of the offences, the offender was consuming about 12 standard drinks of alcohol a day. He said that, since the offences, his alcohol consumption has decreased. His mother gave evidence that she has not observed him consuming alcohol to any extent in recent times and last saw him consuming alcohol about two months ago.

36. The offender has attended on his general practitioner, who has developed a mental health plan. The offender has commenced three types of psychological treatment. First, he is receiving medication from his general practitioner. Second, he has been referred to a clinical psychologist, Dr Connor, who is providing counselling in relation to anxiety, relationship issues and grief. Third, on 8 February 2016, a few days after the offences, the offender approached Directions ACT and he has since seen that organisation in relation to alcohol and drug counselling. He has attended two appointments and a further appointment is scheduled.

37. The offender has shown some insight into his conduct and accepted responsibility for the offences. He now understands the need to address substance abuse problems and is prepared to accept that he also suffers from psychological problems for which he requires some support.

38. The offender has accepted responsibility by paying for damage to the vehicle of the victim's fiancée in the sum of $936. The Court was informed from the bar table that the victim's vehicle has been sold. It is unclear whether the victim suffered any financial loss as a result of the damage that is the subject of the damage property charge.

39. In sentencing the offender, the Court is required to consider the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), insofar as they are relevant. I have referred to the relevant matters, including the support that the offender provides to his terminally ill father.

40. The sentencing purposes that are important in this case are general deterrence, punishment, denunciation and accountability, as well as recognition of the harm done to the victims. Rehabilitation is also important. The offender has some prospects of rehabilitation. Unfortunately, in the past, he has not been completely compliant with supervision requirements, and he will need to do so if he is to benefit from supervision.

41. At proceedings on 22 July 2016, I convicted the offender of the damage property offence and, pursuant to s 13 of the Sentencing Act, I made a good behaviour order requiring the offender to sign an undertaking to comply with good behaviour obligations for a period of six months. The good behaviour order was subject to the conditions that the offender accepted the supervision of ACT Corrective Services for the whole of the period of the order, complied with all their reasonable requests and reported to ACT Corrective Services at Eclipse House by 4:00 pm on Monday, 25 July 2016.

42. In relation to the drink-driving matter, I fined the offender $750 (which would have been close to $1,000 except for the plea of guilty) and disqualified him from driving for a period of 12 months. I considered that 12 months was an appropriate disqualification period because, in the past, the offender had received quite lengthy periods of disqualification which had not deterred him from driving.

43. I referred the offender for assessment for an intensive correction order. I considered that the report preparation time would serve the purpose of enabling the offender to demonstrate that he has the capacity to comply with requirements designed to support his rehabilitation.

44. In relation to the principal offence of attempted arson, both parties accepted that some sort of sentence of imprisonment was the only appropriate outcome. The question was the manner in which the sentence should be served. The prosecution submitted that the Court should at least consider full-time imprisonment. I accepted that full-time imprisonment was well within the sentencing range and, in adjourning the proceedings to obtain an intensive correction order assessment, I did not intend to signal that a positive assessment would necessarily result in a sentence other than a sentence of fulltime imprisonment. However, I considered it an option that should remain open for consideration.

45. I indicated that an appropriate sentence for the principle offence of attempted arson was 16 months' imprisonment, being a starting point of 20 months' imprisonment, less 20% for the plea of guilty.

46. Having considered the intensive correction assessment and the further material contained in Exhibit B, I note that the offender's response to supervision between July and October had been very positive. He had engaged very well with appropriate services and made considerable progress towards rehabilitation.

47. Recently, there has been little or no alcohol or cannabis use and psychological problems are recognised and are being addressed. Continued abstention from substance abuse will lower the offender's risk of re-offending. Currently, he is assessed as at medium to highrisk, but reports to the Court suggest that if he continues on his current path the risk of re-offending is really quite low and the prospects of rehabilitation are very favourable.

48. It is clear that intensive supervision will greatly support and assist the offender towards rehabilitation. Apart from the fact that he suffers from a chronic relapsing condition and any detected drug or alcohol misuse may constitute a breach of the intensive correction order (rather than enabling a discretionary approach), I consider that an intensive correction order is highly appropriate.

49. The offender is convicted and sentenced to 16 months' imprisonment.

50. I am satisfied of the matters referred to in ss 77 and 78 of the Sentencing Act. Pursuant to section 11 of the Sentencing Act, I order that the sentence be served by intensive correction in the community.

51. The intensive correction order is to include the following additional conditions:

(a) the offender is to report to ACT Corrective Services by 4:00 pm today; and

(b) the offender is to accept supervision by ACT Corrective Services, including accepting all home and field visits that are requested, engaging in any recommended treatment, counselling, and programs and submitting to any requested drug and alcohol testing.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.