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[2019] ACTSC 75
General information, not legal advice.
Supreme Court of the ACT
2019-03-22
Loukas-Karlsson J
Original judgment source is linked above.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - arson - delay - application of Verdins principles - plea of guilty - offences in custody - totality
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Choi v R [2007] NSWCCA 150
Hili v the Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
R v Brown [2017] ACTSC 284
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Martin [2017] VSCA 291; 20 VR 14
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Pham [2015] HCA 39; 256 CLR 550
R v Raeyers [2015] ACTSC 134
R v Todd (1982) 2 NSWLR 517
R v Verdins [2007] VSCA 102; 16 VR 269
R v Wrigley [2015] ACTSC 114
1. On 30 July 2018, Malcolm Dunn (the offender) pleaded guilty to an offence of arson (CC2018/618) contrary to section 404(1) of the Criminal Code 2002 (ACT).
2. The maximum penalty for the offence is a fine of $225,000, 15 years of imprisonment, or both.
3. The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle.
4. In short summary, on 14 April 2017, while the offender was a prisoner at the Alexander Maconochie Centre (AMC) in Hume, the offender set fire to the bedding of his cell.
5. The cost of repair to the cell totalled $2,538.20
6. Counsel for the offender submitted that although arson is always a serious offence objectively, the particular facts of this case, including moral culpability, render the offence at the lower end of the scale of objective seriousness. Counsel submitted that the risk to persons and property was low, and that the arson took place in a high security environment with officers experienced in dealing with crisis situations nearby. Further, the fire was extinguished without the assistance from the fire brigade.
7. The prosecution made submissions in accordance with R v Brown [2017] ACTSC 284 (Brown). The prosecution submitted that the fact that the fire did not start or spread quickly is no particular consolation, given that materials that do not burn readily may release dangerous gases, which may be particularly dangerous in confined spaces such as cells at the AMC. Further, it is relevant that a fire such as the one begun by the offender may endanger not just the offender himself, but others who are constrained in terms of escaping the danger, including other prisoners or Corrective Services officers.
8. I find the offence to be toward the lower end of the scale of objective seriousness taking into account the relevant matters discussed above.
9. In evidence before me is the pre-sentence report (PSR) prepared for the offender.
10. The offender is a 41 year old man who was born in Queanbeyan, NSW, and identifies as an indigenous Australian. The offender was raised by his mother and has no recollection of his father, which the offender believes contributed to his involvement with a negative peer group and anti-social behaviour. The offender described his childhood as difficult to the author of the PSR, spending periods of time in youth half way houses in the NSW region. The offender has no ongoing contact with his mother or siblings.
11. The offender has two children aged 19 and 18 from a previous relationship, with whom he maintains contact through social media. The offender has a further child from another relationship who he is yet to meet.
12. The offender reported being homeless until he was most recently remanded in custody, having been evicted from social housing. The offender left school after completing Year 7 and has since completed a Certificate course in Business. He is currently in receipt of a disability support pension, but had previously been employed in outdoors based work. The offender indicated to the author of the report that he may be able to obtain employment in a Wetlands project. The offender has been employed in the AMC in ground maintenance and in the kitchen during the current remand period.
13. The offender has a previous history of alcohol abuse, and stated that he ceased alcohol consumption at 25 years of age. The offender was dependent on heroin from the age of 21 until 2016, when he ceased using heroin. The offender was on a methadone prescription prior to the current remand period, but ceased his prescription, resulting in the resumption of heroin use. The offender has recommenced his methadone prescription since his return to custody.
14. The offender reported no physical health issues, but is currently prescribed medication for mood and anxiety disorders, and is in receipt of a disability support pension for a severe psychiatric condition. When discussing the current offence, the offender commented that he experiences suicidal ideation.
15. The report concludes with an opinion that the offender was assessed as a "high risk of reoffending". The author notes that the offender has few, if any, protective factors that can assist him in leading a prosocial lifestyle, and has multiple criminogenic risk factors, including his drug use, mental health issues, accommodation issues, lack of prosocial activities and peers, and antisocial values and attitudes. The author reports that despite the offender's recognition of the danger of his offending, his ongoing suicidal ideation is cause for concern. The author concludes that unless the offender commits to addressing his risk factors, it is unlikely that his risk of reoffending will reduce.
16. The author also notes that the offender has limited financial resources and would have difficulty paying a fine.
17. Counsel for the offender submitted that the PSR and Dr Furst's psychiatric assessment report, discussed blow, paints a "very sad picture of a man who has had a highly disadvantaged and difficult life, indeed, from childhood".
18. Also in evidence before me was a psychiatric report under the hand of Dr Furst, dated 24 January 2019.
Psychiatric and Psychological Mitigating Factors
19. Dr Furst's report included the following in relation to psychiatric and psychological mitigating factors:
The available history and medical records suggest that Mr Dunn has a lengthy history of schizophrenia associated with impaired psychosocial function and chronic auditory hallucinations, generally of a derogatory or command nature. He is socially isolated, homeless and dependent on drugs, especially heroin and amphetamines, which likely exacerbate his mental illness and tendency towards depression, hopelessness and self-harm.
The medical records from ACT Mental Health at the AMC in April 2017 indicate he was increasingly frustrated with his management and isolation at the time, was still hearing 'voices' and was prone to paranoid thinking, including that his food had been poisoned. In my opinion, his actions in setting fire to his mattress in his cell were most likely impulsive and directed towards killing himself. His schizophrenia, depression, insomnia and unstable personality mitigate against the seriousness of his actions.
20. In relation to community options, Dr Furst's report included the following:
When released to the community on parole, I would recommend that he be [placed] under City Community Mental Health Team [or other local mental health team depending on where he lives] pursuant to a Community Treatment Order (CTO). He will require longer-term case management and assertive psychiatric treatment.
21. Dr Furst stated the following regarding the effects of a custodial sentence on the offender:
Given that Mr Dunn has a serious mental illness in the form of schizophrenia and is prone to paranoid thinking, auditory hallucinations and mood instability, self-harm and/or suicide attempts when unwell, the custodial environment is likely to be more onerous for Mr Dunn that the theoretical 'average' inmate, including, but not limited to, the likelihood of exposure to violent incidents, increased anxiety and a destabilization of his illness.
22. Dr Furst's ultimate prognosis was the following:
Mr Dunn has severe mental illness in the form of schizophrenia associated with psychosocial impairment and complicated by the effects of substance abuse, intermittent non-adherence to medication, homelessness, social isolation and an underlying personality disorder. He is likely to experience psychotic symptoms of a residual type, especially auditory hallucinations and depression. His risk of re-offending is medium-high, especially if not adequately managed in the community and/or if he relapses into using heroin and methyl amphetamines again.
In my opinion, Mr Dunn will require stable accommodation, assertive psychiatric treatment over the longer-term, and specialist drug and alcohol services, in accordance with the recommendations outlined in the treatment plan above. In my opinion, such measures which would reduce his chances of relapsing into psychosis and drug abuse, thereby reducing his risk of re-offending.
23. The Victorian Court of Appeal decision of R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) at [32] identifies six ways in which impaired mental functioning may be relevant in sentencing:
24. By reference to those considerations and to the evidence before me, I am satisfied:
(a) That the offender's moral culpability for the offence is reduced by reason of his mental impairment;
(b) That a sentence of imprisonment would weigh more heavily on the offender than it would on a person in normal health; and
(c) General and specific deterrence should be moderated in the case of the offender.
25. The PSR notes that the offender agreed with the statement of facts, and that with the benefit of hindsight, he could see how his actions were reckless. The offender reported that the offence was a suicide attempt, and at the time, he had only been concerned with his end goal.
26. The offender has a significant criminal history in the ACT, NSW and Queensland, including a number of property, traffic and violent offences. The offender has incurred custodial and non-custodial sentences as a result of his previous offending.
27. The author of the PSR notes that ACT Corrective Services records indicate that the offender has failed to comply with bail orders in the past.
28. The offender was on remand for other offences at the time of the offence. He was released on 2 January 2018, but remanded on other offences on 9 July 2018. During his most recent remand period, he has incurred disciplinary actions on five occasions for assaulting other detainees, threatening to assault an officer, contravening directions and refusing to undergo drug testing.
29. On 20 February 2019, the offender was sentenced in the Magistrates Court for one count of burglary, one count of driving whilst disqualified, one count of theft and one count of unlawful possession of stolen property. The offender received a total effective sentence of 17 months of imprisonment, backdated to commence on 7 July 2018, and expiring on 6 December 2019. The Magistrate imposed a non-parole period of 10 months, expiring on 6 May 2019.
30. The offender entered a plea of guilty to the offence at the earliest opportunity in the Magistrates Court. Counsel for the offender submitted that a 25 percent discount was appropriate. The prosecution did not cavil with that submission. I accept this submission as it accords with my view. I therefore allow a 25 percent discount for the plea of guilty.
31. The offender had been remanded in custody since 3 January 2017 at the time of the offence. He was released from custody on 2 January 2018, but was remanded in custody on other offences on 7 July 2018.
32. The Crown submitted as a result that the offender has spent no time in custody solely referrable to this offence.
33. The offence occurred in April 2017, and the summons was not issued until March 2018. The first mention of the matter in the Magistrates Court did not take place until 30 July 2018.
34. I take this unexplained delay into account on sentence in accordance with the authorities: see R v Todd (1982) 2 NSWLR 517.
35. The principles relating to accumulation, concurrence and totality are well established. The Court in R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [13] made clear "the discretion is generally circumscribed by a proper application of the principle of totality". The Court emphasised in relation to concurrency and accumulation that:
It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.
36. Further, in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 66 it was underlined that the totality principle is applied where an offender is serving an existing sentence: see also Choi v R [2007] NSWCCA 150 at [157].
37. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
38. I was provided with two tables of comparable cases by the parties, and was referred specifically to R v Raeyers [2015] ACTSC 134 (Raeyers) and Brown.
39. In Raeyers, the offender pleaded guilty to a charge of arson committed whilst in the Management Unit of the AMC, shortly after he was first incarcerated. The offender covered the camera inside the cell, and later lit clothing and bedding in his cell. Corrections Officers found the cell filled with black smoke, and extinguished the fire. The offender was 29 years old at the time of sentence, and had a history of poly-substance abuse from a young age. The offender had mental health problems, which may have contributed to the commission of the arson offence. The sentencing judge considered that the offender had an "absolutely shocking criminal record", and noted that he had been subject to a number of disciplines whilst in the AMC. The offender received a sentence of 12 months of imprisonment, reduced from 18 months of imprisonment on account of the plea of guilty. An existing non-parole period of 7 months was increased to 11 months.
40. In Brown, the offender pleaded guilty to three offences, including two offences of arson. The offender, who had been on parole, had been brought before the sentence administration board for failing to comply with parole conditions. The offender was returned to custody and was taken to the Magistrates Court cells, where he lit fires in two separate cells. Both fires were extinguished by corrective services. There was delay in charging the offender with the offences, and the offender absconded to Queensland for some period before being sentenced. The sentencing judge considered that the offences were committed out of anger for having parole revoked, and that the offences were of low-level seriousness. The offender was 21 at the time of the offences, but was 26 at the time of sentencing. The offender had both substance abuse issues and had been diagnosed with Intermittent Explosive Disorder and Anti-Social Personality with psychotic traits. The offender was sentenced to 16 months of imprisonment for the first arson offence, and 11 months of imprisonment for the second arson offence. The total sentence was 20 months of imprisonment, with a non-parole period of 15 months.
41. In R v Wrigley [2015] ACTSC 114, Refshauge J at [34] stated the following:
34. In R v Graham (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 17 of 2009, 23 September 2009), I reviewed the authorities concerning sentencing for arson. A number of the principles may be established from the authorities as follows:
(a) arson may be committed for many reasons: R v Dowell (1982) 6 A Crim R 113 at 116;
(b) the crime might also be committed in a wide variety of circumstances: Halden v R (1983) A Crim R 30 at 38-39;
(c) the real gravity of the offence lies in the intent with which it is committed: Storey (1984) 6 Cr App Rep (S) 104;
(d) the crime is often difficult to detect which generally requires a deterrent sentence: Dowell at 116;
(e) nevertheless, a custodial penalty is not inevitable: R v Perrone (1989) 43 A Crim R 366 at 368;
(f) the amount of damage is relevant (R v Hall (1979) 28 ALR 107 at 117) but is not necessarily a measure of the culpability of the offender (Storey at 107); in summary, the damage is relevant but not determinative: R v S (a child) (1992) 60 A Crim R 121 at 134;
(g) there is no "tariff" for the offence: R v James (1981) 27 SASR 348 at 351;
(h) as with other offences, a significantly relevant mental health issue may result in general deterrence playing a much less significant role: Parnis v The Queen [1993] FCA 624; (1993) 49 FCR 304 at 306-7, but does not mean, however, that imprisonment will not be appropriate even where there are mental health issues: R v Ray (Unreported, Supreme Court of Tasmania, Green CJ, 20 April 1983);
(i) aggravating circumstances include that the offence is committed at night (Thomas (1988) 10 Cr App R (S) 386), use of an accelerant (Turill (1981) 3 Cr App R (S) 156), the commission of the offence for financial gain, such as insurance fraud (Dowell at 116), commission of the offence for the purpose of revenge (Campbell v The Queen (Unreported, Supreme Court of Tasmania, Neasey, Nettlefold, Bettingham-Moore JJ, CA 76/1984, 7 September 1984) at p 4), commission of the offence for the purpose of destruction of evidence of other crimes (Riley v The Queen, Unreported, NSW Court of Criminal Appeal, 3 April 1996) at p 3; Targett v The Queen (Unreported, Supreme Court of Tasmania Court of Criminal Appeal, Cox CJ, Underwood and Slicer JJ, CCA 38 of 1996, 5 November 1996) at p 1) and the potential risk of injury to life or serious harm to persons, including fire-fighters (R v Glover [2002] NSWCCA 376 at [53]- [57]); Porter v R [2008] NSWCCA 145 at [80]);
42. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
43. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, rehabilitation, accountability and denunciation, are sentencing considerations. In this case, general and specific deterrence are moderated in accordance with the Verdins principles as discussed above.
44. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Given the nature and circumstances of this offence, this is not a case in which an alternative to prison is appropriate in my view.
45. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
46. Childhood disadvantage does not "diminish with the passage of time and repeat offending" but does not have the same "(mitigatory) relevance for all purposes of punishment": Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
47. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]- [203], [273] and [347]; R v Martin [2017] VSCA 291; 20 VR 14 at [19]- [30].
48. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, subjective matters, and totality.
49. The appropriate sentence for the offence of arson is 16 months of imprisonment, reduced to 12 months on account of the discount for the plea of guilty.
50. I propose to make the sentence partially concurrent and partially cumulative pursuant to s 72(3) of the Sentencing Act. The current non-parole period will be increased by two months.
(a) I record a conviction in relation to the offence.
(b) In respect of the offence of arson (CC2018/618) the offender is sentenced to a term of 12 months of imprisonment, commencing on 7 June 2019 and ending on 6 June 2020.
(c) I set a new non-parole period to expire on 6 July 2019, that being a period of 12 months from the date on which the initial non-parole period commenced (7 July 2018).
I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.
R
Dunn [2019] ACTSC 75
(1988) 166 CLR 59
(1982) 2 NSWLR 517
(1998) 194 CLR 610
(2004) 78 ALJR 616
(1979) 28 ALR 107
(1981) 27 SASR 348
(1993) 49 FCR 304