R v Edwin Jitesh Chandra

Motive 12. This sequence of events was relied on by the Crown as establishing a motive on behalf of the offender which led to him carrying out the act constituting the charge. It is also relevant as to the planning and premeditation which took place. 13. The precise date of the conversation between Ms Sharma and the victim, Mr Saini, and the recording of it is unclear. However, the Crown has telephone records indicating a course of telephone calls between Ms Sharma and the complainant, Mr Saini, as well as from the accused to Ms Sharma. There is one call made from Ms Sharma's telephone to the accused lasting approximately 11 seconds on 16 December 2010. Defence counsel points out that there are a number of calls shown on the records over the December 2010 period. 14. A schedule sets out those calls and voicemails between Ms Sharma and the offender (MFI 15). There was a work schedule which shows when Ms Sharma was caring for the complainant's mother at or about the relevant time. The Crown relies on the possible range of dates as being between 15 and 22 December 2010. 15. The Crown submits that the offender's motive for the commission of the offence was because he was upset, jealous and angry about the relationship between Ms Sharma and Mr Saini. This formed the basis for the circumstantial case mounted against the offender. That was essentially the only evidence before the jury as to the motive for this offence.

Findings 16. The jury's verdict, the evidence presented at the trial and the issues the subject of the addresses being essentially confined to the question of identification and the secondary question of intent, mandates a finding that the jury was satisfied that the offender was the person who carried out the act; further, that the defendant did not have the intent to murder or kill Mr Saini. The relevant intention was to pour petrol on Mr Saini and to ignite it. The planning and premeditation to carry out the acts is the subject of a separate finding - see below "Premeditation and planning".

Ms Sharma: findings 17. It is unnecessary for these purposes to make precise findings as to what occurred between Mr Saini and Ms Sharma. However, having observed Ms Sharma give evidence on both voir dire and during the trial as well as that of Mr Saini, I do not accept Ms Sharma's account in any area where it conflicts with that of Mr Saini. Her evidence denying or not admitting that she wrote her phone number and that of the offender in the agreement she had made with the CALD aged care care services organisation and the description of the relationship with the offender as a "cousin" were particularly telling in this respect. In that regard Mr Saini gave evidence that he was introduced to the offender as Ms Sharma's cousin. 18. There may well have been other arrangements or motivations involving Ms Sharma as far as Mr Saini was concerned. In that regard there are either messages or phone calls made by the offender to and from Ms Sharma immediately before and after the incident. It is also clear that she made a telephone call to Mrs Parsin Kaur to say that she was going to Melbourne later on and that she would not be available to care for her.

Incident 19. On 24 December 2010 the offender went to Mr Saini's home. He was carrying a box of chocolates with him. Despite the warning he says was given to him by Ms Sharma, Mr Saini invited the offender into his home. It was his belief that he and the offender would be having a discussion on what, if anything, had occurred and what, if any, relationship there was which may have led to the offender "warning off" Mr Saini. Whatever Mr Saini's state of belief, it is clear that he invited the offender into his home with the intention of having a discussion. He went to the stage of offering, and then going to make, the offender a cup of coffee. 20. While Mr Saini went into the kitchen and within the time it took to do that, the offender went outside to the car and returned with a gas bottle or cylinder which he then used, without warning, to either spray or throw petrol or a similar accelerant onto Mr Saini. It is open to the clear inference that the offender went outside to retrieve the gas bottle or cylinder once he realised that the victim was not in the immediate company of anyone. 21. The offender then set fire to Mr Saini.

Incident: findings 22. I accept Mr Saini's evidence in that regard and find that the offender came to Mr Saini's home on a pretext of having a discussion consistent with his bringing a box of chocolates to Mr Saini's home on Christmas Eve. Further, that once he went into Mr Saini's home and convinced Mr Saini of his non-violent intentions, he then went out to his car and returned carrying the petrol or accelerant in some kind of small gas bottle or cylinder. 23. This was not an opportunistic attack but rather a planned and premeditated attack by the offender on another man in that man's home into which the offender had been invited for a social discussion.

Intention 24. Defence counsel submits that an offence under s 46 is distinct from that of s 33, namely that because the charge was brought pursuant to s 46, the Crown only needed to prove that grievous bodily harm was caused by the intentional use of a substance, namely petrol. Accordingly, counsel submits that the offender should not be sentenced on the basis that he possessed an intention to cause grievous bodily harm, as this was not an element of the offence for which he was convicted. 25. I find that the relevant intention was to pour petrol on to a substantial portion of the victim's upper body, and to ignite it, thereby burning Mr Saini, which did cause grievous bodily harm. 26. The Crown also submits that the act of leaving the victim in the state he was in was indicative of a complete disregard for the victim. I accept that submission. However I emphasise that the jury verdict of acquittal on the primary count means that the jury did not find that the offender acted with an intention to kill.

Flight 27. After the incident, the offender went to Melbourne, and then after some days to New Zealand, where he lived between January 2011 and 1 December 2012. He was then identified, arrested and then extradited back to Australia on 13 March 2013. 28. Ms Sharma lived with him in New Zealand for a substantial period of that time. After the offender's detection by the New Zealand Police and his subsequent incarceration and deportation, she ultimately left New Zealand and returned to Australia on 9 February 2013. 29. The Crown relied on that departure as evidence of flight by the offender to avoid detection and arrest. The defence disputed at trial that the departure was for that purpose. Ms Sharma's evidence on the voir dire was that the offender went to New Zealand because he had children living there with whom he wanted to re-establish a relationship.

Flight: findings 30. I find that the offender's departure was for the purpose of avoiding detection and apprehension. That has led to the delays in bringing this matter to trial during which time the victim, Mr Saini, has had this matter hanging over his head without resolution. He has also had to give evidence in extremely traumatic circumstances for him. In that regard, the trial was delayed because Mr Saini could only give evidence for periods of 25 to 30 minutes of time because of his difficulties in breathing and the pain he was suffering. The trial was necessary - as was Mr Saini's attendance to give evidence - because of the offender's denial that he was the person who carried out the act.

Injuries 31. Mr Saini suffered third-degree burns to 36% of his body. These included partial-thickness burns on his face, and full thickness burns on his neck, chest, and both upper limbs and hands. 32. Audio evidence of the conduct of a photographic array was played which showed Mr Saini in hospital in January 2011 with extensive burns to his face and upper body - see below "Victim Impact Statement". 33. Mr Saini required multiple operations for debridement, and skin grafting of his neck, back, upper limbs and hands. He has had a pin inserted into his right hand, and other operations and scar releases for both hands. He anticipates that he will soon need to have a thumb amputated. He needs to have oil and moisturiser placed on his hand twice a day, and sometimes the skin bleeds on his shoulder as part of the process of relieving pressure following the burns. He suffers from intense itchiness which was apparent during the trial. He also has limited motion in his neck area. 34. As a result of the offence, he also developed shortness of breath, and was found to have scarring of his vocal cords. This was clear during the trial when the victim required constant breaks during his evidence in Court. He required insertion of a tracheostomy and eventual laser cordotomy for these injuries. 35. Mr Saini was in Concord Burns Unit for 3 months, and then underwent 3 to 4 months of rehabilitation at Ryde, as well as undergoing ongoing surgeries. 36. His injuries are ongoing. He is on long term antibiotics and he has permanent scars with a changed appearance, significantly reduced function in both hands and upper limbs. He has been treated for ongoing depression. Having read the reports and the Victim Impact Statement (see below), and having observed the victim, it is clear that the injuries have had a catastrophic effect on his life.

Medical Report - Professor Peter Maitz 37. Professor Maitz provided a medical report dated 23 June 2015, which became exhibit S5. 38. He confirmed the extent of Mr Saini's injuries, including the injuries to his hands, shoulders, and skin, mean that he does not expect Mr Saini to ever regain full range of motion in his neck. 39. Professor Maitz stated that with respect to Mr Saini's diminished breathing ability, he had reached maximum medical improvement. 40. Professor Maitz said that Mr Saini has been a very motivated patient over the last 4 to 5 years.

Medical Report - Dr Anthony Clifford 41. A medical report was also tendered on the sentence proceedings and became exhibit S6, which also confirms the injuries sustained by the victim but also the permanency of those.

Psychologist's Report by Dr Susan Pulman 42. A psychologist's report was tendered on sentence and became exhibit S7. 43. Dr Pulman details the psychological injuries suffered by Mr Saini. She sets out on page 3 that there is a strong stigmatisation of burn survivors, that subjects them - in general terms - to a variety of often overt dehumanising behaviours, including staring, startled reaction, double takes, whispering, teasing, and bullying, or other subtle reactions such as avoiding eye contact, ignoring, and pity. 44. Dr Pulman also said that Mr Saini presents with symptoms of post-traumatic stress disorder, anxiety, and depression. 45. Overall, Dr Pulman said that based on her interview of the victim, and the review of medical documentation, that there is evidence of substantial physical, psychological, emotional and financial harm to Mr Saini.

Victim Impact Statement 46. A Victim Impact Statement by Mr Saini was tendered on the sentence proceedings, which became exhibit S4. Mr Saini was present at the sentencing proceedings, however did not wish to read out his Statement in Court. 47. The injuries sustained by Mr Saini were outlined above. Further, as Mr Saini gave lengthy evidence during the trial, I was able to observe to some extent the physical injuries suffered by him and continuing discomfort caused by this offence. 48. In addition to his physical injuries, his Victim Impact Statement sets out the psychological and emotional impact of his physical injuries. That includes that due to the injury to his vocal cord, when he talks to other people, they do not understand him and he feels very ashamed as a result. Mr Saini said he has to repeat things more than once. Further, if he needs to call out to somebody else in the same room as him, he either has to walk to that person, or sometimes he hits the table or wall so that he can get their attention. He said, and I accept from my observations of him, that it is very hard for him to stand up because his knees and arms are not strong enough, and he is unable to place weight on his hands. 49. As outlined above, his skin gets very itchy. He said he is unable to use his hands to scratch his back, so sometimes needs to use doors or brick walls, despite bleeding from his sores. Further, he says that the bone infection in his thumbs has meant that he cannot button his shirts or zip his pants, and he has been told by his treating doctor that his thumbs may need to be amputated. 50. Upon his discharge from hospital, Mr Saini said that when he came home, he needed his friends and family to feed him, and clean him after he used the toilet. This continued for a period of one and a half to two years. He said that this inability to care for himself made him feel as though he had no hands, and very shameful, angry and helpless, particularly when he needed to ask his daughter to clean him. 51. Mr Saini said he needs to use both hands to pick up things, such as a cup of water. 52. He is unable to wear a turban, despite it being a religious requirement. 53. It appears from Mr Saini's Victim Impact Statement that he may need to consider surgery on his vocal cords and a tracheotomy may be necessary. He has been meeting all the costs of his treatment to date. 54. Further, since the incident, Mr Saini is unable to work. Prior to the incident, he was working as a taxi driver, working 14 or 15 hours a day. He said that before the incident, he was fit and used to manage his own funds. However, he is ashamed because now, he is dependent upon receiving the pension. 55. Mr Saini has suffered significant psychological harm, including that he has nightmares of him being set on fire, then somebody putting water on his body, and his skin peeling off. He said that he always worries, and that he is very paranoid about his security in his home. 56. Mr Saini says in his Statement that after the incident and whilst he was in hospital, he would have been better off if he had died, rather than being in constant pain. He said he contemplated suicide many times. 57. Mr Saini said that he now has nothing to do, and that he has no social or sex life, as he is not capable of any intimacy.

Evidence on sentencing proceedings 58. The offender did not give evidence either on the sentencing proceedings, or in the trial. In the circumstances there is nothing which can be taken into account in any way by way of remorse or contrition on the part of the offender.

Personal circumstances 59. The offender is aged 39 (DOB 11 April 1976). He was 34 at the time of the offence. He was born in Fiji to Fijian/Indian parents. His family situation was stable, both emotionally and financially. He lived in Fiji until he was 10 when his family migrated to Auckland, New Zealand. 60. He completed year 12 in high school. He has completed a Diploma in Information Technology. Following this, he worked in IT for about two years from age 23 to 25, he then worked as a technician in a vacuum store for a year before obtaining work as a truck driver. After immigrating to Australia in March 2004, the offender reported that he worked regularly as a truck driver over the next seven years until he moved back to New Zealand in 2011, where he continued to work as a truck driver until his arrest in November 2012. 61. He is a clearly intelligent and thoughtful individual. His planning and premeditation about this offence should be seen in that regard.

Pre-Sentence Report 62. There is no Pre-Sentence Report as none was sought by defence counsel.

Psychologist's Report/evidence 63. A report was tendered from Michelle Player, dated 3 September 2015 which provides as follows. 64. The offender told the report writer that he had difficulties adjusting after his relocation at age 10 to Auckland. The offender's father then commenced drinking alcohol problematically, with his brother. He told Ms Player that his father's alcohol abuse caused marital discord between his parents, and that he was privy to alcohol-fuelled conflicts between his parents. Eventually their marriage broke down when the offender was 18 years old, which left the offender "devastated". 65. The offender's father died in 2002 from liver failure as a consequence of his alcohol abuse. He described to the report writer that he experienced a prolonged grief reaction to this, however that appears to now be resolved. 66. The offender met his first wife when he was 20 years old, and they married a year later when she fell pregnant. He has two daughters to his first wife, now aged 18 and 15. 67. He told the report writer that his work as a truck driver led to frequent periods away from the family, as well as long hours, and that this was detrimental to his marriage. He also told the writer that his wife announced in 2008 that she was homesick for New Zealand, that she no longer loved him, and that she intended to return to New Zealand with their two daughters to be closer to her family. The offender told the report writer that he did not cope well with his wife and daughters' departure at the end of 2008. However, from that stage up until presumably his arrest, he was providing financial assistance for his daughters. 68. The offender met Ms Mohini Sharma, his current partner, at the beginning of 2009 through family members. He described to the report writer this relationship as being positive and supportive, and denied any prior substantial relationship difficulties, periods of separation or domestic violence. He described Ms Sharma as being "always loving and caring" and that "she liked my kids, the kids loved her", as Ms Sharma was, together with the offender, having regular contact with his daughters in New Zealand. 69. The offender affirmed that Ms Sharma remains supportive of him and visits him on a weekly basis in custody.

Drug use 70. Following his first wife and daughters' departure to New Zealand in late 2008, the offender told the report writer that he engaged in heavy alcohol use on his day off, and also in smoking methamphetamine ('ice') several times a week. He told the writer that his ice usage was, in part, a response to his marriage breakdown and, in part, a method to work longer hours and stay alert as a truck driver. 71. He told the report writer that he was using ice five days a week within two months of first use and he estimated that he was spending a significant portion (some $300) of his wages to fund his drug use. 72. He ceased using ice upon his return to New Zealand with Ms Sharma in January 2011. From that time, he told the report writer that he was not using any ice, but was still consuming large amounts of alcohol after work and over the weekend. He told the report writer that stressors such as his mother's ill health contributed to his alcohol use, and that it had become habitual for him, and he struggled to alter this routine. He said that he was still drinking alcohol to excess every day up to the time of his arrest in November 2012. He told the report writer that he has been drug- and alcohol-free since being in custody. 73. There is no evidence, and it is not submitted by counsel, that the offender was affected by alcohol at the time of the incident. 74. The report writer did not report ever being diagnosed with a mental health problem, or having ever been prescribed any psychotropic medication, or having any contact with mental health professionals, including school counsellors. He did not report any prior self-harm history or current suicidal ideation. 75. He also denied having any anger issues as a child or as an adult. He said to the report writer, "I hardly get angry". He said that on previous occasions when he felt angry, he said "I don't show it to anyone", and denied exhibiting aggressive behaviour. 76. The report writer said that based on the offender's self-report, the offender does not reveal concerns with regards to anger management and aggression.

Correctional history 77. The report writer stated that the offender's mood was stable, albeit lower than usual, and that overall, he was coping as well as can be expected given his being in custody. Further, the offender's case notes from the Department of Corrective Services (exhibit S3) indicate that he has been settled and compliant within the custodial setting, and there are no records of aggression or mental health concerns. 78. That (Corrective Services) Report shows that the offender has been using his time in custody to obtain further education accreditations in computing, and his employment has been excellent, with him being given positions of responsibility and trust by custodial officers, such as working in restricted areas. 79. The offender told the psychologist, Ms Michelle Player, that his partner's cousin may be able to assist him with securing employment upon release. He also said that he will have stable accommodation with his partner, Ms Sharma, upon his release from jail. 80. The report states that the offender has overall good psychosocial functioning, and does not exhibit any mental health vulnerability or any prior criminal offending. Further, he did not endorse aggression or violence. In terms of personal deterrence, it needs to be clearly stated that this form of violent assault, namely, the spraying of accelerant over the victim, Mr Saini, and using a cigarette lighter to set him alight, is a form of violence of the most heinous form.

Remorse / contrition 81. The offender continues to deny his involvement in the events relating to this offence. He maintained his stance in this regard when speaking to the report writer, and said that he was not involved in perpetrating this violent offence against the victim.

Prospects of rehabilitation 82. Notwithstanding the absence of any evidence of remorse, defence counsel relies on Alseedi v R [2009] NSWCCA 185 and submits that it remains open to the Court to find that there are good prospects of rehabilitation, and that it should so find. Counsel relies on exhibit S 11, the Case Note Report from the Department of Corrective Services which outlines the offender's employment whilst in custody, and submits that these reflect his capacity to successfully work in positions of trust, as well as undertaking further education, as outlined in that Report. 83. In addition, Ms Player states in her psychologist's report that jail is unlikely to impact upon the offender's recidivism risk, but rather will expose him to the more antisocial and violent influences of jail, in addition to prolonging his social isolation and increasing his feelings of helplessness in relation to assisting his various family members, including his mother who needs substantial financial assistance.

Authorities 84. Authorities shown on the public defenders website for offences of this nature, which are relevant include Park v R [2010] NSWCCA 151; R v VAA [2006] NSWCCA 44; Arun v R [2010] NSWCCA 214, although each of those cases were brought pursuant to ss 30, 33, and 47 respectively. 85. Park v R was a sentence on a charge brought under section 30 where the maximum penalty was 25 years, with a standard non parole period of 10 years. However, here the charge on which the offender has been convicted is brought under s 46 of the Crimes Act, which, similarly, has a maximum penalty of 25 years but with no standard non parole period. In that case, the Court said that the sentence there imposed was a high sentence. However, this case involved an actual burning of the person while that case did not.

JIRS statistics 86. The statistics for an offence under s 46 are very limited and of little guidance as they are taken from a pool of 4 cases. As is usual, there is no indication of the facts of those cases, nor of the personal circumstances of those offenders.

Consideration 87. Here, what was involved was a planned and premeditated attack by the offender on Mr Saini in Mr Saini's home. It was not an opportunistic attack but rather involved the offender establishing a pretext of coming to Mr Saini's home with a box of chocolates on Christmas Eve, following which the offender was invited into Mr Saini's premises. At that time, Mr Saini thought from the way the offender was acting that they were friends - see transcript Q/A 7374 and following. He said the offender was smiling when he came into his house and behaved in a way that did nothing to arouse Mr Saini's suspicion as to the violence which would follow. 88. The offender then went out to his car and returned with a cylinder containing petrol which he poured over Mr Saini and then ignited it. 89. As far as he knew there was nobody else available to come to Mr Saini's assistance let alone to help him extinguish the flames. It was only the facts that the 11-year-old JB ("Ms JB") was able to call 000 and follow the instructions to put Mr Saini in a shower, and that an ambulance was available immediately which meant that Mr Saini's injuries were not exacerbated. There was no remorse expressed, let alone any regard for the welfare of the victim. 90. I emphasise that I have not placed any weight on the potential for the injuries to have been worse in assessing criminality or as an aggravating factor: R v Heron [2006] NSWCCA 215.

Particular charge 91. In this case, the offender was charged and convicted of the alternative charge under s 46 and not of an offence under s 33. The primary, more serious charge on the Indictment, of which the offender was acquitted, was brought pursuant to s 27, namely, causing grievous bodily harm to the victim with intent to kill him. Each of ss 27, 33 and 46 carry the same maximum penalty of 25 years' imprisonment, however they differ in terms of their prescribed standard non parole periods. This offence - under s 46 - does not have a prescribed standard non parole period, whereas ss 27 and 33 have a standard non parole period of 10 years and 7 years respectively. Defence counsel submits that by reason of this distinction, this offence should be considered as less serious than the offences under ss 27 and 33: Cassidy v R [2012] NSWCCA 68 at [26]. Each offence and its criminality must be looked at in the light of the elements, all the circumstances and in terms of the maximum penalty established. 92. However I do need to take into account the objectives of sentencing as set out in the Crimes (Sentencing Procedure) Act 1999 which includes in s 3 the element of retribution. There are clear policy implications where the courts need to be concerned to ensure that the punishment embodies an element of retribution to ensure that people and their wider family or community groups do not take it upon themselves to exercise retribution.

Psychological injuries: Report by Dr Pulman 93. His understandable depression is set out in the medical documentation, namely the Report by Dr Susan Pulman, and corroborated in his victim impact statement. He said during the trial that he was petrified by the events that had taken place. 94. I observed him throughout the trial, particularly when he was giving evidence, and in my view, neither his evidence nor presentation was feigned nor manipulated. He was unable to give evidence for more than 20 to 30 minutes at a time nor to sit still for long periods. 95. Defence counsel submits that the court is only able to have regard to the consequences of an offence that was intended or could have reasonably been foreseen. In this regard, counsel relies on Josefski v R [2010] NSWCCA 41 at [4], [28] - [39] and the relevant cases cited therein. Although I accept the jury's finding that the offender did not intend to kill Mr Saini, I do not accept the submission that the actual harm suffered by Mr Saini was not foreseeable by the offender in acting the way that he did, in particular, the burns and injuries suffered by him. 96. Normally in such cases, I am unable to take into account the fact that the offence involved an infliction of injury, as it is a necessary element of a charge under s 46. However, to the extent that the injury inflicted significantly exceeds the minimum injury necessary to qualify as grievous bodily harm, it may relevantly be considered as an aggravating factor under s 21A(2)(g): R v Chisari [2006] NSWCCA 19. Here, it is clearly the case that the injuries suffered by Mr Saini at the time of the offence, then, as I observed, some 5 years later, at trial, and his ongoing medical issues, justify such a finding of aggravation. The impact on him has been dramatic - as set out in his Victim Impact Statement.

Public safety: Danger to others 97. While there was nobody else in the kitchen where the incident took place, there were other people in the house including an 11-year-old girl Ms JB and Mr Saini's elderly mother, Ms Parsin Kaur. 98. The fire which the offender ignited although primarily directed to Mr Saini's person took place in a confined space in a house with wooden exposed floors and where there were clearly wooden walls in the lounge area as shown in the photographs. There are clear public safety implications when a person is sprayed with petrol or similar accelerant in such confined spaces and where there is exposed timber work. 99. When the police attended the premises there was a smell of petrol and parts of burnt clothing as well as ash and fire marks at various parts of the house, on the floor and in the backyard of the home. The synthetic T-shirt being worn by Mr Saini was incinerated and reduced to a charred piece of the collar and a small section of rag. 100. There are clear public safety implications with any such act which must be apparent to those carrying them out, particularly in a residential home. A person who has been ignited with petrol is likely to become completely irrational and to run to an area where he may seek to have the flames doused. 101. In those circumstances there were clear implications for public safety to any other persons present in those premises.

Other aggravating features 102. The offence was committed in the vicinity of Ms JB who, at the time of the offence, was aged 11 years. Fortunately, Ms JB was not in the kitchen at the time the offender poured petrol over and ignited Mr Saini's clothes. However, she was only a few metres away from them, inside the house. It is unclear whether the offender was aware of Ms JB's presence inside the house. However it is clear from her evidence that she saw the offender, and that the offender had no regard as to the possibility of a child being present. 103. It was a planned and premeditated attack. The offender had obtained a gas bottle/cylinder which he had stored in his car. It is clear that his intentions were sinister, and the apparently friendly gesture of bringing with him a box of chocolates was duplicitous, and merely to feign a pretence of friendship with the victim, and presumably to gain entry into the house.

Findings as to the nature of the criminality involved 104. Here, the circumstances of this offence involving, as it does, clear planning and premeditation, and the clear intention to "send a message" means that the offence is of a very high order of criminality. Indeed it is hard to see why this offence would not attract a finding of being in or just below the worst case of criminality. 105. Additionally, the offence was committed in the victim's home. I am aware that the authorities are unresolved in this regard, namely whether the fact that the offender was invited into the home by the victim is or is not precluded as an aggravating factor under s 21A(2)(eb) - see Ingham v R [2011] NSWCCA 88 at [111] - [112] then the recent case of Aktar v R [2015] NSWCCA 123 per Wilson J at [45] - [64]; Hoeben CJ and Hulme J reserved their decisions on that aspect. Here, the invitation was secured by a false pretence or planned deceit by the offender. 106. The offender was a guest and was readily invited into the victim's home. That involves an element of trust. The offender had met the victim on several prior occasions, and the victim, despite being warned by Ms Sharma, extended his hospitality to the offender. 107. Here, the offender intended to use the petrol/accelerant and to ignite it. An inevitable consequence was the grievous bodily harm caused. 108. Burning a victim is an act of immediate, destructive, and horrifically painful violence. It must be denounced in the strongest possible terms. I note that whilst I consider this to be a particularly heinous type of violence, I have taken care not to consider this as an aggravating factor of the crime, given that it falls within the elements of an offence under s 46 of the Crimes Act. 109. In light of the current tensions as outlined above, and without treating these factors as aggravating features given the elements of the offence, they are still matters that bear upon a proper assessment of the objective criminality of this offence. 110. The offender also sprayed or poured petrol on the clothing covering the upper part of the victim's front body, where vital organs are located. 111. One factor that distinguishes this offence from what would be the worst case is that there was no gratuitous cruelty or injury inflicted beyond what was caused by the primary act of pouring petrol over the victim and igniting his clothing. 112. I also find that there is also an absence of any mitigating factors, other than that the offender had no prior criminal history prior to committing this offence. 113. I have considered the decisions of the Court of Criminal Appeal in Kendall v R [2015] NSWCCA 13; R v Twala (NSWCCA, unreported, 4 November 1994); and Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ (with whom Simpson and Adams JJ agreed). Further, Little v R [2010] NSWCCA 210 at [31] per Hall J (with whom McFarlan JA and Simpson J agreed) where it was held that the physical injury and impairment, disability and emotional and psychological consequences of the offence upon the victim are all considerations important to an assessment of objective criminality. 114. I have considered the relevant authorities in assessing the criminality of this offence when compared with the worst possible case. I do consider that this case was near to the worst category of such cases given several factors of heinousness, including the planning and premeditation; the nature of injuries to the victim; leaving the victim in a burning state; the false pretences upon which the offender was invited into the home by the victim, which involved bringing a box of chocolates, having the victim make a cup of coffee for him; and the offender's immediate departure from the scene.

General deterrence 116. In the circumstances of all the evidence and the matters set out, a penalty must be imposed which properly reflects the principles of general deterrence. 117. Here, I need to consider that the events occurred in the victim's own home, and whether that is an aggravating factor pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999. This was considered in Aktar v R [2015] NSWCCA 123 at [66] in the following terms: "Although there was evidence before the sentencing judge that the applicant attended the complainant's home for a spurious purpose - that is, to call upon family members whom he knew to have already left the house, it may be accepted for present purposes that the applicant was initially a guest in the complainant's home, and lawfully inside the premises. His status changed however, from the moment the complainant told him to leave the premises, that being prior to the commission of the offences." 118. There are substantial factual differences that distinguish that case from this, namely, that in this case, the invitation to the offender by the complainant was not at any stage withdrawn. However, that invitation may not have been extended to the offender quickly going back to his car and returning to the house with a bottle containing the accelerant. It is unlikely that that invitation would have continued, had the victim seen or known that the offender was bringing the accelerant back into the home. 119. In my view, what permission was there at the initial stages, was clearly no longer relevant when the offender returned with the inflammable liquid. It is also clearly relevant that the offender obtained admission essentially by a trick or subterfuge using the box of chocolates as an ostensible gift. 120. Both those factors should be reflected in the total sentence to be imposed from the point of view of both general and specific deterrence.

Personal deterrence 121. Here the offender has no prior convictions. He has no blemishes on his custodial record in the 2 ½ years he has been in custody. 122. Further, defence counsel submits that the offender did not commit any further offences between the time of the offence and his arrest in New Zealand.

Special circumstances 123. This has been the offender's first time in custody. He is fluent in English and there is no evidence of any existing hardship to him over and above what could be expected for any offender in custody. He is aged 39. There is no expression of remorse or contrition. Absent that, it is difficult to see how he will benefit from any extended period on probation. 124. Defence counsel relies on the psychologist's report in this regard, namely that the offender will benefit from drug and alcohol rehabilitation once he is released into the community. Counsel submits accordingly that the offender will benefit from a longer period of supervision and monitoring by Community Corrections (Probation and Parole) Service. As I outlined previously, there is no evidence that the offence was committed whilst the offender was under the influence of any alcohol or drug. I do not consider the actions or criminality of this offence to be an extension of his drug and alcohol abuse. 125. Defence counsel also submits that the offender should be the subject of special circumstances because he is more likely to suffer additional hardship and isolation in custody as his mother and his two children live in New Zealand. 126. There will be additional hardship and isolation by reason of his immediate family being overseas, and the consequent loss of contact with his mother and children. However in that regard, he is visited on a once weekly basis by Ms Sharma. Given those factors and the assessment by the psychologist's report writer, Ms Player, that he will benefit from drug and alcohol counselling in the community, I will find special circumstances to a limited extent only and vary the statutory ratio to one of 70% of the head sentence.

Sentencing options 127. Here, the requirements of general deterrence in particular are such that no other sentencing option - for example, a suspended sentence or an intensive corrections order, is appropriate.

Commencement date 128. The offender has been in custody since 1 December 2012. That incarceration has been solely due to this offence. He has no other prior convictions. It is appropriate that the sentence should be backdated to commence on and from that date.

Sentence

1. The offender is sentenced to a period of 16 years imprisonment to be served by way of a non-parole period of 11 years and 3 months backdated to commence on 1 December 2012 and expiring on 29 February 2024 with an additional term of 4 years and 9 months expiring on 30 November 2028.
2. That reflects my finding of special circumstances of 70%.

Parole 3. I recommend that when the offender is released on parole that he be subject to the following conditions: - a) Whatever supervision is deemed necessary by Community Corrections (Probation and Parole) Service; b) The offender inform the Community Corrections service of any address at which he is living and any change of address not less than seven days before such change occurs; and c) The offender comply with any treatment program organised in relation to his usage of methamphetamine or any other prohibited substance. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2015