R v Huitt [1998] VSCA 118

Court of Appeal (Vic)|1998-11-24|Before: WINNEKE, P., CHARLES and BUCHANAN, JJ.A.

The applicant now seeks leave to appeal against sentence on the grounds that -

(1) The learned judge erred as to the facts, or alternatively incorrectly interpreted the material contained in the depositions relating to the role and level of involvement of the applicant.

(2) The learned judge failed properly to assess the weight to be given to the answers given by the co-offender in his record of interview.

The circumstances giving rise to these offences were as follows. On Saturday 25 October 1997 the applicant and Rolfe, together with Travis Ray Bradshaw and several others, were living as squatters in rooms on the fifth floor of the vacant Peter McCallum Cancer Institute building at the corner of Little Lonsdale and William Streets, Melbourne. They regularly went to the Gill Memorial Home for meals. On the morning of 25 October, the applicant and Rolfe went with Bradshaw and Wayne Mortimer to the new Aquatic Centre at Albert Park to have a swim. They were allocated a locker upon their arrival and when it was opened they saw that a bag belonging to somebody else had been left behind. Upon finishing their swim they took the bag with them. When they returned to the Gill Memorial Home at 6 p.m., an argument broke out between the men about the distribution of the contents of the bag, and Bradshaw had a separate dispute with Rolfe about a debt of $50 alleged to be owing by Rolfe to Bradshaw. The applicant and Rolfe became aggressive towards Bradshaw and Bradshaw punched Rolfe. The applicant and Rolfe then returned to the Peter McCallum Institute and picked up an abandoned fire extinguisher, which they took to a petrol station at the corner of Spencer and Batman Streets. They purchased $2-worth of petrol from the service station, which they inserted into the fire extinguisher and then re-pressurised it. Leaving the service station, they then tested the petrol-filled fire extinguisher by squirting petrol while walking back through the Flagstaff Gardens. They then returned to their room at the Peter McCallum Institute. Some time later, Rolfe entered the room where Bradshaw and Mortimer were, carrying the fire extinguisher, and sprayed petrol all over Bradshaw. Mortimer managed to escape from the room. Bradshaw then ran out of the room and confronted Rolfe. He asked Rolfe what he was doing and Rolfe said, "Pay back time, do you still want to fuck with me now?" Bradshaw saw that Rolfe was holding a cigarette lighter and flicking the lighting mechanism. The applicant was, at the time, in the kitchen with one Caroline Edelsten, who said that the applicant then closed the kitchen door, blocking her view of Rolfe and Bradshaw. Seconds afterwards, Edelsten heard Bradshaw scream as he turned into a ball of fire. Bradshaw ran towards the others engulfed in flames and screaming with pain, and the applicant was heard to say, "That's what you get for fucking with us, you little cunt". Bradshaw ran out of the squatters' area, down the stairs and out of the building, shedding his clothing. Once outside he had shed most of his clothing but was still burning. He ran towards the Gill Memorial Home trying to pat down the flames and protect his genitals from burning. The victim later had severe and extensive burning to his head, back, arms, hands, buttocks and the backs of his legs, which covered 55 to 60 per cent of his body. An ambulance officer saw that he would die without immediate treatment. He was at once taken to the Royal Melbourne Hospital and later transferred to the Burns Unit at the Alfred Hospital.

On 30 October 1997 the applicant was arrested in Greensborough and later took part in a tape-recorded interview. He did not make any specific admissions to what had occurred and said that he did not remember much. He did not, however, dispute the allegations and readily conceded that they must be correct.

It is convenient to take grounds 1 and 2 together. Mr Marron, who appeared in this Court on behalf of the applicant, made a detailed examination of the circumstances preceding and at the time of the offences. He submitted that the learned judge had put too little weight on the circumstances of the fight between the victim and the co-offender. He submitted that the applicant's actions and lack of involvement in that fight were significant. Mr Marron submitted that the learned judge had wrongly implied that the applicant had known that the purpose of filling the fire extinguisher was to cause the victim harm; and that, on the answers given by both offenders, the applicant was not told and did not know that the co-offender intended anything other than putting unlit petrol on the victim. He also submitted that the learned judge had wrongly assigned the applicant a leading role in testing the fire extinguisher in Flagstaff Gardens. Mr Marron submitted that in relation to the offending itself the learned judge had incorrectly stated the role played by the applicant and his part in these offences and further had failed properly to assess the weight to be given to answers by both the applicant and the co-offender in their respective records of interview.

At the outset of the hearing of the plea, the prosecutor outlined the circumstances, stating that the two offenders had obtained a fire extinguisher and had taken it to the corner of Spencer and Batman Streets where they filled it with $2-worth of petrol, and then tested the extinguisher at least once in the Flagstaff Gardens on the way back to the Peter McCallum Institute. He said that when they all got together they squirted the victim and the victim was set on fire. He said it was the co-offender Rolfe who had triggered the petrol-squirting and Rolfe who triggered the cigarette lighter. The prosecutor continued that the presence of the applicant throughout the whole process demonstrated that he was acting in concert and/or aiding and abetting, and that whilst not immediately present at the time of the lighting, he demonstrated his willingness and involvement in the remarks he made as the victim ran past him being consumed by flames.

Counsel for the applicant during the plea put it to the judge that a term of imprisonment for the applicant was plainly warranted, and, despite his lesser involvement in the offence, basically accepted the prosecutor's version of the circumstances (at p.20 of the plea transcript), including the statement that the applicant had said "That will teach you to fuck around with us, you little cunt" as the victim ran past him in a ball of flame.

During the plea the judge gave the applicant's counsel the opportunity of contesting any matters in the depositions, but, with minor and, I think, irrelevant exceptions, counsel declined to do so. The applicant pleaded guilty to the offence - in itself an acceptance of his willing involvement in the attack on the victim.

All these matters are, of course, quite inconsistent with Mr Marron's submission that it was not established that the applicant knew what was going to happen. In these circumstances, grounds 1 and 2 must fail.

I turn then to grounds 3 and 4. Mr Marron's submission was that there were substantial differences between the role and level of involvement of the co-offender as against that of the applicant, and further differences between them in terms of the co-offender's background, prior convictions, personal circumstances and absence of remorse as against the circumstances of the applicant. The learned judge in his reasons for sentence plainly had in mind the question of parity, expressly stating in relation to the applicant that because of his lesser role and the fact that he had only one previous court appearance, he was sentencing him to a head sentence of four-and-a-half years compared with the six years' imprisonment he was imposing on the co-offender, and fixing a non-parole period less than the co-offender's by one year.

The learned judge had before him the opinion of a psychiatrist (Dr Ruth Vine), as to the applicant's mental state. Dr Vine did not find any evidence to suggest that the applicant was psychotically disturbed, or that he was suffering any illness such as schizophrenia. In her view the applicant's apparent alteration in behaviour and withdrawal from his family and others were related to the combination of his marijuana usage and various psycho-social stresses. Her opinion also was that the applicant's behaviour at the time of the offence was significantly affected by both his consumption of Flunitrazepam and his social situation. She accepted that he is now deeply remorseful regarding the offence and remains somewhat perplexed as to how it came about.

The applicant's case is, as the learned judge said, somewhat puzzling, and I would add very sad. The applicant comes from a strong family background with decent, caring parents, and is a person of considerable intelligence who lost his way in life at the end of his teenage years. But, taking into account the applicant's plea of guilty, degree of remorse and lack of relevant prior convictions, together with his mental state at all times, it cannot, I think, be said that the principle of parity was offended in the sentence imposed or that the sentence was manifestly excessive. This was an appalling crime resulting in horrendous injuries to the victim, as the learned judge pointed out. The victim might well have died in this incident, and the applicant and the co-offender are fortunate indeed that they did not face charges of murder or attempted murder. The victim impact statement tendered shows that the victim must be scarred physically and emotionally for life. This was, as the prosecutor submitted and the learned judge accepted, a bad example of the crime of intentionally causing serious injury, and the elements of specific and general deterrence and denunciation would all have played a substantial part in the determination of an appropriate sentence.

The sentences imposed on both offenders in my view were merciful rather than excessive. I think the application should be dismissed.

The formal order of the Court is that the application for leave to appeal against sentence is dismissed.

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