R v Jackson [2018] ACTSC 40

Legal Aid ACT (Offender)

1. Connor Jackson, a young man of 19 years, has pleaded guilty to two counts of arson contrary to s 404(1) of the Criminal Code 2002 (ACT). The maximum penalty for the offence is imprisonment for 15 years, a fine of $225,000, or both.

2. He pleaded guilty at the directions stage in the ACT Supreme Court. While the Crown case was a strong one, the plea still has significant utilitarian value.

3. In the early hours of 5 May 2017, the offender and a friend of his drove to a car park located in McLure Place, Evatt. At that location, they approached a car that belonged to the offender's former girlfriend. The relationship with his former girlfriend had only recently ended. The offender set fire to the car using petrol as an accelerant. This caused the vehicle to be destroyed. Another car parked next to his former girlfriend's car also caught fire and suffered significant damage. His former girlfriend's car was worth $1500. These activities were observed by an onlooker who followed the offender and his friend in a vehicle and remonstrated with them about torching the vehicle. That person contacted police who arrested the offender's friend. The offender's friend made admissions to police which led to the arrest of the offender.

4. Two victim impact statements were tendered and read by the prosecutor in Court. The first from his former girlfriend, and the second from her mother. The statement of his former girlfriend describes the period since the offence as the hardest of her life. It describes the significance of her car, in particular, as a result of her being a carer for her mother and using the car for those purposes. It refers to the family violence order now in place in relation to the offender. It summarises the impact upon her life. The statement does not disentangle the effects of the offence from the breakdown of the relationship, a mental health diagnosis (apparently received by the former girlfriend) seemingly unrelated to the offence, and the offender's drug use and behaviour during the course of the relationship. Nevertheless, I accept that the offending conduct has had a significant impact on the victim, including a loss of trust and an increase in anxiety. That is consistent with the victim impact statement of her mother, which describes the adverse effect of the offender upon her daughter, but does not seek to dissect out the particular impact of the arson offence.

5. The offending conduct involved a degree of planning, although it was relatively unsophisticated. It did not involve a significant risk of injury to persons, but only to property. It was committed at night. It was committed with the motive of revenge in relation to his former girlfriend. It involved an accelerant. The property burnt was of considerable value to the owner - but, having regard to the unlimited range of value to which the offence is applicable, and the great variety of circumstances and motivations, it is at the low-end of the spectrum. I assess the offending conduct as being in the low to mid-range of objective seriousness for the offence.

6. The personal circumstances of the offender are disclosed in the Pre-Sentence Report as well as in other documentary material tendered on behalf of the offender.

7. As a child, the offender had a history of being aggressive towards his mother. She attributed this to having "early childhood traits of Autism spectrum disorder, Asperger's,

8. He had been in a relationship with the victim of the offences. This ended shortly prior to the offences occurring. She currently has a family violence order in place against him.

9. His parents separated when he was young. He has a constant supportive relationship with his mother and an interrupted relationship with his father. It was interrupted between the ages of three and 16 years, although he has increased contact with his father in the last two or three years. He has presently entered into a new relationship which appears to be a positive one. He resides with one or other of his parents.

10. He completed Year 12 at Hawker College and attained tertiary qualifications in automotive technology. He is currently working as an arborist and will be commencing an apprenticeship in horticulture this year. He has a modest income from that work.

11. He has a history of excessive alcohol and drug consumption. Screening tools administered by the author of the Pre-Sentence Report indicated that over the previous 12 months he had a substantial level of illicit substance use and that his alcohol use was risky or hazardous.

12. He displayed, as his mother indicated, early childhood traits of autism spectrum disorder, Asperger's, bipolar, anxiety and depression. He tended to see the world in

black-and-white terms and received assistance from his general practitioner at the time to address calming strategies.

13. He has received assistance from the Adult Mental Health Unit in relation to thoughts of

self-harm and suicide. He is not undertaking any mental health treatment at moment.

14. Progress notes of the Canberra Hospital predating the offence described his history as follows:

Long [history of] dysthymia, low self-esteem, poor coping skills, at times anxiety attacks when under stress, angry outbursts, burning himself with lighter to release his tension, said he has not done self harm for a year. On and off suicidal ideas when feeling down. Reported that these are long term issues.

This is complicated by self soothing with drugs and alcohol ...

15. A few days prior to the offences, he was treated at the Emergency Department of The Canberra Hospital after jumping off a pedestrian underpass in an apparent attempt to kill himself. He suffered bruising to his head. He is described as having "likely cluster b personality traits". This was consistent with his previously reported diagnosis of borderline personality disorder. Following the arson incident, he reported that he had voices in his head all the time telling him he is useless and to harm himself. These worsened when he was anxious. The notes recorded in relation to the arson incident: "he now recognises this was a foolish act and is eager to present to court to explain his contrition. He says he will have nothing more to do with [his previous girlfriend] ...".

16. He expressed remorse in relation to his behaviours, but was recorded by the author of the Pre-Sentence Report as displaying little insight into his actions and the effect that they had on the victim or the danger that they presented to the community.

17. He was assessed as being at a low-to-medium level risk of reoffending. He was assessed as not suitable for a community service order because of his employment commitments.

18. Notwithstanding the adverse comments of the author of the Pre-Sentence Report about his lack of insight, I accept that he is remorseful in relation to the offending conduct.

19. Four references were tendered on his behalf. All were positive. Of most use were the references from his father and his employer.

20. He has only one previous conviction for drug driving. He is therefore entitled to considerable leniency.

21. He spent 123 days in custody prior to today solely attributable to the offence. This gives, for the purposes of a custodial sentence, a backdate date of 6 October 2017.

22. He has also, since being released on bail in September 2017, been subject to bail conditions including a curfew and a requirement to submit to urinalysis.

23. The offender comes to court with a minimal criminal history and mental health difficulties which do not appear at this stage to have a very clear diagnosis. There appears to be a relationship between those conditions and his offending behaviour - as those conditions are likely to have made him less able to cope with the breakdown of the relationship with his former girlfriend. That consideration lessens, to some extent, the utility of using the offender as a vehicle for general deterrence, although general deterrence must remain a significant factor.

24. Positive signs for the future include: his current employment; the fact that he has taken on an apprenticeship relevant to that employment; and a new, and apparently successful, relationship. However, having regard to his mental health history, only time will tell whether he maintains this positive course.

25. Having regard to the maximum penalty, arson is very clearly a serious offence. The present offence did not involve a significant risk to persons, but rather was directed at property. Taking account of the offender's minimal criminal history, his youth, his remorse, the influence of his mental health upon his offending behaviour and his plea of guilty, he is entitled to considerable leniency. Regard must also be had to the fact that his period on remand was his first period in custody and, for a young man without a criminal history, this would have had a significant impact on him.

26. The fact that he has spent 123 days in custody on remand, due solely to these offences, is a fact relevant to the sentencing process. Because of the motivation for the offending conduct and the seriousness of the offences, I am satisfied that a custodial sentence is the only appropriate penalty. Further, I consider that it is appropriate that the sentence be served by full-time detention equivalent to the period that he has already been in custody on remand. It is appropriate that the sentences for the two offences be wholly concurrent with each other, the damage to the second vehicle being an unintended consequence of the damage to the first and resulting from the same conduct as the first. Had he not pleaded guilty, I would have imposed a six month sentence but suspended the outstanding portion of the sentence from today and made him subject to a good behaviour order.

(1) On each of charges CC2017/5014 and CC2017/5015, the offender is sentenced to imprisonment for a period of four months from 6 October 2017 until 5 February 2018.

(2) I note that each sentence is equivalent to the period spent in custody on remand, that each has been fully served, and that he may be released forthwith.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.