R v Keighran

Assessment of Objective Seriousness

1. I turn then to my assessment of the objective seriousness. The offender is criminally liable for the offence on the basis of the doctrine of joint criminal enterprise, the evidence before me on the balance of probabilities establishing that it was the late Mr McKenna who lit the fire. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant.
2. I have already noted the offender was not the person who lit the fire. I also am satisfied on the balance of probabilities that it was the late Mr McKenna's idea to burn the hotel down, it would seem, as some sort of retaliation for having been required to leave the hotel earlier that night. The offender's role was one of being an assistant to the late Mr McKenna, although, in saying that, his role in the offence was still a significant one. The offence of its very nature involved a risk to public safety, it caused considerable damage to the hotel and there was a risk of damage to other buildings. The offender's evidence in cross-examination, together with the fact he was a regular at the hotel, satisfies me beyond reasonable doubt that he was aware of the location of other commercial premises that were nearby and the risk to them. While, as a matter of law, the offender is not responsible for the death of Mr McKenna, his death highlights the risk associated with such offending. The level of planning was limited and rudimentary.
3. The offence and the offender's role in it are clearly serious. Although not strictly necessary, given no standard non-parole period applies, I consider the objective seriousness of the offence falls below the mid-range but clearly not at the bottom of the range.

The Offender's Subjective Case

1. I turn then to the offender's subjective case. The offender's date of birth is 20 September 1985, so he is 32 now and was 30 years of age as at the date of the offence. He has a limited criminal history. He was fined for certain traffic offences in 2007 and received a further fine for an assault occasioning actual bodily harm in 2008. In 2009 he was fined for some summary public order offences and an offence of property damage. He had a period in custody from 26 September 2014 until 4 December 2015 in relation to an offence for which he was ultimately acquitted.
2. In relation to the offence I am to sentence him for, he has been in custody since 21 July 2016, although during the period 21 May through to 20 October 2017 he was serving a 5 month sentence of imprisonment for an offence of common assault which occurred while he has been in custody.
3. In my view, his criminal history is limited and does not disentitle him to at least some leniency in this sentence.
4. The offence occurred while on bail on the charge of which he was ultimately acquitted. The fact the offence was committed while on conditional liberty is an aggravating factor (see s 21A of the Crimes (Sentencing Procedure) Act). It is immaterial that he was ultimately acquitted of the charge to which the bail related (see R v Harmouche (2015) 158 A Crim R 357).
5. There is a presentence report which provides background information about the offender. None of the information contained in the presentence report was disputed during the offender's cross-examination. Prior to going into custody, he had been residing with his mother and brother. He intends, upon his release, to reside with his brother. It is clear from the presentence report, testimonials and from the attendance of family members at the sentencing hearing and today that the offender continues to enjoy family support and will do so upon his release from custody.
6. The presentence report suggests that the offender had a conventional upbringing, although there were some alcohol abuse issues within the family home.
7. Education-wise, he completed the Higher School Certificate and, upon leaving school, completed his certificate in air conditioning and refrigeration as a tertiary course during a 4 year apprenticeship. He had started his own air conditioning business shortly before the offence and he said in evidence that he hopes to go back to that upon his release from custody.
8. The offender revealed in the presentence report, and his evidence was consistent with this, that on the evening of the offence he and the deceased had consumed alcohol and cocaine. He disclosed a history of having, in the past, abused alcohol and benzodiazepines. In essence, the account he gave as to his involvement in the offence in his evidence was consistent with the account he gave to the author of the presentence report. He acknowledged the impact of the offence on the owners of the hotel and their livelihood, and said that, "It was the worst thing he had ever done with the worst possible outcome, for no reason at all." The offender was assessed in the presentence report as having a medium risk of re-offending.
9. The presentence report discusses his physical health and other evidence before me addresses that issue. As a result of the offence, the offender suffered burns to 30% of his body, principally to his legs. He was admitted to Concord Hospital's Burns Anit on 10 June 2016 and discharged on 22 July 2016, so he spent initially over a month in that burns unit. The discharge summary indicates that when he was discharged his legs were not completely healed and he would be required to wear compression bandages. He had received skin grafts to both legs and was required to perform daily exercises. It was noted that he would need follow-up for at least 18 months to prevent scarring. At the time of discharge, the scarring process was active and he was at risk of further scar development.
10. Obviously he received very significant burns and the CCTV footage suggests that this primarily occurred when he went to the aid of the deceased. No doubt he suffered extreme pain as a result. It is clear both from documents placed before me, from the offender's Justice Health file and his own evidence that the management of his burns and his pain in the custodial environment has been difficult. He suffered a number of significant infections and there have been issues in relation to his appropriate pain medication. It also appears from the records that he was required to wear ankle cuffs when taken to Concord Burns Unit for outpatient care. It is difficult to understand why that was thought to be necessary in all the circumstances. Although the presentence report records that the offender says that he is now physically fit, he will upon his release still need to undergo further treatment at Concord hospital to ensure his complete physical rehabilitation.
11. In terms of his mental health, the presentence report records the offender advising that since 2007 he had begun to experience anxiety attacks and that after the commission of the current offence he sought out psychological intervention. In that regard, there is a report dated 24 January 2018 from Alison Cullen, a forensic psychologist. In terms of the offender's background, what is recorded in that report is consistent with the content of the presentence report. The report records the closeness of the relationship he had with a person called Mick who had been shot to death on 29 March 2016. The offender told the psychologist that after Mick's murder and in the time leading up to the current offence he had been depressed over Mick's killing and was drinking heavily.
12. In terms of his drug and alcohol use, he told the psychologist that he commenced using alcohol and cannabis at 13 but ceased cannabis use at 16. He also described the use of ecstasy pills on weekends and binge drinking. He told the psychologist that he had been abstinent from illicit substances since entering custody. I note in that regard he has no drug infringements on his custodial record. He says he has no intention of resuming the use of illicit substances. Perhaps only time will tell.
13. The psychologist records the offender's intention to look after the deceased's partner and child, and that he maintains contact with the late Mr McKenna's mother, who is supportive of him. The psychologist considered that he showed deep and genuine contrition.
14. The psychologist expressed the opinion that the offender was likely to suffer both physically and emotionally into the future as a consequence of the death of his long-term friend Mr McKenna. She considered that upon his return from a deployment with the Army Reserve some years prior to the commission of the current offence, he had experienced symptoms commensurate with post traumatic stress disorder and panic attacks. The psychologist also considered it likely that at the time of the commission of the offence the offender was suffering from severe alcohol use disorder and post traumatic stress disorder. She considered that those disorders were likely contributors to emotional disregulation and impaired decision-making, which contributed to his role in the subject offence. The psychologist considered that he is in sustained remission in relation to his substance and alcohol use disorders. Given his expressed attitude to committing to long-term counselling and his family support, the psychologist was of the opinion there is a reduced risk of recidivism.
15. There was also placed before me a document dated 19 March 2018 from the Reverend Steve House who is the chaplain at the MRRC. The reverend records that the offender is a regular at the chapel service and, having discussed his offence with him, formed the opinion that the offender is extremely remorseful. The document also records that the offender has completed The Salvation Army "Positive Lifestyle" programme and has employment in the gaol.
16. An affidavit from the offender's ex-partner, a Ms Clements, was also put before me. She and the offender were in a relationship in 2010 and have a son together. Although they separated some time ago, they have remained close. Ms Clements details the positive and supportive relationship the offender has with his son. Ms Clements also detailed her observations of the effect the fire has had on the offender. She notes that the hotel was a place the offender had, in the past, enjoyed attending. She also details the close nature of the relationship between the offender and the late Mr McKenna. In terms of the offender's contrition, Ms Clements states, "To say that Scott is sorry for what happened is an enormous understatement." Ms Clements also records that the offender has expressed a desire upon his release to do what he can for the deceased's young daughter.
17. There was also placed before me a document in support of the offender from the mother of the late Mr McKenna, Ms Valentine. She too details the closeness of the relationship the offender had with her son. Ms Valentine has observed the remorsefulness of the offender and believes that it is genuine and considers that contact from the offender has helped her deal with the grief concerning the loss of her son. In her letter, Ms Valentine quotes movingly from supportive letters she has received from the offender whilst he has been in custody.
18. There is also a document under the hand of Ms Teagan Kakos, the late Mr McKenna's partner. Her document echoes the content of Ms Valentine's letter.
19. I mentioned earlier that the offender gave evidence concerning the circumstances of the offence and his involvement in it. His evidence also touched on the physical and emotional pain he has endured, the difficult time he has had in custody managing the treatment of his burns, his relationship with the deceased and his remorse, and his hopes for the future. I found the offender overall to be an impressive witness, demonstrating real remorse and insight into his offending.
20. I consider his relatively limited record, his genuine remorse, his desire for psychological help and his strong family support, supports findings that he has good prospects of rehabilitation and consider he is unlikely to re-offend.
21. I mentioned earlier that he pleaded guilty in the Local Court, and I will allow him a 25% discount of his sentence for the utilitarian value of his plea. I have commented already upon the clear evidence of the genuine nature of his remorse, which is extensive. He has suffered both physically and emotionally as a consequence of his offence. Clearly he will carry the physical scars of his involvement in the offence for the rest of his life. I also have no doubt that he will carry the emotional scars for a very long time.
22. I was referred to a number of authorities in this State which make it clear that, in such circumstances, I can have regard to the injuries the offender has suffered during the commission of the offence as extra-curial punishment. The extra-curial punishment may be seen as deterring the offender from re-offending and can be seen as partially fulfilling those objects of sentencing concerned with deterrence and retribution (see Jehad Jodeh v R (2011) NSWCCA 194). The serious nature of his burns and the difficulty in obtaining proper treatment, including appropriate physiotherapy, has meant that his time in custody has been and is more arduous than it is for other inmates.
23. I discussed earlier the psychological report and the mental health of the offender. The psychologist expressed the opinion that the mental disorders that the offender was suffering at the time in some way contributed to the impaired decision-making that resulted in his involvement in the offence. The fact that the offence was committed while under the influence of alcohol and cocaine is not a mitigating factor as far as the law is concerned. The use of those substances at the time of the offence, in my view, makes it impossible to determine that his post traumatic stress disorder was in some way causally connected to the commission of the offence. His mental health at the time does not reduce the moral culpability he has for the offence in these circumstances.
24. His rehabilitation in terms of the offence has clearly commenced, so too has his rehabilitation in terms of recovering from his burns. His need for continuing rehabilitation in relation to his physical and mental health, in my view, supports a finding of special circumstances.
25. The offender's custody record and other evidence reveals that during the period of 26 September 2014 and 4 December 2015 he spent time in custody for an offence for which he was ultimately acquitted. It was submitted to me that I could in some way have regard to that period of custody in fixing sentence here. I do not consider that the authorities in this State collected in Hampton v R [2014] NSWCCA 13permit me to do so.

Imposition of Sentence

1. The offender has been in custody since 21 July 2016 but 5 months of that custody relates, as I say, to a sentence imposed for a common assault offence which occurred while in custody. In the circumstances, having regard to the principles of totality, I propose to commence the sentence for the subject offence from 21 September 2016.
2. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act and have determined that the only appropriate sentence is one of imprisonment. Offences of damage by fire in company, essentially arson, are always very serious because of the risk to property and human life inherent in them. Significant sentences need to be imposed on persons who commit such offences in order to deter the offender concerned and others from engaging in such conduct. Deterrence, both general and specific, are important objectives of sentencing. As I observed earlier, however, the extra-curial punishment the offender has suffered means that the objectives of sentencing in this case has already partially been achieved.
3. The maximum penalty has been taken into account as a legislative guidepost, as explained by the High Court in Muldrock v R (2011) 244 CLR 120.
4. I have considered the cases I was referred to by both the Crown and the offender's counsel but do not consider that they establish a range of sentence for this offence. I have also had regard to the statistics I was referred to, bearing in mind the limitation of those statistics. Sentencing remains individualistic and intuitive, bearing in mind the need for consistency.
5. Mr Keighran, you are convicted of the offence to which you have pleaded guilty. You are sentenced to a term of imprisonment consisting of a non-parole period of 1 year and 8 months and a balance of term of 11 months. That is a total sentence of 2 years and 7 months. The sentence dates from 21 September 2016. The sentence expires on 20 April 2019. You are to be released to parole pursuant to a statutory parole order on 20 May 2018.
6. So it's a total sentence of 2 years and 7 months. It's made up of a non-parole period of 1 year and 8 months, and a balance of term of 11 months. It's to date from 21 September 2016. As I see it, the sentence expires on 20 April 2019 and he's to be released to parole on 20 May this year, 2018. Would people just check the dates, please?
7. COSTANTINO: I agree with those dates, your Honour.
8. JAMISON: Yes, your Honour, I agree also.
9. HIS HONOUR: There's nothing left on a 166 certificate or anything like that, Mr Crown? I think the other matter had been formally withdrawn.
10. COSTANTINO: As I understand, yes, your Honour. Yes, your Honour, there is no other ancillary matters.

Amendments 30 July 2020 - Case name amended to only reflect offender's last name. 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: 30 July 2020