161 CLR 10
Dean v R [2015] NSWCCA 307
Muldrock v R [2011] HCA 39
244 CLR 120
R v Dean [2013] NSWSC 1027
R v Grant [2002] NSWCCA 243
Source
Original judgment source is linked above.
Catchwords
161 CLR 10
Dean v R [2015] NSWCCA 307
Muldrock v R [2011] HCA 39244 CLR 120
R v Dean [2013] NSWSC 1027
R v Grant [2002] NSWCCA 243
Judgment (17 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (Crown)
Bannisters Lawyers (Offender)
File Number(s): 2014/279068
[2]
REMARKS ON SENTENCE
HER HONOUR: At about 4.05am on 4 September 2014, police and emergency services were notified of a massive explosion in the vicinity of a convenience store in Darling Street, Rozelle.
The convenience store was operated from the ground floor of premises at 627-629 Darling Street, being one of a series of two-storey terraced shops with frontage onto Darling Street, each with a residence on the upper floor or floors. The premises at 627-629 Darling Street consisted of the retail store at street level with a storeroom and cool room at the rear of the store accessed via an internal hallway. The rear storeroom was also accessible via a concrete pathway from a driveway at the rear of the premises.
The retail business was operated by the offender under a five year lease, commencing in December 2013, at a monthly rental of $8,800. It was a term of the lease that in the event that the premises were destroyed by fire the lessee would be entitled to terminate the lease.
The offender acquired loan finance to purchase the business and to outfit it as a convenience store. The business was not profitable. As at 4 September 2014 an electricity bill in the amount of $3,435 was overdue, as was the current monthly payment of rent. The offender did not have access to sufficient funds to discharge those debts. He had tried unsuccessfully to sell the business (thereby relieving him of his obligations under the lease) in April 2014.
At the time of commencing to operate the business the offender was aware there was a three-bedroom apartment above the convenience store under a separate lease to three young men as joint tenants: Christopher Noble, Todd Fisher and Corey Cameron. The offender was aware the apartment had a separate entrance via an external staircase. The staircase was accessed from the rear driveway. It was the sole means of access. The window in the rear bedroom was barred.
The adjoining premises at 631 Darling Street operated as a phone shop. Through his management of the convenience store the offender became aware that John and Bianka O'Brien and their infant son Jude, aged 11 months, lived in the apartment above and behind the phone shop. Their apartment was accessed either via the phone shop or through a side door accessed from the rear driveway. The two upstairs bedrooms were accessed via an internal staircase. The window in the rear upstairs bedroom was barred.
The phone shop and the convenience store shared a common wall as did the bedrooms on the upper floors of both premises. A Colorbond fence divided the rear concrete pathway which provided access to the rooms at the rear of the premises at 631 Darling Street and to the rear storeroom of the premises at 627-629 Darling Street.
When Fire and Rescue officers arrived at the scene of the explosion at about 4.08am the convenience store and the three-bedroom residence above it were engulfed in flames, raging to an inferno. The phone shop at 631 Darling Street and the residence above it were also well alight. Two vehicles parked on Darling Street were also on fire.
Fire and Rescue officers endeavored to fight the fire from Darling Street. It was not brought under control for many hours, by which time it was clear that the extensive effects of blast damage and fire to the premises at both 627-629 and 631 Darling Street had effectively destroyed them. Debris projected under the force of the explosion was strewn on both sides of Darling Street. There was damage to a number of surrounding buildings.
Christopher Noble, Todd Fisher and Corey Cameron were asleep in their bedrooms in the apartment above the convenience store at the time of the explosion. Mr Fisher and Mr Cameron were injured as they made their escape by breaking through a glass door onto a rear balcony and jumping from the balcony with the apartment burning and collapsing around them. Despite confirming that Mr Noble was awake by banging on his closed bedroom door at the rear of the apartment as they made their way to the rear balcony, and hearing him call out that he was coming, it was not until they were at street level that they realised he was not with them.
Neither the best efforts of Fire and Rescue officers nor the attempts by Mr Cameron and Mr Fisher to clamber back onto the balcony to rescue Mr Noble before they were forced back by the intensity of the heat generated by the fire, were successful.
Mr Noble's body was located at 10.15pm on 4 September 2014 under a metal roof in the collapsed south-west corner of the apartment, consistent with him having been unable to open his bedroom door, either because of structural collapse or because he was overwhelmed by smoke and heat, or a combination of both. It was his bedroom that had metal bars across the only window. The direct cause of his death was notified to the coroner as smoke inhalation.
Bianka O'Brien and Jude O'Brien were also killed in the fire. Mr O'Brien had left for work at approximately 3.15am, leaving his wife and son either asleep, or settling back to sleep, in the upstairs bedrooms. Their bodies were recovered at 11.30am on 5 September 2014. Mrs O'Brien's body was found with her son's in the debris. The direct cause of their death was notified to the coroner as thermal effects.
At about 4.30am, the offender was found by Fire and Rescue officers buried in debris on the rear pathway close to the rear storeroom. The door to the storeroom was within the debris. The offender's car was parked in the driveway with the keys in the ignition. Ten litres of petrol were found in a plastic container in the car. Forensic testing of the offender's clothing indicated a strong presence of petrol. A protective face mask was found in his pocket and a piece of grey plastic in his clothing.
Whilst being removed from the debris the offender repeatedly said to the attending ambulance officers that he was "Sorry". He was also heard to say, "I didn't mean it".
The offender was formally interviewed by police at Royal Prince Alfred Hospital on 5 and 6 September 2014 where he was being treated for a fractured pelvis and lacerations to his forehead and face.
In the course of those interviews, the offender denied any responsibly for the explosion or the fire. He told police that the reason he apologised to the attending ambulance officers was because of the lengths to which they had gone to extricate him from the rubble, putting their safety at risk. He also told police that he had been detained against his will for five hours from about 11pm on the evening of 3 September 2014 by three armed robbers who entered the convenience store as he was closing for the night. He said the robbers spread petrol on the floor at his feet in the rear storeroom from containers he saw them carrying into the storeroom before they left through the rear door. He claimed that the explosion occurred within minutes of the robbers leaving, and within seconds of him also exiting through the rear storeroom door to make his way along the rear pathway to his car. He asserted a belief that the petrol must have ignited spontaneously.
At the time the offender was interviewed by police, they were unaware that 48 hours before the explosion, that is at close to midnight on 1-2 September 2014, a security camera at a service station in Croydon Park had recorded the offender purchasing 38.82 litres of petrol in four large plastic containers. Police were also unaware that on 2 September at 11.15am, a red plastic hand siphon was purchased for cash at a hardware outlet frequented by the offender, identical to a siphon that was located in the rear storeroom of the convenience store (the remnants of which were fused by heat to the remains of a plastic milk crate).
In the course of the investigation police became aware of the opinions of a range of specialist police and forensic experts who had interrogated the site of the fire and explosion as a crime scene over a two-week period after 4 September 2014. That material would later be served as part of the prosecution brief of evidence against the offender.
In summary, it was the considered opinion of a number of experts that the likely source of the explosion was in the rear storeroom of the convenience store when petrol vapours that had accumulated as a result of the dispersal throughout the premises of a minimum of 20-30 litres of petrol (probably close to 30 litres) ignited. It was also their evidence that within milliseconds of the explosion a fireball rocketed through the premises at temperatures exceeding 250-280 degrees.
While not made explicit in the expert evidence adduced at trial, it is a reasonable inference from the evidence of the principal fire investigation officer that the fire (initiated in the rear storeroom) spread to the front of the convenience store and from there to the neighbouring premises at 631 Darling Street, intensified by the fuel rich environment in the shop front. The degree to which the integrity of the premises at 631 Darling Street was implicated in the initial explosion was also not the subject of specific evidence.
Crime scene officers also located the melted remains of between 8 and 12 plastic 4-litre containers that had been placed at irregular intervals throughout the ground floor premises, including in the storeroom. These had been fashioned to serve as reservoirs for the dispersed petrol. Some containers were housed within milk crates that had been packed with paper or cardboard to add to the fuel load. The containers were loosely linked together by torn strips of fabric and doused in petrol as trailers or as makeshift wicks.
Given the complexity of the crime scene from a forensic perspective, the experts could not discount the possibility of accidental ignition of the accumulated petrol vapours from a random spark. However, the weight of evidence collected from the scene, and the expert analysis applied to it, pointed to either a trail of petrol or a piece of petrol-doused fabric laid underneath the closed rear door of the storeroom and extending onto the area of pathway immediately outside the door, having been deliberately lit which, in turn, ignited the highly volatile explosive mixture of air and petrol vapours inside the storeroom. A cigarette lighter found immediately outside the rear door, and proximate to where the offender was found buried beneath the debris, was thought to be the method of ignition. The rear door to the storeroom, blown free of the door jamb under the force of the explosion, was lying nearby.
Investigators also determined that at approximately 2.47am on 4 September 2014, the electricity supply to the convenience store had been switched off at the internal distribution board in the rear storeroom, leaving only a small amount of electricity in reserve. The small piece of grey plastic found by police among the offender's belongings was identified as a broken part of a junction box as a component of the electrical circuitry in the premises.
[3]
The trial
On 23 September 2014, the offender was charged with the murder of Christopher Noble, Bianka O'Brien and Jude O'Brien contrary to s 19A of the Crimes Act 1900 (NSW) (Counts 1, 2 and 3 on the indictment); recklessly causing injury to Todd Fisher and recklessly wounding Corey Cameron contrary to s 35 of the Crimes Act (Counts 4 and 5 on the indictment); and deliberately setting fire to the convenience store for financial gain contrary to s 197(1)(b) of the Crimes Act (Count 6 on the indictment).
He has been in custody since the date of charge.
On 9 May 2016 the offender entered pleas of not guilty to all six offences.
The primary issue of fact litigated at trial was whether it was the offender who set and lit the fire, proof of that fact, and to the criminal standard, being essential to proof of the offender's guilt on each of the six counts on the indictment. The only offence that alleged the offender acted with specific intent was the sixth count, which alleged that in setting fire to the premises he leased and operated as a convenience store, the offender intended to secure a financial gain. Each of the remaining five counts alleged that in causing the death of three people and injuring two people he acted recklessly.
In proof of each of the three counts of murder (being Counts 1, 2 and 3) the Crown alleged that the offender acted with reckless indifference to human life. This obligated the Crown to prove beyond reasonable doubt that, at the time of setting fire to the premises which caused the death of Mr Noble, Mrs O'Brien and Jude O'Brien, the offender actually appreciated or realised that their death was a probable consequence or likely result of his actions but, despite that realisation, he continued to act with the last causative act being the deliberate lighting of the trail of petrol or petrol-soaked fabric that extended into the rear storeroom.
In proof of each of the two counts in which Mr Fisher and Mr Cameron were injured (being Counts 4 and 5), the Crown was obliged to prove beyond reasonable doubt that the offender actually appreciated or realised that actual bodily harm may be suffered as result of his actions but, despite that realisation, he continued to act as he did.
[4]
The evidence adduced at the offender's trial
Although the offender made a large number of admissions pursuant to s 184 of the Evidence Act 1995 (NSW), there remained a substantial body of evidence adduced by the Crown in proof of the offender's guilt and a large number of witnesses the offender required for cross-examination. Five ambulance and emergency services personnel were called to attest to what they heard the offender say as he was being extricated from the debris as constituting implied admissions of responsibility for having set and lit the fire. Three expert witnesses were called in proof of the Crown case that the fire was deliberately set and lit by the offender for financial gain. A forensic accountant and a forensic chemist were also called in the Crown case.
Evidence was also adduced in proof of the various steps the offender took in carrying out his intention to destroy the premises by fire, in particular, steps taken by him over a concentrated period of hours before the explosion and the resulting fire as he installed the purpose-built network of interlinked reservoirs of petrol.
The offender gave evidence that what he told interviewing police whilst he was in hospital as to the implication of the three armed robbers in the explosion, and the resulting fire, was the truth. In his evidence he maintained the position that by saying "sorry" (and repeatedly) when he was being extricated from the debris he was merely apologising for the risk he understood those who were attending to him were exposing themselves to. He denied saying to the paramedic treating him at the scene (and repeatedly), "I didn't mean it".
The offender also sought to give an innocent explanation for the purchase of 38 litres of petrol within 48 hours of the explosion and subsequent fire. He said he purchased the petrol and took it to the convenience store with a view to performing an experiment on his car by mixing petrol, methylated spirits and water in the fuel tank to enhance its performance. He said this was something he had learnt from overhearing a conversation at a hardware store which he then researched on the internet. The Crown called evidence from a consulting automotive engineer. He gave evidence that he had not heard of an admixture of petrol, methylated spirits and water being introduced into the engine of an automotive vehicle and, further, that an admixture of that kind would actually diminish a vehicle's performance.
The offender denied purchasing the red plastic siphon on 2 September 2014 as part of his preparations for setting the fire. He claimed the red siphon had been used by him some months earlier in the convenience store to decant soft drink concentrate and that it was left in the storeroom. He said the protective mask found in his pocket was one he had used at his home in the week prior to the fire as protection from fumes emitted from a petrol-powered spray paint gun. He had no explanation for the piece of grey plastic found in his belongings.
He also gave evidence that although the convenience store did not appear to be generating a profit from his business records, he had withdrawn significant amounts of cash from the business over the nine months of its operation which, by 4 September 2014, he said totalled approximately $50,000, as monies to which he had access in meeting his current and future financial obligations as they fell due. He said he was confident the retail business would have been built into a profitable concern.
[5]
The verdicts of the jury
On 10 June 2016, the jury convicted the offender of Christopher Noble's murder. By its verdict, it follows that the jury was satisfied that the offender set the fire throughout the convenience store and beneath the apartment where he knew Mr Noble would be sleeping and, further, that in preparing to ignite the petrol, he appreciated that there was a substantial or real risk of Mr Noble's death but, despite that realisation, he deliberately lit a petrol trail or petrol-soaked piece of fabric intending that the fire would consume the leased premises. Murder carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years.
On 10 June 2016, the jury also convicted the offender of causing grievous bodily harm to Todd Fisher, being reckless as to causing actual bodily harm, an offence which carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years, and of wounding Corey Cameron, being reckless as to causing him actual bodily harm, an offence which carries a maximum penalty of 7 years imprisonment and a standard non-parole period of 3 years.
Mr Fisher sustained a "degloving" injury to his left little finger. The injury healed with residual scarring. He had limited movement in the finger for a period of at least nine months. He also suffered a full thickness laceration to the palm of his hand and an injury to his right shoulder which required surgery to repair his biceps tendon, a small tear to the tendon in his left shoulder and torn ligaments in his left ankle that healed after two or three months. His right shoulder injury has rendered him unable to undertake any tasks which involve repetitive lifting or carrying. He is unable to pursue his previous occupation as a landscape gardener. Mr Cameron sustained a full thickness laceration to his left foot.
By its verdicts on these two counts, the jury was satisfied that in setting and then lighting the fire, the offender caused the really serious injury suffered by Mr Fisher and the wounds suffered by Mr Cameron. They were also satisfied that, as joint tenants in the apartment above the convenience store where the fire was set and ignited, the offender appreciated or realised actual bodily harm would possibly be occasioned to them, but that he continued to act as he did notwithstanding.
By its verdict on Count 6, the jury was satisfied that in destroying the property at 627-629 Darling Street, Rozelle by setting and lighting the fire, the offender acted with intent to make a financial gain. The maximum penalty for that offence is imprisonment for 14 years.
On 14 June 2016, the jury acquitted the offender of the murder of Bianka O'Brien and Jude O'Brien but convicted him of their manslaughter. By its verdict, the jury must be taken to have been satisfied that the offender's conduct in setting and lighting the fire caused the deaths of Bianka O'Brien and Jude O'Brien, but not persuaded beyond reasonable doubt that in causing their death he acted with reckless indifference. The jury was directed that were they satisfied that the offender had appreciated nothing more than a remote risk or a mere possibility that Mrs O'Brien and her son would be killed as a consequence of the fire he set (even in circumstances where he deliberately ignited that fire on or near the pathway shared by those premises and separated only by a Colorbond fence) he must be acquitted of their murder.
In returning verdicts of guilty to the manslaughter of Mrs O'Brien and her son, the jury must be taken to have been satisfied that his actions in setting and lighting the fire in which they died were both unlawful (a conclusion which follows a finding that he set and lit the fire) and dangerous, in that a reasonable person in the offender's position would have appreciated that Mrs O'Brien and her son would be exposed to an appreciable risk of serious injury, being asleep in the premises adjacent to the convenience store where the fire was set and lit. Each of the offences of manslaughter carries a maximum penalty of imprisonment for 25 years.
[6]
Findings of fact for sentencing purposes and sentencing considerations
The maximum penalties provided for in the Crimes Act for all six offences, coupled with the standard non-parole periods attaching to three of them as provided for in s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW), mark the gravity with which these offences are regarded by the legislature. The range and scale of maximum penalties also reflects the legitimate community expectation that an appropriately harsh sentence will be imposed on this offender in recognition of the fact that three people have been killed, two others injured and property destroyed in a catastrophic fire he deliberately set and lit for personal financial motives.
The maximum penalties for all six offences and the applicable standard non-parole periods for three offences also operate to guide me in the exercise of the sentencing discretion that is fundamental to this sentencing exercise (see Muldrock v R [2011] HCA 39; 244 CLR 120). While the overall sentence to be imposed must reflect the criminality in the commission of all six offences, neither the maximum penalties nor the standard non-parole periods, alone or in combination, dictate the length of the ultimate sentence to be imposed. The objective of this, as with any sentencing exercise, is to impose a total effective sentence and non-parole period that is "just and appropriate" in all the circumstances, and in accordance with settled sentencing principles. In that regard, I acknowledge that the purposes of sentencing provided for in s 3A of the Crimes (Sentencing Procedure) Act include that the offender be adequately punished and made accountable for his actions and, in this case, by a sentence that reflects the total criminality for all of the offences for which he has been convicted. Section 3A also provides that the sentence should denounce the offender's criminal conduct and recognise the harm done to those who are the victims of the crimes committed and the community generally. In the sentence to be imposed in this case, the extent of harm is reflected in the loss of three lives in a major fire and the injury to two survivors of it.
[7]
Victim impact statements
The Court received a written statement from Mrs O'Brien's father and the grandfather of Jude O'Brien, William Keremelevski. Mr Keremelevski also read the statement in open court. I acknowledge the grief Mr Keremelevski has suffered and continues to suffer at the death of his daughter and treasured infant grandson.
Christopher Noble's parents, Ross and Elizabeth Noble, his sister, Kate Noble, and his grandmother, Norma Colclough, also read their statements. His brother, Michael Noble, submitted a written statement which I have read. Each member of Mr Noble's immediate and extended family expressed with insight and touching eloquence their personal grief at the loss of a loved son, brother and grandson and the impact of his death on each of them.
Each of Christopher Noble's family members and Mr Keremelevski also spoke of their torment in learning, through the course of the police investigation, of the particular circumstances in which Mr Noble died and in which Mrs O'Brien and Jude O'Brien died.
Mr Cameron, who survived the fire, also read his statement. His grief at the loss of his friend Mr Noble was palpable, intensified by his personal torment at being unable to save his friend from the fire which he managed, miraculously, to survive.
By receiving their statements and inviting them to be read, the Court recognises the far reaching and substantial impact of the deaths of the deceased on all their family members. Their understandable suffering cannot, however, influence the sentences to be indicated for the murder of Christopher Noble and the manslaughter of Bianka O'Brien and Jude O'Brien. The law does not differentiate between the value of life lost or permit a sentencing judge to factor into an otherwise appropriate sentence any additional penalty because a deceased person was loved and surrounded by family and friends who have suffered through their death. It is the criminal culpability in the taking of life itself that is the departure point for the appointment of criminal punishment.
[8]
Approach to sentence
In this case, although the six offences were committed as part of the one course of criminal conduct, it was productive of different results extending from property damage, the subject of Count 6, to the loss of life in Counts 1, 2 and 3.
I propose to utilise the provisions of s 53A of the Crimes (Sentencing Procedure) Act (noting, in particular, the application of ss 54B(4) and 54B(5) as concerns the three offences which attract standard non-parole periods) and to impose an aggregate sentence which is intended to reflect the overall or total criminality in the commission of all six offences. This procedure has the advantage in this sentencing exercise of meeting the need for some accumulation of the sentences in application of the principle of totality and of avoiding what would be an otherwise complex sentencing structure. I will, however, indicate (as I am required to do) the sentences that would have been imposed for each of the six offences were I to have imposed separate sentences with a series of staggered commencement dates.
Part of the task of indicating sentences is to make such findings of fact as are necessarily embedded in the verdicts of the jury. In addition, it will be necessary to make an assessment of the objective seriousness of the particular conduct, that is, the gravamen of each of the six offences. That assessment is also necessary in the appointment of the indicative sentences for Counts 1, 4 and 5, as each attracts a standard non-parole period which serves as a legislative guidepost where an offence is assessed to be in the mid range of objective seriousness.
Although there might be thought to be a degree of artificiality in assessing the objective gravity of the murder of Christopher Noble, the manslaughter of Bianka O'Brien and Jude O'Brien, and the causing of injury to Corey Cameron and Todd Fisher, given that it was the offender's conduct in planning for, setting and deliberately lighting the fire which was the causal feature in each offence, it is an exercise that will ensure against the risk of punishing the offender twice for the conduct common to the commission of all offences.
[9]
Primary findings of fact arising from the verdicts of guilty on all counts
Consistent with the jury's verdict on Count 6, where an intention to gain financially was an element of that offence, and consistent with the case the Crown advanced at trial that it was the offender who was responsible for the explosion and subsequent fire that killed Christopher Noble, Bianka and Jude O'Brien, and injured Corey Cameron and Todd Fisher, I am satisfied beyond reasonable doubt that the offender's motivation in planning for and deliberately setting and igniting the fire at his business premises was personal financial gain. This was constituted in the avoidance of a current and mounting business debt and the recovery of the capital costs of setting up the business and other business expenditure under an insurance policy in the amount of $225,000.
Consistent with the verdicts of the jury on all six counts, I am also satisfied that the offender's evidence (as with his account to police within two days of the incident) was a fabrication deliberately and carefully constructed by him to avoid criminal liability for the deaths, injuries and the destruction of property for which he knew he was solely responsible. That being the case, I am unable to give his evidence any weight on any disputed issues of fact which are to be resolved for sentencing purposes. In particular, I reject the offender's denials that he said to the ambulance officer that he "didn't mean it". I am satisfied that those words, and the accompanying and repeated words of apology, were a spontaneous utterance by him that can bear no meaning other than that he was, at least at that time, acknowledging sole responsibility for the explosion and the fire.
That the offender sought in his evidence to explain his words of apology, consistent with falsely attributing responsibility for the explosion and the fire to the non-existent robbers, and to deny outright saying the words "I didn't mean it" (well appreciating that those words were patently declaratory that he alone was responsible for the explosion and fire), deprives anything he said at the scene as an expression of remorse or contrition. Mr Brasch of counsel does not submit otherwise. Counsel also accepts that the offender is to be sentenced on the basis that there is no evidence of remorse or contrition that operates in mitigation of sentence.
Mr Brasch did invite me to find that the offender's spontaneous utterance that he was "sorry" (but) "didn't mean it" should be interpreted by me to mean that, despite the sheer scale of the petrol fire he intentionally set and ignited, the offender did not actually reflect upon, or make any assessment of the risk of a massive explosion.
Mr Brasch submitted that finding is consistent with the jury convicting the offender of Mr Noble's murder (which, given his proximity to the seat of the fire, the jury was satisfied the offender appreciated carried a probable or likely risk of Mr Noble's death) while acquitting him of the murders of Mrs O'Brien and her son in the neighbouring premises. He also submitted that I should take the fact that he did not intend the petrol to explode into account in the assessment of the objective seriousness of the offending of all six offences.
The Crown submitted I should not take that approach but that I would find that the piece of grey plastic forming part of a junction box found in the offender's belongings (together with his disconnection of the main supply of electricity at 2.47am) as evidencing his determination to avoid the risk of the accidental ignition of petrol vapours from an electrical spark (and the risk to his own safety that entailed) as he dispersed the decanted petrol throughout the store. The Crown relied upon Mrs O'Brien having reported to her husband that she believed she detected a strong odour of paint fumes when she went downstairs to the toilet at about 3.15am as evidence of what the offender must be taken to have known was the gathering accumulation of petrol vapours behind the closed rear storeroom door and throughout the ground floor premises. The Crown submitted that while the offender might not have appreciated the actual magnitude of the explosion or the resulting intensity of the fire, he should be taken to have appreciated the risk of an explosion of a lesser but still considerable magnitude and that this adds to the objective seriousness of the offending the subject of Counts 1, 2, 3, 4 and 5. Mr Brasch invited me to consider that an equally available explanation for the offender's interference with the mains supply of electricity and other electrical components was to reduce illumination from refrigeration units inside the store, enabling him to set the fire in the shop without risk of detection. It follows, of course, that the offender may have been seeking to achieve both objectives.
I am satisfied from the evidence adduced at the trial that upon the petrol being decanted and dispersed, it would have commenced to vapourise within a short time. I am also satisfied that the offender brought the face mask with him to protect himself from the effects of inhaling the fumes, anticipating that would likely occur. I am further satisfied that the offender's efforts to disengage the mains supply of electricity, including interfering with other electrical components was, in part, to avoid what he must have considered was the risk of accidental ignition as the petrol vapours continued to accumulate. I am not satisfied, however, that the steps the offender took to protect himself allow me to find, beyond reasonable doubt, that he envisaged the scale or the intensity of the catastrophic explosion and the fireball it generated, or even an explosion of some lesser magnitude. To attribute that state of mind to the offender would conflict with what I am satisfied is the basis upon which the jury returned manslaughter verdicts on Counts 2 and 3. It would also entail a finding that in igniting the petrol with the cigarette lighter, the offender deliberately placed himself at risk of being seriously injured in the resulting explosion, an attitude of mind positively contradicted by the offender having his car in the rear driveway (keys in the ignition) to facilitate his safe escape from what I have no doubt he intended would be a massive petrol-fuelled fire but within the leased premises.
That he did not anticipate or even consider the probability, if not the certainty, of an immediate explosion, or its force, from the quantity of petrol he dispersed simply beggars belief. I am unable to determine whether this conduct was borne of rank ignorance or arrogance or a blind determination to pursue his own selfish objectives at any cost, or a combination of all three. Even accepting, on the probabilities, that his spontaneous utterances at the scene carry the meaning Mr Brasch would have me attribute to them, that he did not intend to cause a massive explosion does nothing to diminish what I am satisfied is offending of the most serious kind in setting and lighting a petrol-fuelled fire, nor does it diminish the offender's high moral culpability for its consequences.
The sheer scale of the purpose-built network of interlinked reservoirs of a vast quantity of petrol (positioned with conscious deliberation throughout each of the three rooms comprising the ground floor of the leased premises and which I am also satisfied the offender must have intended would be progressively ignited as the fire took hold) is eloquent of the objective seriousness of the criminality inherent in each of the six offences for which the offender is to be sentenced. In addition, the planning involved in equipping himself to achieve his personal objectives over a number of days, and his determination over many hours on 4 September 2014 to carry his plans into effect, including taking steps to ensure that he would not be detected in the process, and to ensure his own safe retreat from the burning premises once the fire was ignited, constitutes a course of the gravest criminal conduct.
[10]
Objective seriousness of the murder offence
The Crown does not submit that the murder of Christopher Noble falls within the worst case category of murder, or a worst case of murder by reckless indifference. In the Crown's submission it lies above the mid range of objective seriousness, in large part because of the high degree of reckless indifference the offender displayed in setting and lighting a fire utilising a huge quantity of accelerant beneath where he knew Mr Noble would be sleeping, knowing he had limited means of escape. I have already observed that the offender's actions in setting and lighting the fire were motivated solely by personal gain. This is also a factor that bears upon the objective seriousness of the murder of Mr Noble in Count 1 and in the objective seriousness of each of Counts 2, 3, 4 and 5.
The Crown submitted that the circumstances in which Mr Noble died were particularly traumatic as evidenced by his terrified shouts of sheer panic from inside the burning building before he must have succumbed to the inhalation of smoke. In the Crown's submission, in those last minutes Mr Noble must have known that he was going to die. That is also a factor I take into account in the appointment of the objective seriousness of the murder as above the mid range.
The Crown invited comparison between the circumstances in which Mr Noble died and the circumstances in the case of R v Dean [2013] NSWSC 1027, where eleven people of advanced years in a high dependency wing of a nursing home were murdered by an offender who was responsible for their care. I do not consider a comparison with that case helpful. In that case, the sentencing judge found the offending in the worst case category and a life sentence was imposed. The Crown does not submit that a sentence of that order is warranted in this case.
Mr Brasch invited me to find that the murder of Mr Noble was below the mid range of seriousness based on three interrelated factors. First, murder by reckless indifference should be regarded as less serious offending than where an offender intends that the deceased be killed or suffer grievous bodily harm. I reject that submission. Dean v R [2015] NSWCCA 307 is authority for the proposition that a finding of murder by reckless indifference does not, by that fact alone, place the offence into a less serious category of murder than where the Crown establishes an intent to kill or cause grievous bodily harm. Each case of murder must be considered on its own facts.
Mr Brasch further submitted that I would be satisfied that there is a continuum of recklessness, from an appreciation that death is a "probable consequence or likely result" at one end of the continuum to an appreciation of a substantial or real risk or chance of death occurring at the other, and that the latter reflects a lower level of objective seriousness. I am not persuaded there is a continuum or gradation of degrees of reckless indifference of the kind Mr Brasch describes (see Boughey v R [1986] HCA 29; 161 CLR 10 at [18] and R v Grant [2002] NSWCCA 243; 131 A Crim R 510 at [33], referred to by Latham J in Dean). In any event, given the verdict of the jury and the directions the jury was given in advance of their deliberations to verdict, I am well satisfied that the offender actually averted to Mr Noble's death as a probable consequence of his setting the fire on the ground floor beneath the apartment where he was sleeping or, to put it another way, that he realised Mr Noble's death would be a likely result of the fire that he set and in the manner in which the fire was lit.
Finally, Mr Brasch urged me to find that because the offender was motivated by personal gain and not any ill feeling or ill will toward Mr Noble, and that his conduct was directed solely to the destruction of property, that the objective seriousness of Mr Noble's murder is reduced. I am not persuaded by that submission. It is simply another way of advancing the submission that the offender is less culpable because he did not form an intention to kill Mr Noble or inflict really serious injury on him. The submission, in any event, also fails to address the significance of the fact that the offender's motives in setting the fire were for personal financial gain.
In my view, the objective seriousness of the offence of murder, as revealed by all the circumstances in this case relevant to that assessment, places the offending above the mid range.
[11]
The objective seriousness of the manslaughter offences
The Crown submitted that the offending constituted by the manslaughter verdicts is in the worst case category of manslaughter by an unlawful and dangerous act.
Offending within this category of manslaughter encompasses a wide range of conduct: from the delivery of a single punch to the head of a deceased to the use of a firearm or other weapon, in circumstances where the evidence in neither example would support a finding that any of the mental elements necessary for murder are made out.
As I have already made mention, by its verdicts the jury has drawn a distinction between the offender's state of mind in regards to the young men living in the apartment above the convenience store when he set and lit the fire, and his mental state regarding the risk to the family living next door. In assessing the objective seriousness of the manslaughter offences I am mindful not to attribute to the offender any mental element accompanying the acts which were causative of the death of the deceased. I do, however, take into account that he intentionally lit a substantial fire at 4.00am fuelled by a very large quantity of petrol in a shop that shared a common wall with the premises where he knew a couple with an infant lived. It is this which elevates the objective seriousness of the manslaughter of Mrs O'Brien and her son by the offender's unlawful and dangerous acts. That a reasonable person in the offender's position would appreciate the risk of really serious injury to a dependent and vulnerable child in those circumstances is blindingly obvious. An appreciation of the risk of serious injury to the parent of that child is of no different magnitude. In addition, I am satisfied that the offender was also aware of that same measure of risk (that is, an appreciation of really serious injury to them).
The Crown emphasises the particular vulnerability of the infant, Jude O'Brien, and what I would infer must have been the unimaginable anguish and terror with which Mrs O'Brien was confronted upon the realisation that she and her son were destined to die in a fire from which they had no means of escape. I take that into account in the assessment of objective seriousness in the manslaughter offences.
Mr Brasch offered a number of comparative cases, only one of which concerns a verdict of manslaughter after trial as an alternate verdict to murder in what might be assessed as comparable circumstances. In R v Olig [2002] NSWCCA 249, the trial judge imposed a sentence of 12 years with a non-parole period of 8 years on an offender who went to the deceased's house (his former domestic partner) with petrol intending to set fire to a pergola, but in a heated exchange with the deceased and, it would seem, in the moment, he ignited the petrol inside the house. The offender in that case was found by the sentencing judge to have "personal limitations", intellectual and emotional, which, although not significantly mitigating his culpability, added to the turmoil of a breakdown of a domestic relationship and what his Honour described as "the folly of his actions". The sentencing judge also found that the offender was genuinely surprised at the speed at which the fire took hold and that he made genuine efforts to rescue the deceased.
There are no features of this offender's conduct, or his subjective circumstances, which attract any similar measure of leniency in the sentences to be indicated for the manslaughter of Mrs O'Brien and her son.
[12]
Objective seriousness of the grievous bodily harm and wounding offences
It was common ground that the injuries sustained by Todd Fisher and Corey Cameron are at the lower end of the range of seriousness for offending against ss 35(2) and (4) of the Crimes Act. That does not, however, necessarily translate into a finding that the offending in this case is below the mid range.
The traumatic circumstances in which the injuries to both young men were sustained elevates the objective seriousness of both offences, as does the fact that, by their verdicts, the jury was satisfied that the offender averted to the real risk that actual bodily harm would possibly be occasioned to both young men (either in the fire itself or in making their escape from it) but that he continued to set and light a massive fire knowing they were asleep above the seat of it.
I do not accept the Crown's submission that this conduct or its consequences constitutes offending in the worst case of offending in breach of either s 35(2) or s 35(4) of the Crimes Act. I am satisfied, however, that despite the wound to Mr Cameron's foot and the injury to Mr Fisher's hand and shoulder being, fortuitously, of moderate seriousness in nature and duration, the circumstances in which the offences the subject of Counts 4 and 5 were committed places the offending in the mid range of objective seriousness.
[13]
Objective seriousness of the property destruction offence
The property damage at 627-629 Darling Street (the only property the subject of Count 6) involved the complete destruction of a two-storey building, only the ground floor of which was under lease to the offender. As I have noted, it is this offence that required proof of specific intent as an essential element.
Mr Brasch submitted that the modesty of the financial gain the offender intended to garner to himself by destroying the property reduces the objective seriousness of his offending. He also invited me to find, on the probabilities, that the offender, as the financial provider for his wife and three children, and in deference to his need to provide for his family, was driven by a feeling of financial desperation to do what he did. That submission carries little weight.
Such evidence as there is as to the offender's material circumstances and that of his family does not reveal any of the indicia of poverty or privation that may move a person to take desperate measures on their own behalf, or on behalf of their dependents, to improve their financial situation. The offender housed his family and provided well for them. It would appear from the evidence he adduced at his trial that his household income was also supplemented with significant amounts of money at regular intervals from his family overseas. His family debt position was, in relative terms, unremarkable.
The extent of the damage to the subject property is the primary factor which signifies the objective seriousness of this offence. For sentencing purposes, I am obliged to ignore the fact that other property was also damaged or destroyed in the fire, including, of course, the adjoining property at 631 Darling Street. I am satisfied, however, that an aggravating feature of this offending is the risk to public safety constituted by the offender's deliberate destruction of property by a massive fire (s 21A(2)(i) of the Crimes (Sentencing Procedure) Act). Darling Street Rozelle is not only a major public thoroughfare, with shopfronts and residences along its length, it is also in an established residential suburb. The risk of injury, or worse, to those using the road or asleep in their beds in neighbouring residences is obvious.
[14]
The offender's subjective circumstances
The offender is currently 46 years old. He was born in Pakistan and emigrated to Australia in 1996, later becoming an Australian citizen. He has been married for 22 years. He has three children aged 15, 17 and 20 years old. His wife provided an affidavit for sentencing purposes in which she says the offender remains committed to her and their children. The impact of the offender's incarceration on his wife and children is not relied upon as an ameliorating sentencing factor.
The offender undertook tertiary studies in Pakistan and further studies in Australia. He completed a Masters degree in mathematics in Pakistan, teaching qualifications from the University of New South Wales and a second Masters degree in information technology from the University of Technology Sydney.
In 2009, he moved to the United States with his family where he lived for two years, working as a consultant in information technology and in his family's retail business. His parents and extended family live in the United States. The offender returned to Australia with his family in 2012. On his return, he registered a company with the intention of developing software modules for small businesses and other industries. There is no evidence as to the success or otherwise of that business.
The offender has no criminal history.
A report from Ms Ann-Marie De Santa Brigida, counselling psychologist, was tendered on sentence. In undertaking an assessment of the offender's psychological profile, she noted no indication of any behavioural disorder, and no history of any diagnosis or intervention for issues either psychiatric or psychological in nature. The administration of the Beck Depression Inventory generated a finding which she considered was best encapsulated within the context of an Adjustment Disorder which, given the offender's current custodial circumstances and, it might be safely inferred, the realisation that he will be serving a very lengthy period of imprisonment, is unremarkable.
With no obvious criminogenic factors identified in the offender's history, and nothing in his early development or his social or family life that might offer any insight into his offending, Ms De Santa Brigida's report is of little weight for sentencing purposes. I do note, however, and accept her observation that the offender has a number of factors in place which will act to protect against recidivism. These include his relationship with his family, his wife and their children. She also refers to his strong community ties as a protective factor. She did not further detail the nature of those community ties or their extent save for his family who continues to support him.
I was invited by Mr Brasch to find that the standardised personality assessment questionnaire administered by the psychologist also indicates the offender is statistically within a low range of risk for recidivism. As Ms De Santa Brigida acknowledges in her report, this, as with other tests that examine recidivism within correctional and forensic populations of violent and non-violent offenders, is a relatively blunt tool with obvious limitations in accurately predicting future behaviour. What I am able to conclude, with reasonable confidence, is that the offender is unlikely to offend in this way again with the various situational factors, such as I am able to discern them, unlikely to align in a way which would motivate him to repeat his offending conduct.
I have already referred to Mr Brasch's acceptance of the fact that there is no evidence of remorse such as might operate in mitigation of sentence as provided for in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act or which might provide a basis for the assessment of his prospects of rehabilitation. I accept that in some cases a sentencing court can assess prospects of rehabilitation without genuine remorse. Mr Brasch advanced no submission that I should make that finding in this case. I am unable on the material available to me to make a positive finding that the offender's prospects of rehabilitation are good as a factor in mitigation of sentence in s 21A(3)(h).
I accept he has no criminal record, as I do that there is nothing in his antecedents to deprive him of a finding of good character prior to the offending for which he is to be sentenced. I also accept that the conduct of the trial by his legal representatives, on his instructions, has facilitated the course of justice to some degree. However, given the matters that were litigated and the extent of the evidence which was adduced in proof of the offender's guilt, this factor, as with his age, his prior good character and lack of criminal antecedents, does not carry any significant weight in mitigation of sentence. That said, these factors remain part of the material to be synthesised in the appointment of indicative sentences and ultimately in the imposition of an aggregate sentence.
In Ms De Santa Brigida's report, reference is also made to the offender having been physically assaulted on three occasions as a remand prisoner, apparently in retribution for the death of the child Jude O'Brien. On 12 November 2014, the offender was assaulted and referred to as a "baby killer". A Corrective Services report from that day indicated that the offender did not wish to take any action. On 26 September 2015 the offender was assaulted and was observed bleeding from his mouth. A Corrective Services report indicates earlier that week the offender had been the subject of media coverage. The assault was investigated by Corrective Services and police and the offender was placed under observation. In his account to Ms De Santa Brigida, the offender stated an MRI scan had identified a blood clot in his brain. This is not indicated in the Corrective Services material or supported by any medical reports. His account to the psychologist also referred to a third attack which is not recorded in his Corrective Services record.
On 2 June 2016, the offender was transferred to protective custody at his election. That arrangement is to be reviewed on 1 September 2016. There is no evidence as to whether these arrangements will continue once he is a sentenced prisoner. I do not consider his future custodial arrangements to have any bearing on the sentence to be imposed.
I am obliged only to indicate non-parole periods for those offences which attract standard non-parole periods under the Crimes (Sentencing Procedure) Act being Counts 1, 4 and 5. However, to achieve transparency in the sentencing exercise, I will indicate a non-parole period for each of the two manslaughter offences, being Counts 2 and 3. In respect of Count 6, the indicated sentence, which may appear lenient against a maximum penalty of 14 years, reflects the need to avoid double-counting the offender's conduct in deliberately destroying the leased premises and for personal gain, that conduct will be accounted for in the sentences indicated for each of Counts 1, 2, 3, 4 and 5.
The aggregate sentence, as the sentence to be imposed in this case, reflects both a marked degree of notional accumulation of the individual sentences and a degree of notional concurrency. I am satisfied that the aggregate head sentence and non-parole period reflects the overall gravity of the offending.
[15]
Sentence
The sentences to be indicated are assembled in the following table.
Standard Indicative
Offence Maximum Penalty Non-Parole Sentence
Period
Head sentence:
1 Murder of Christopher Noble Life imprisonment 20 years imprisonment 30 years
s 18 (s 19A) Crimes Act NPP:
22 years
Head sentence:
2 Manslaughter of Bianka O'Brien 25 years imprisonment - 20 years
s 18 (s 24) Crimes Act NPP:
15 years
Head sentence:
3 Manslaughter of Jude O'Brien 25 years imprisonment - 20 years
s 18 (s 24) Crimes Act NPP:
15 years
Head sentence:
4 Recklessly causing grievous bodily harm to Todd Fisher 10 years imprisonment 4 years 5 years
s 35(2) Crimes Act imprisonment NPP:
3 years, 9 months
Head sentence:
5 Recklessly wounding Corey Cameron 7 years imprisonment 3 years 3 years, 6 months
s 35(4) Crimes Act imprisonment NPP:
2 years, 8 months
6 Dishonestly destroying property by fire 14 years imprisonment - Head sentence:
s 197(1)(b) Crimes Act 4 years
Aggregate 40 years
sentence: (NPP: 30 years)
[16]
Adeel Ahmad Khan, I sentence you to an aggregate term of imprisonment of 40 years, comprised of a non-parole period of 30 years commencing on 23 September 2014 and expiring on 22 September 2044, with a balance of term of 10 years expiring on 22 September 2054. You will be first eligible for release to parole on 22 September 2044.
[17]
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Decision last updated: 05 August 2016