R v Masters

The events of 29 and 30 October 2018

1. At about 5 pm on Monday, 29 October 2018, Ms Weatherly was visiting a friend at Unit 4, which is located on the ground floor of the unit complex. Ms Weatherly ended up staying at this unit for the night. She had been arguing with the offender earlier.
2. At approximately 7 am on 30 October 2018, Ms Weatherly returned to the offender's unit with the intention of having a shower. During the course of the morning, the offender and Ms Weatherly continued to argue.

The starting of the fire

1. At approximately 11 am, the offender deliberately lit a fire in the main bedroom of his unit. The origin of the fire was on the mattress in the main bedroom. I am satisfied beyond reasonable doubt that the offender applied an ignition source to the mattress in the main bedroom. Whilst the offender gave evidence during the disputed facts hearing that he "vaguely remembered" lighting baby clothes and throwing them onto the bed, in circumstances where I rejected the evidence of the offender during the disputed facts hearing, I am unable to determine precisely how it was that the offender ignited the mattress in the main bedroom. The fire then spread to the second bedroom and the offender's unit.
2. After the fire commenced, Ms Weatherly left the unit and knocked on the door of a neighbour, Ms Cathy Ward. Ms Weatherly told Ms Ward that the offender had set fire to the unit. Ms Ward gave evidence during the disputed facts hearing that she heard the offender say, "I'm just throwing a mattress on top so it will take us all up". She had seen the offender standing in the doorway of his unit. In her police statement made on 1 November 2018, she had recorded that the offender had said, "I've just put a mattress on it. That will take it right up."
3. The offender gave evidence during the disputed facts hearing that he said, "Look out. I've just put a mattress on it and it's gone right up," being a reference to trying to smother the fire, not to make it worse. In circumstances where I was unable to be satisfied to the requisite standard what the offender had said to Ms Ward, I was not satisfied that it had been established that the offender used a mattress to increase the intensity of the fire.
4. Ms Ward had described the demeanour of the offender at the time she spoke to him when he was standing in the doorway of his unit as calm, smug, nonchalant, and standing with one leg crossed over the other. The offender gave evidence during the disputed facts hearing that when he left the unit, he ran for a fire hose, turned the nozzle on, and there was no water. He had also provided this account during his record of interview with police. Having regard to the evidence of Ms Ward in relation to the demeanour of the accused when he came out of his unit, I was not satisfied on the balance of probabilities that the offender took any steps to extinguish the fire.
5. About 11.32 am on 30 October 2018, New South Wales Fire requested police to urgently attend the address in relation to the fire, which was well alight. First responding police attended and saw Unit 30 at the top of the apartment complex well alight. Smoke and flames were burning around the building. Residents of the apartment complex commenced to evacuate from the block. Smoke engulfed the complex. Several elderly residents frantically exited the complex, leaving personal items behind. Several animals who were also left inside the complex died. The fire was later extinguished with the assistance of New South Wales Fire aerial appliance.
6. The offender and Ms Weatherly were spoken to by first‑responding police when they were standing outside the apartment complex. This conversation was recorded by police on a body‑worn camera. The accused provided the following account. He said he and Debbie Weatherly were fighting, she left the unit, and he followed her. They returned about ten minutes later and he could immediately smell smoke. He looked into the spare room and saw fire and smoke. In the afternoon of 30 October 2018, a fire investigator from New South Wales Fire Investigation and Research Unit of Fire and Rescue attended the scene. A crime scene officer from New South Wales Police also attended.

The damage caused

1. Exhibit A includes a number of photos taken by the crime scene officer showing the very extensive damage to the unit complex. The entire building was rendered unsafe for occupation due to the damage caused by the fire, smoke, and necessary fire suppression measures. All residents of the building were temporarily displaced as a result of the fire, with some residents still residing in temporary accommodation due to the extensive nature of the rectification works. To date, the estimated loss suffered by Compass Housing is approximately $2.1 million.
2. On 20 December 2018, the offender was arrested in South Australia. He was extradited to New South Wales. On 22 December 2018, he participated in a record of interview with police. He told police, inter alia, that at the time of the fire he was asleep on the lounge in the unit and was woken by the fire alarm. He went into panic mode. The fire was in the main bedroom and the bed itself was alight. He described that the floor was alight and a doona was alight.
3. He denied that he had taken any drugs at the time. He told police he unsuccessfully attempted to extinguish the fire by throwing a jug of water on the mattress in the main bedroom. He then left the unit and took hold of a fire hose on the landing, but upon return to the unit, was overcome by smoke and flames before he was able to deploy the fire hose. A compensation order is sought in favour of Compass Housing Services in the sum of $750,000.
4. Those facts clearly disclose very serious objective criminality. The offender's conduct in lighting the fire in his unit created a significant risk of injury to the tenants of the entire apartment complex, and resulted in very significant damage to a public housing resource. Both general and specific deterrence are important considerations on sentence (see generally R v Pitt [2001] NSWCCA 156 per Wood CJ at CL at [27]).
5. In Porter v R [2008] NSWCCA 145 at [81], the Court observed as follows: "The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 at [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases."

Assessment of objective seriousness

1. In assessing the objective seriousness of the offence, I have taken into account the following factors: 1. The offender deliberately lit the fire in the main bedroom of the unit and was reckless as to the fire destroying the entire apartment complex. I regard the recklessness as being of a very high order, in circumstances where the offender must have known of the risk of significant property damage and significant threat to persons in the apartment complex. 2. I am not satisfied that the offender took any steps to extinguish the fire. 3. The fire caused the immediate displacement of all residents living in the apartment complex. 4. The complex was providing public housing for 29 tenants, and I will outline in greater detail the impact upon those tenants later in my remarks. 5. The conduct of the offender created a very significant risk of injury or death to other residents of the apartment complex. 6. The damage to the building was very extensive. The total loss as at 12 May 2020 was estimated to be $2,198,654.32. This was anticipated to increase by a further $800,000 because of variations in the scope of building rectification works.
2. The Crown submitted that the objective seriousness was above the mid-range. Mr Stitz on behalf of the offender submitted that it falls at or just above the mid-range. I am satisfied that the offending is above the mid-range. Of importance in that assessment is the very significant monetary value of the damage caused.

Aggravating factors

1. The Crown relied upon two aggravating factors. Firstly, that there had been substantial loss or damage to the building pursuant to s 21A(2)(g), Crimes (Sentencing Procedure) Act 1999 (NSW), and that the offence was committed without regard to public safety, pursuant to s 21A(2)(i), Crimes (Sentencing Procedure) Act. In circumstances where I have taken each of those matters into account in assessing the objective seriousness of the offending, I do not propose to rely on those factors as aggravating the offending.

Victim impact statements

1. A letter was tendered in the sentence proceedings prepared by Daniel Davis, the company secretary of Compass Housing Services Ltd, outlining the impact of the fire on both Compass Housing (the owner of the complex) and the tenants. It states as follows: "Impact on Compass tenants The Gertrude Street fire has had a significant impact on the lives of the Compass tenants. The impact has included the following: The fire has had a detrimental impact on Compass' tenants at the complex due to emotional distress. All the tenants in the Gertrude Street premises underwent an emergency evacuation at the time of the fire and one visitor required hospitalisation due to smoke inhalation. Tenants lost pets, as two cats died in the fire. Tenants lost most of their personal items. 30 tenants were evacuated immediately with only the clothes on their backs. The tenants were only permitted to return later to retrieve essential medications, clothing, food and pets, under supervision. All tenants bar one did not have contents insurance and therefore lost most of their furniture and belongings due to smoke or water damage. The tenants' lives have been heavily disrupted and impacted. All 30 tenants have been unable to return to the property since the fire. Half of the tenants were placed in motel accommodation by Compass. The remainder moved in with family or friends while more permanent accommodation solutions were found. The complexity of some tenants' needs has meant that Compass has had to relocate some tenants multiple times until the rebuild of the units is complete. Four tenants are still residing at the Ibis Motel 556 days after the fire, having no alternative suitable housing options, and are waiting to return to their unit. Some tenants have experienced post‑traumatic stress disorder from the fire, as well as others suffering high anxiety due to having to live in motel accommodation for an extended period of time. Impact on Compass The fire has had a significant impact on Compass and Compass' ability to provide additional secure and affordable housing to disadvantaged people who have difficulty sourcing adequate housing. The fire's impact on Compass has included the following: Damage to property - One unit was completely destroyed by the fire. A further two units were fire damaged, and the remaining 27 units were uninhabitable due to smoke and water damage. There was severe damage to the roof rendering the whole complex unsafe from the date of the fire on 30 October 2018. Compass has had to completely rebuild the entire unit complex which will have a negative financial impact on Compass. The fire has had an impact on Compass staff and resourcing. Compass staff were required to immediately manage 29 tenants in distress. Compass has incurred additional costs of nightly accommodation for half of the tenants at the Ibis Hotel until a permanent property for each tenant or until the unit complex can be rebuilt. Additionally, Compass has had to provide food and laundry vouchers to displaced tenants, as there were no cooking or laundry facilities in the motel accommodation. Compass was required to hire contractors, including temporary fencing, to secure the building and each unit. Compass was required to clear and clean each unit and transport any tenants' goods that were salvageable into storage. The fire has had a significant financial impact on Compass. Although a significant amount of the costs incurred by Compass have been recoverable through Compass' insurance policy, given the quantum of the costs resulting from the fire, Compass' insurance premium has approximately doubled to $2 million per year, and Compass insurance excess has increased from $50,000 per incident to Compass being liable to pay the first $2 million of aggregate claims each financial year. The Gertrude Street fire has had a very significant impact on Compass and Compass' tenants at the complex. Additionally, the financial impact on Compass has meant that funds that would have been utilised by Compass to provide additional secure and affordable housing to disadvantaged people, has instead been incurred on the Gertrude Street fire."
2. Three victim impact statements were also prepared by tenants of the apartment complex. Carrie Jubelin provided a victim impact statement (Exhibit T). She described that since the fire, for a period of two and a half years, she has lived at the Ibis Hotel. She lives in a small room where she is unable to "carry out even the most basic living activities". There are no cooking facilities, no wardrobe, and at times it is very noisy. She described the impact on her mental health in the following way, "Each and every day for the past two and a half years I have felt extremely nervous, anxious and depressed knowing I have to go back to the Ibis."
3. She described the accommodation at the Ibis as not conducive to living a "healthy, fulfilling life". She described the emotional impact as including negative effects on her self-esteem and self-worth, that she is experiencing anxiety and depression for which she has sought medical advice. She also described a financial cost, in circumstances where she is required to buy food because of the absence of any food storage facilities in her room.
4. Cathy Ward also provided a victim impact statement. She was an occupier at Unit 27 (Exhibit U). She described the impact upon her as follows: "I have no insurance and lost nearly all of my belongings. I stayed in a motel for three months and I had to live off takeaway, an expense I wouldn't usually have to pay. I was relocated out of my hometown into a unit and an area that was new and unknown to me. Amongst the items I lost were some commemorative items belonging to my deceased grandson that I will never get back, and this has caused me the most distress by reaggravating my grief for his loss. I was forced to lean on family and friends for money and support to move and rebuild my life, which made me feel like a burden to them."
5. She continued: "The traumatic events of this fire have exacerbated my mental illness and caused me to live in a constant anxious state of worrying about the smell of smoke, sleeping with my bedroom door open, and having a packed bag to be ready to go in the event of a fire. My daily activities have been irreversibly affected and I have had to lean on my GP and other professionals for support to cope day‑to‑day."
6. She concluded, "Nobody should have to struggle to live with chronic fear in their life."
7. Janet Falk also provided a victim impact statement (Exhibit V). She described the impact upon her in the following way: "I lost nearly everything, most residents lost nearly everything. I was homeless for almost 18 months, and some still are. My health, mental and physical, was deeply affected by your actions. Because of YOUR selfish act… I struggled to care for my dying mother due to the extreme trauma I experienced. I lost weight to dangerous levels, affecting my health and my immediate family. I am still receiving counselling through a free service, and cannot afford to pay for more. Due to the trauma I experienced, I was not able to lodge a claim for support from Victims Services, so I lost the chance of recompense for the loss of my possessions."
8. She described the loss of many sentimental items and important financial and identification records. She continued: "After leaving a long‑term domestic violence relationship and making a life for myself, I was left with nothing and used time payment to purchase items such as a fridge and TV. My family and children purchased items for me, which are all gone. Now I have to start over again at 60 years of age. With my then eight‑year‑old son, I watched my beloved cats Yin and Yang be born. To lose them to your selfish act makes me miss them even more. They never did you any harm. They were my beloved pets, and you took the last few years of their gentle lives from them. I will never get back the time with my beloved cats, as it was stolen by you."
9. She also described the impact upon her relationship with her son: "My relationship with my son has suffered due to the trauma we both experienced, as we have both struggled to get over the events of that day. This adds to my feelings of grief and loss."
10. She concludes as follows: "I will never get back the sense of security I felt in my home before you moved in, and before your selfish criminal act left me homeless and needy."
11. In Porter v R, Johnson J observed as follows at [55]: "The purposes of sentencing include recognition of the harm done to the victims of crime and the community: s 3A(g), Crimes (Sentencing Procedure) Act 1999. It has been said that the crime of arson may have profound consequences for innocent victims: Director of Public Prosecutions (Vic) v Bright (2006) 163 A Crim R 538 at 540 [2] and 545 [22]. The monetary value of damage, and the loss of personal records bear upon the objective seriousness of the crime: R v Davies (2006) 164 A Crim R 353 at 370 [97]."
12. I am satisfied that the fire has had a devastating effect on the tenants, both financially and emotionally.

Subjective circumstances

1. The offender is now 56 years of age. He has a New South Wales criminal history, commencing in 1987 when he was 22 years old. In that year he was dealt with for the following offences: two counts of goods in custody, and possess prohibited article, he received a term of 3 months imprisonment in respect of each offence; break, enter and steal, he received a sentence of 12 months with a non‑parole period of 6 months; and for offences of possess shortened firearm and possess prohibited article, he received fixed terms of 6 months.
2. In 1989, he was dealt with for three offences of break, enter and steal, and a further offence of attempted break, enter and steal. He received a total term of imprisonment of 18 months, with a non‑parole period of 6 months. He was also dealt with for an offence of possess prohibited drug and fined.
3. In 1992, he was dealt with for an offence of possess implements to enter a conveyance, and placed on a 2 year recognizance.
4. In 1994, for the offences of take and use conveyance and two counts of stealing, he was sentenced to fixed terms of 3 months on appeal. In lieu of that sentence, a 2 year recognisance was imposed.
5. In 1997, he was dealt with for the offences of cultivate prohibited drug. He received a recognizance of 3 years. On appeal, that was reduced to 12 months. In that same year, he was dealt with for offences of contravening an apprehended violence order. He received a community service order for 200 hours. That was called up and he received a 12‑month bond. He was also dealt with for an offence of common assault, he received a 2 year recognizance.
6. In 1998, he was dealt with for two offences of contravening an apprehended violence order. For the first offence, he received a recognizance. For the second offence, a fixed term of imprisonment of 1 month.
7. In 2004, he was dealt with for six offences of pass valueless cheque. He was sentenced to suspended sentences that ranged from 1 month to 5 months.
8. In 2007, he was dealt with for further offences of common assault and stalk and intimidate. He was sentenced to suspended sentences for a period of 12 months.
9. In 2014 he was dealt with for possess ammunition and possess prohibited drugs, and fined. He was dealt with for a further offence of possess unregistered firearm. He was sentenced to a suspended sentence for 12 months. That suspended sentence was called up, and he was sentenced to a 12 month term of imprisonment with a non‑parole period of 2 months. In that same year he was dealt with for an offence of use carriage service to menace or harass. He was placed on a Commonwealth recognizance for 12 months.
10. In 2015, he was dealt with for two offences of dishonestly obtain property by deception. He received bonds for 12 months. In that same year, he was dealt with for offences of possess unauthorised firearm, stalk and intimidate, and contravening an apprehended violence order. He received s 9 bonds for 18 months. They were called up, and he was in prison for three months.
11. In 2016, he was sentenced for an offence of possess prohibited drug to a 3 month term of imprisonment. That same year for the same offence he received a fine. In 2019, he was dealt with for an offence for use carriage service to threaten to kill. He was sentenced to 3 months imprisonment. This was the sentence that has been served during the offender's current period of remand.
12. He also has a Tasmanian criminal history for driving and drug offences, and a Western Australian criminal history for offences of possess prohibited drug, cultivate prohibited drug, stealing and receiving. That offending occurred in 1999 and he received a suspended sentence.
13. Having regard to the offender's criminal histories, I am satisfied that they disentitle him to the leniency on sentence that would otherwise be available to a person of good character.
14. The following material was tendered on behalf of the offender during the sentence proceedings: 1. Exhibit 1 - Report of Dr Furst, psychiatrist, dated 7 May 2020; 2. Exhibit 2 - Further report of Dr Furst dated 6 February 2021; 3. Exhibit 3 - Defence written submissions.
15. The offender also gave evidence during the sentence proceedings. The offender's background is outlined in the reports of Dr Furst, and also in the offender's evidence.
16. Dr Furst assessed the offender on 23 April 2020 for a period of 1 hour via AVL, and reassessed the offender on 3 August 2020.
17. The offender reported to Dr Furst that he grew up in Kogarah. He had one older sister. His mother and sister both worked as nurses. His father was a truck driver. He described to Dr Furst a history of being restless, fidgety and inattentive in class, which Dr Furst considered was highly suggestive of ADHD.
18. His parents separated whilst he was a child. His mother remarried. He described a bad relationship with his stepfather, which caused him to become rebellious during his teenage years. During his high school years, the offender's father committed suicide. That was 10 days before the offender's 13th birthday. The offender continued to struggle emotionally in his teen years as a consequence of his father's suicide. He left high school in Year 8.
19. From the age of 15 years, he was raised by his older sister, Kathy. He studied nursing between the ages of 17 and 20 years, but his studies ceased as a consequence of his increased drug use. In his 20s and 30s he worked in stores and warehouses. The last time he was employed was 15 years ago. He has been on a disability support pension for 12 years. His mother passed away in August 2017, having suffered from emphysema. He also lost his older brother in April 2018 and his sister in June 2018.

Drug and alcohol history

1. The offender reported that he commenced using cannabis at 14 years of age. His use continued intermittently throughout his life. Dr Furst noted as follows: "He used heroin from the age of 17 years, stating, 'I hated my dad for killing himself.' His addiction to heroin continued throughout his late teens and into his 20s, Mr Masters stopping heroin when he was around 25 to 26 years of age."
2. The offender also reported use of amphetamines throughout his 20s. In recent years he reported he has been using ice, which led to episodes of drug‑induced psychosis in 2014 and 2015. He denied any drug use since his arrest.

Psychiatric history

1. The offender reported three admissions to psychiatric units, two at Campbelltown Hospital in 2014, and one at Bankstown Hospital in 2015, in the context of apparent episodes of drug‑induced psychosis. Dr Furst reviewed Justice Health medical records. He noted that mental health assessments had been conducted on 24 May 2019, 10 July 2019 and 27 July 2019, indicating there were no signs of mental distress or psychosis. Whilst the offender reported hearing voices during an assessment on 29 July 2019, it was noted that his mood was reported as stable, suggesting no indication for the diagnosis of a major mental health disorder such as schizophrenia.
2. During a mental health assessment on 10 July 2019, the offender reported that he had been sexually assaulted in the early 1980s whilst in a juvenile detention centre, and that legal proceedings for compensation had been commenced with respect to that incident.
3. After a psychiatric assessment on 16 August 2019, the offender was commenced on Avanza. He was later prescribed Seroquel. He also reported that he was assaulted in custody in May 2019, suffering a fractured rib, and subsequently was placed in protective custody.

Medical history

1. The offender has a history of severe emphysema, having been diagnosed several years ago. It is currently at stage 3, which means he becomes breathless after climbing ten stairs and should be receiving home oxygen. He is under the care of a respiratory physician.

The offender's circumstances at the time of the offending

1. The offender reported to Dr Furst that at the time of the offending he was involved in a relationship with Debbie Weatherly, who was also an ice user. She fell pregnant. The offender assumed he was the father. The baby was born on 25 October 2018, that is, five days before the offending. She was removed into the care of FACS, having been born with signs of amphetamine intoxication withdrawal. The offender subsequently discovered that there may be some uncertainty about the paternity of the child. This was unexpected.
2. The offender reported that he and Ms Weatherly had prepared their unit for the arrival of the baby. It was in the context of arguing with Ms Weatherly that the offender told Dr Furst he set fire to baby clothes, which in turn led to the unit catching fire. Dr Furst noted the following: "Mr Masters now regrets his actions in relation to the fire‑setting and property damage. He said he wanted to apologise for lying to police at the time of the initial investigation. He also said he wanted to apologise to the other tenants affected. He also wanted to apologise to the Court, the police, the fire brigade, the ambulance, and the surrounding community for his behaviour."

Mental state examination

1. Dr Furst was of the opinion that there were no indicators of psychosis or major mood disturbance, and further, that the offender did not exhibit any paranoid thinking. He noted the offender appeared to be of approximate average to below‑average intelligence. In the opinion of Dr Furst, the offender suffers from substance use disorder, previous episodes of drug‑induced psychosis, and ADHD. Dr Furst summarised the offender's background in the following way: "Mr Masters had an unfortunate childhood, losing his father at a formative age to suicide, having a poor relationship with his stepfather and subsequently becoming rebellious, with the early onset of drug abuse and addiction. His emotional and behavioural problems were compounded in his teenage years when Mr Masters was apparently sexually abused whilst in juvenile justice detention, the associated trauma likely maintaining addiction to drugs of abuse, especially heroin around that time. He continued to live a dysfunctional lifestyle throughout the majority of his adult years, punctuated by difficulties in his intimate relationships, physical health problems, recurrent addiction to drugs, and a lengthy history of prior criminal offending. Association with antisocial pro‑criminal peers has also been problematic."
2. Dr Furst recommended the following future treatment: that the offender is to remain in the care of Justice Health; that upon release from custody he should obtain further drug and alcohol treatment; and also obtain psychological therapy in relation to his previous sexual abuse (through Victims Services).
3. Dr Furst reassessed the offender on 3 August 2020 and provided a further report. Dr Furst noted as follows: "Mr Masters was expansive and was emotional at times during the assessment period, especially in relation to previous losses and traumas. His mood was much the same as when assessed on 23 April 2020. Mr Masters was anxious about his future, including where he would live when released from custody, effectively making himself homeless by burning down his Housing New South Wales unit in October 2018. He still regards New South Wales as his home, even though he has a son who lives in South Australia. There were no indications of a persistent or severe mood disorder, such as major depressive disorder or mania. He was not psychotic and was not suicidal. He was anxious about his upcoming sentence hearing and his future when released from custody."
4. In relation to the offender's background, Dr Furst made the following additional observations: "I remain of the opinion that Mr Masters has a history of childhood emotional and behavioural problems that were likely compounded in his teenage years when Mr Masters was apparently sexually abused whilst in juvenile justice detention, the associated trauma likely maintaining his addiction to drugs of abuse, especially heroin, around that time."
5. Dr Furst continued: "It is likely that Mr Masters' experiences of emotional dysregulation, re-experiencing phenomena, anxiety and anger in his teenage years, and in his adult years, are not just maladaptive emotional responses, but are responses driven by these type of brain pathways and deficits caused by the effects of long‑term exposure to trauma, abuse and neglect in his childhood and teenage years. Those factors likely also help to explain his dysfunctional lifestyle and poor decision‑making throughout the majority of his adult life, difficulties in his intimate relationships, physical health problems, recurrent addiction to drugs, a lengthy history of prior criminal offending, and his current offending in October 2018."

The offender's evidence

1. The offender gave the following evidence during the sentence proceedings. He clarified that he had been sexually assaulted whilst being held overnight at a juvenile facility. He described that his symptoms of hearing voices had "settled down" since a recent change in medication. In relation to how he felt about his offending, he gave evidence that it was "not the easiest thing to live with" and that he "didn't mean to do what he done". He explained in cross-examination that he was off his medication and he was not in a good headspace. He said, "I can't express how sorry I am to all these people."
2. When he is released from custody, he gave evidence that he intends to address his drug problems by engaging in counselling and rehabilitation. He accepts he needs assistance to remain abstinent. In cross‑examination, he said he was now motivated towards his rehabilitation because of his two daughters and three grandchildren.

Submissions of the parties

1. The Crown relied upon written submissions, supplemented by further oral submissions. Mr Stitz, on behalf of the offender, also relied upon written submissions, further supplemented by oral submissions. The Crown comprehensively set out in written submissions those factors relevant to an assessment of the objective seriousness. The Crown submitted that the offender's prospects of rehabilitation would be guarded at best, given the offender's lengthy criminal history and longstanding substance use issues, together with emotional dysregulation, referring to the reports of Dr Furst. The Crown conceded that it would be open to the Court to make a finding of special circumstances.
2. Mr Stitz, on behalf of the offender, conceded that the offending was objectively serious and warranted a significant gaol term. However, it was submitted that in circumstances where the state of mind of the offender was recklessness, it must fall below an intentional act causing the same harm. It was submitted that the Court should have regard to the offender's plea of guilty, the offender's childhood circumstances, the absence of any previous drug counselling or trauma‑focused counselling or therapy. That would, in Mr Stitz's submission, support a finding of special circumstances.

The relevance of the offender's background

1. Having regard to the offender's background outlined in the reports of Dr Furst, and the opinion of Dr Furst that this likely explains his dysfunctional lifestyle and poor decision‑making in adulthood, I am satisfied that the background reduces his moral culpability, and I propose to moderate the otherwise appropriate sentence in accordance with the principles enunciated in Bugmy v R (2013) 249 CLR 571; HCA 37.

Remorse

1. The offender has expressed remorse to Dr Furst, and also in his evidence before me. I accept he is remorseful for his conduct, although I truly doubt whether he even today fully appreciates the catastrophic consequences of his behaviour for the other residents of the apartment complex.

Prospects of rehabilitation

1. Any view of the offender's prospects of rehabilitation must necessarily be guarded, having regard to his longstanding substance use issues and his lengthy criminal history. It is positive that the offender has been abstinent from substances whilst in custody. The Court is hopeful that he positively engages with substance use treatment programs upon his release from custody. I expect that he would also be greatly assisted by engaging with trauma‑focused counselling and therapy, as recommended by Dr Furst. At this stage, I am unable to find he is unlikely to reoffend.

Special circumstances

1. I am satisfied that special circumstances are established having regard to the obvious need for a lengthy period of supervision upon release to ensure that the offender is assisted in maintaining his abstinence from prohibited drugs, I propose to vary the statutory ratio between the non‑parole period and the parole period pursuant to s 44(2), Crimes (Sentencing Procedure) Act.

Commencement date of the sentence

1. There is a question of whether the backdating of the sentence should exclude three months during which the offender was serving a sentence for an offence of use carriage service to threaten to kill (between 23 December 2018 and 22 March 2019). For the purpose of considering the question of totality with respect to this offending, and whether the sentence should be notionally served concurrently, partly concurrently, or cumulatively, I have considered the facts for the earlier offending (Exhibit 5). Having regard to the objective seriousness of that offending, I am satisfied that the sentence imposed today should be wholly cumulative.

Determination

1. I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate, pursuant to s 5(1), Crimes (Sentencing Procedure) Act.
3. I have had regard to the objective gravity of the offence, the relevant prescribed maximum penalty, and the offender's subjective circumstances.
4. Stand up, please, Mr Masters.
5. In relation to one offence of damage property by fire, pursuant to s 95(1)(b), Crimes Act, you are convicted.
6. I sentence you to a non‑parole period of 3 years and 10 months, to date from 20 March 2019 and expire on 19 January 2023, with the balance of term of 2 years to expire on 19 January 2025.
7. The starting term for that sentence was 6 and a half years, which I have discounted by 10% for your plea of guilty. The earliest date upon which you will be eligible for parole is 19 January 2023.
8. I have found special circumstances, and I have varied the ratio between the non‑parole period and the parole period. So you will spend less time in custody and more time on parole, on the basis that I am satisfied that you would be assisted by a lengthier period of supervision on parole.

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: 14 July 2021