244 CLR 120
R v Mills [2005] NSWCCA 175
Veen (No 2) v R (1988) HCA 14
Source
Original judgment source is linked above.
Catchwords
244 CLR 120
R v Mills [2005] NSWCCA 175
Veen (No 2) v R (1988) HCA 14
Judgment (2 paragraphs)
[1]
Judgment
Mr McArthur, I usually tell people in advance what sentence is to be imposed. In your case I propose to sentence you to seven years imprisonment with a non‑parole period of four years.
I am persuaded to make a marginal adjustment for special circumstances. I propose to date that sentence from the date you came into custody. That sentence includes taking into account the matter on the Form 1. Now I have to give my reasons for those orders that I will make and it requires me to address quite a number of things and I am doing this immediately after the submissions are finished, so I will do my best to get through it as quickly as I can.
Scott McArthur appears today for sentence in relation to an offence that he pleaded guilty to at the Local Court alleging that he intentionally caused a fire at Nowra on 14 September 2019 and was then reckless as to the spread of that fire to vegetation on public land, to wit, bushland between Depot Road and Berry Street, Nowra. That offence carries a maximum penalty of 21 years' imprisonment and has a standard non‑parole period of five years imprisonment. He asks me to take into account on a Form 1, an offence under the same provision committed by him a short period of time before the primary offence, that is intentionally lighting a fire and being reckless as to its spread at a location described as Bice Road, Nowra on 14 September 2019.
I will deal with the matters that are clearly not in dispute. The prisoner pleaded guilty at the Local Court and was committed for sentence and I am informed that he should receive a discount of 25% upon the otherwise appropriate sentence for the early pleas of guilty that are entered and he is accorded that.
At the time of the offending with which I am concerned, the offender was subject to a Community Corrections Order that had commenced in January 2019 and was to expire in January 2020. That CCO, if I might just call it that, had been called up on two separate occasions, as his criminal history reveals, by the Local Court. Firstly, on 14 May 2019 and then again apparently on 13 August 2019. Those call‑ups did not result in any variation to the order although I note the second call-up in time occurred only 14 or 15 days before the offending with which I am now concerned. Thus, the offending was in breach of conditional liberty. That is an aggravating factor pursuant to s 21(2) Crimes (Sentencing Procedure) Act 1999. I will refer hereinafter to that legislation as "the Act".
I will come to the facts of this matter shortly and I will consider them in the context of the various matters I need to take into account including the relevance of the standard non‑parole period. The reality is that for a range of reasons, having regard to the location of the fires, the risks at the time of the lighting of the fires of damage to property and the like, and particularly having regard to the criminal history of the prisoner, the purposes of sentencing arising under s 3A of the Act are all pertinent in this matter but particularly in regard to both general and personal deterrence. The Crown in its closing submissions invited the Court to impose what it described without definition as "condign punishment" and made a number of observations that are without doubt correct in the particular context relating to local concerns about the lighting of fires. But from the outset I point out this fact, as it relates to local circumstances and the experiences of people in the Shoalhaven and the South Coast over Christmas and New Year. The fires set by the accused were set in the spring of 2019 when the conditions were clearly not as bad as subsequently developed in late spring and the summer of 2019/2020. Had these fires been set in the course of what could be described from local experience as "the bushfire crisis," that ultimately led to the destruction of Lake Conjola or the Conjola village and severe devastation to the Forest Road area near Nowra, then the conduct of the prisoner may be viewed somewhat differently from the way I view the matter at this point. But that having been said, it is serious misconduct to be lighting fires in the manner and locations in which the prisoner did. Whilst I acknowledge the essence of what was put by the Crown in his oral submissions as having some role to play in the approach that I should take to this matter, it does not have the same effect as might have been had these offences been committed at a later time when the community was badly affected by a range of fire events occurring around the district. I have not been given any evidence at all that at the time of the lighting of these fires there were other fires in the Shoalhaven district that that affected property.
Be that as it may, the facts of the matter are set out in an 'Agreed Statement of Facts'. The sequence 1 offence, which is the principal offence for sentence, occurred shortly after 5.30pm on 14 September 2019. I accept as a contextual factual matter the prisoner was "homeless" and living in the bush in the Nowra district. The prisoner was seen by a witness in the bushland near the pipeline that runs from Depot Road, Nowra to Bice Road, Nowra. This bushland I noted adjoins a residential area. This citizen, who is to be commended, observed the prisoner bending down in the bushland and she saw smoke and a flicker of flame where the prisoner was bending down. She flagged down another vehicle in which two men were present. She approached the prisoner. He walked in her direction. The prisoner denied to her that he had lit what was obviously the fire observed by the witness and she confronted him in terms that she indicated that she did not believe his denial. She saw a pile of vegetation burning in an area of approximately 2 square metres and made a call to triple‑0. The prisoner began walking away. He was challenged by one of the males the witness had flagged down. The prisoner was holding a bottle of alcohol and a stick in his right hand. When asked why he was leaving, the prisoner claimed that he had a warrant. He was asked to wait but he ran off. That male followed the prisoner for approximately three to 400 metres into bushland before losing sight of him behind a row of houses at Depot Road. The two men endeavoured to extinguish the fire using clothes, bottles of water and soft drink cans. The Rural Fire Service responded to the triple‑0 call and extinguished the fire and the total area burnt was approximately 35 square metres. It obviously had spread from what had been observed by the female who had intervened at the time.
The matter on the Form 1 involves a fire that was set at an earlier time from my understanding of the chronology, again on the same date. Between 5.48pm and 5.55pm, members of the public made triple‑0 calls in respect of a fire in bushland near the corner of Bice Road and Osborne Street, Nowra. This fire is said to be approximately 390 metres from the Depot Road fire if travelling through bushland which I believe I can rightfully conclude the prisoner did. There is no evidence of him having access to a vehicle. It would be a distance of 2.8 metres if travelling by car. The facts state the offender lit this fire before lighting the Depot Road fire but it was, as the facts reveal, discovered after the prisoner had been challenged in relation to the principal offence. In the case of this particular fire it damaged bushland but to a greater extent. The area that was burnt was 117 square metres. One might have thought if one were measuring the seriousness of an offence by reference to the extent of damage the matter on the Form 1 was more serious than the principal offence. Why the matters were prosecuted in the manner that they are, is not made known to me.
The prisoner has given evidence before me today and sought to assert in very brief terms, when asked generally, "Why did you light the fires", that he was living in the bush and that he effectively lit a fire to cook but it got out of control. I do not accept that explanation for a number of reasons. There is no evidence of any material adjacent to the fire consistent with a camp or consistent with setting a fire for camping and cooking purposes. The setting of two fires a substantial distance apart is not consistent with setting fires for "cooking purposes". And reflecting upon the detail of the facts, if a matter on the Form 1 was committed before the principal offence, then obviously it was set up and allowed to develop unattended by the prisoner as he moved to the second position to commit the principal offence. The reasons for the prisoner committing the offences, of course, are not clear. Certain conclusions can be drawn but it is difficult to be satisfied of any particular conclusion beyond reasonable doubt. But there is no evidence, for example, the prisoner is a professional fire fighter with knowledge of the ignition of fires or the potential means of ensuring the fires are 'successful', if I could use that expression, in their spread. There is no evidence the prisoner is what is sometimes colloquially called a "pyromaniac", that he gets some sexual or other satisfaction from setting fires. There is no evidence that the prisoner had a particular grudge against a particular individual and intended that a particular harm be caused to a particular person or particular individuals. But, of course, I bear in mind as I must, that the prisoner has pleaded guilty to a specific offence with specific elements and what is proven beyond reasonable doubt is that he intentionally lit each fire and was then reckless as to its spread. This is self‑evident given the fact that he lit one fire and abandoned it and it was allowed to spread, and when he lit the second fire and was challenged he did not in any way seek to quell the fire and in fact walked away from confrontation to avoid detection.
There is no evidence that the prisoner used any accelerant to advance the fire. But, of course, as I pointed out to the parties, I think I am entitled to take into account, as anybody living in New South Wales would have understood that spring of 2019 was a period of considerable risk across the State for bushfires with very dry conditions, drought conditions within the State, and extended periods without rain.
I was in Grafton during the first two weeks of August. I appreciate Grafton is a long way from Nowra, and on the two occasions that I flew out of Grafton on Friday afternoons after court I observed in the Grafton area at least five or six helicopters using the Grafton airport as a base for landing and taking off to fly to bushfires. Around the Grafton township there could be clearly seen from the air, at least eight or nine fires in the various National Parks and areas within the Valley. Other bushfires, of course, were occurring throughout the State. The citizens of the State were uniformly vigilant about the danger that bushfires presented to the community given the existing conditions.
The ignorance of the prisoner as to the dangers of lighting fires given the existing conditions in the Shoalhaven is of no moment, to my mind. It merely informs the extent of the recklessness of the prisoner. In dealing with the principal offence and examining the recklessness of the prisoner, the fact of the commission of an offence on the Form 1 of identical type, some distance apart, reflects again upon the extent of recklessness of the prisoner at that time. Of course, as I said, these matters are matters of degree bearing in mind other factors that I have already referred to including the prisoner's lack of expertise in relation to the setting or quelling of fires and, of course, the absence of any use of any accelerants.
In the written submissions of counsel for the prisoner reference was made to a decision of the Court of Criminal Appeal of R v Mills [2005] NSWCCA 175. That judgment was from the Court of Wood J, who was then the Chief Judge of the Common Law Division, agreed to by Grove and Hoeben JJ. The circumstances in Mills are very different from the situation here and it provides little assistance in terms of comparative sentencing. The common elements are, of course, the same offence. In Mills' case there are a number of offences. However, when Mills committed the offending for which he was sentenced the maximum penalty was 14 years imprisonment, the standard non‑parole period was the same as it is now under Pt 4 Div 1A of the Act, that is five years imprisonment. Mr Mills received a benefit of a year's imprisonment to be served by way of periodic detention. The Court of Criminal Appeal quashed those orders of Puckeridge QC DCJ and imposed a total sentence of five years two months imprisonment with a non‑parole period effectively of two years eight months. I bear in mind of course, in fixing that sentence their Honours at [75] reflected upon provisions or then requirements in respect of Crown appeals, the case was a Crown appeal, and particularly the principle that the sentence imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court at first instance and such orders that are made will generally be towards the lower end of the available range of sentence. The Court had to take into account two other factors, the period of time the respondent to the appeal had been left in uncertainty and the period of time that he had served by way of periodic detention up until that particular point.
Whilst Mr Mills was sentenced in relation to three counts, Counts 1 and 2 occurring on the same date, Count 3 occurring approximately a month later, and whilst Mr Mills was, as I understand it, a volunteer Rural Fire Service member and thus had both expertise and the knowledge of matters of risk and the like that are not to be ascribed to this prisoner, he was a person who had a number of very favourable subjective circumstances. A finding of good prior character, a diagnosed mental disability that might have lessened the weight to be given to general and personal deterrence, assistance provided by him in confessing his involvement, genuine expressions of remorse, positive steps taken towards rehabilitation and very low risk of re-offending.
These favourable matters taken into account by the Court of Criminal Appeal of course do not apply to Mr McArthur. In that regard, to deal with some of the matters that arise from the evidence I bear in mind the prisoner was born in 1979 and thus on my calculation is now 41 years of age.
He has a lengthy criminal history that dates back to 1994 and I do not propose to go through the detail of that, some of those matters in the Children's Court. But significantly whilst he has no prior convictions for setting fires, as I said there is no evidence of any psychiatric imbalance that might suggest a danger to the community by the prisoner having an interest in lighting fires for self‑gratification, he has a number of findings of guilt for dishonesty for which he has been imprisoned; for damaging property and the like. Particularly, he has a conviction recorded at the Sydney District Court in July 2005, ironically just a couple of months after Mr Mills' appeal was dealt with in the Court of Criminal Appeal, for robbery whilst armed with an offensive weapon causing wounding. For that he was sentenced to a very substantial term of imprisonment of 12 years, a non‑parole period of nine years was fixed. That means a non‑parole period was fixed absent the finding of special circumstances. An appeal to the Court of Criminal Appeal was unsuccessful and that order stood. The offender on release from custody sometime after, as I would understand it, his parole period had expired was convicted in relation to offences of larceny at the Nowra Local Court in April 2017 for which he was placed on good behaviour bonds. He was called up in relation to breaches of those bonds on 19 September 2017---
OFFENDER: Set up by my mum's husband.
HIS HONOUR: --- and in respect of four counts of larceny and a breaking, entering and stealing the bonds were continued. He was convicted at the Nowra Local Court on 19 September 2017 in relation to dishonestly obtaining property by deception in respect of seven counts and sentenced to 12 months imprisonment with a non‑parole period of two months. Shortly after those convictions were recorded at the Nowra Local Court on 8 January 2018 he was convicted for being involved in a police pursuit and driving dangerously for which he was sentenced to 15 months imprisonment with a non‑parole period of eight months. That offence related to an offence of refusing to submit to a breath analysis for which he was sentenced to a concurrent term of imprisonment.
That brings me to the matters in respect of which he was subject to conditional liberty at the time of the offending with which I am now concerned. They were offences of breaking, entering and either stealing or destroying or damaging property committed between the 6 and 8 December 2018 for which he was placed on the Community Correction Orders that I earlier identified on 7 January 2019. I have already dealt with the history of those matters.
I should point out that when the prisoner was arrested on 15 September he was apparently in custody of offensive implements in a public place. They have been described to me from the bar table. They are obviously unsophisticated implements if I could call them that. He was sentenced by the Magistrate for those offences on 17 March 2020, which I understand to be the date he was committed for sentence on the current principal matter, to term of imprisonment of two months commencing on 16 September 2019. Thus, those sentences had expired by the time he was committed for sentence. I propose to date the sentences I impose from the date he came into custody, I am mindful that that is separate offending but in the scheme of things, given the modest sentences imposed by the Magistrate and the character of the offending I do not believe there is a need for me to impose a sentence for the principal offence here that is partly cumulative or entirely cumulative upon the sentences imposed by the magistrate.
In this particular matter, of course, because there is a standard non‑parole period I am required firstly to have regard to s 54A(2) of the Act. That provides that the standard non‑parole period represents the non‑parole period for an offence listed in the Table of the Division taking into account only the objective factors affecting the relative seriousness of that offence in relation to an offence in the middle range of objective seriousness. I am also required to have regard to s 54B(2) of the Act which provides that the standard non‑parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence including the non‑parole period of that offence.
In this particular matter I am required to have regard to a matter on the Form 1. The matter on the Form 1 is of very real significance in the sentencing for the principal offence. On one view of it, it might be regarded as a more serious offence than the principal offence if only by reference to the amount of damage that was done and having regard to the fact that it was an offence committed before the commission of the principal offence where the prisoner left the fire unchallenged to essentially fend for itself without regard to the consequences of his conduct. By regard to the fact that there is a matter on the Form 1, I bear in mind what was said about taking into account matters on a Form 1 as discussed by the Court of Criminal Appeal in the guideline judgment in 2002 in respect of Form 1 matters. In that judgment the Court cautioned sentencing courts to appreciate that one is only concerned with sentencing for the principal offence, one is not required to determine the extent to which any adjustment to the appropriate sentence for the principal offence should be made by regard to the matters on the Form 1. But it made it very clear that if there are matters, or a matter, on a Form 1 to be taken into account, having regard to the character of that matter and its relationship to the principal offending, the need for greater weight to be given to denunciation and retribution may be substantial and, of course, the extent to which the sentence for the principal offence may be affected by consideration of the matter on the Form 1 may be significant. The Court pointed out in the discussion which appears primarily at [18]‑[44] of that judgment (see Attorney General's Application (No 1) (2002) 56 NSWLR 146) that the "entire point of the process" is usually to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal offence had stood alone. As I said, it was wrong to suggest that the additional penalty should be small, sometimes it will be substantial. It very much depends upon the character of the offence on the Form 1 and its relationship to the principal offending. There are matters, of course, that limit the extent to which this will be so, the specific provisions of the Act, the principle of totality and as I said, it is rarely appropriate as the Court held for a sentencing judge to attempt to quantify the effect on the sentence for the principal offence of taking into account the matters on the Form 1. The Court pointed out that;
"A judge must be careful to assess whether it is appropriate to proceed to sentence on a particular basis, bearing in mind that the administration of justice could be brought into disrepute by the Court proceeding to sentence a person guilty of an offence on a "manifestly inadequate unduly narrow or artificial basis".
Thus, in that regard, having regard to the facts of the matter, the matter on the Form 1 in this case is of considerable significance.
I discussed the issue of where the matter for sentence fell within the range of offending contemplated by the legislation, particularly the operation of s 54A of the Act. The Crown submits that the offending falls within the middle of the range of objective seriousness of offences of this type. The defence says it is below the middle range of objective seriousness. I am mindful of the fact that it has been said that the middle range of objective seriousness is not necessarily a "narrow band". I am of the view that this offending is just below the middle range of objective seriousness bearing in mind that the standard non‑parole is as the High Court held in Muldrock v R [2011] HCA 39; 244 CLR 120, the judgment responsible for the subsequent amendments to the Act, that the standard non‑parole period forms a guidepost for consideration of the appropriate penalty to be imposed by way of a non‑parole period. That having been said in the determination of the matter, if the principal offence had stood alone without regard to the matter on the Form 1 then, bearing in mind the view I formed as to where the offence fell by relationship to the middle range of objective seriousness of offences of this type, the non‑parole period I would have fixed would have been something lower than I have concluded. But in the context of the consideration of the seriousness of the offending of the prisoner, whilst I accept as a mitigating factor that the respective offences were "unplanned", there are other considerations to bear in mind, particularly that in sentencing the prisoner for the principal offence I am sentencing him for an offence which represents a "course of conduct" on his part, albeit a course of conduct over a relatively short period of time.
So far as other aggravating factors that arise informing the objective facts the Crown does not identify any particular aggravating factor that performs that task. I have already identified the commission of the offence on conditional liberty as a relevant aggravating factor under s 21A(2) of the Act but does not inform the assessment of the objective seriousness of the offending. The mitigating factor I have concluded, that the offence was "unplanned" is a matter relevant to the assessment that the offence falls just below the middle range of objective seriousness.
I factored into the assessment of the offending the fact that the prisoner was prepared to light the fires and leave them unguarded, that the prisoner lit fires in bushland close to a residential area and that there was a real risk, without intervention, of the fires spreading and causing significant damage. But at the same time I have to acknowledge the fact that ultimately the damage caused was limited to the burning of a relatively small area in the instance of the principal offence and a somewhat larger area of bushland in relation to the matter on the Form 1. I have factored into my consideration of the matter, the absence of the use of an accelerant and also the absence of any motivation on the part of the prisoner that might aggravate the offending. Of course, if there was evidence that the prisoner committed the offences for personal gratification, or as motivated by spite towards particular individuals, then the objective seriousness of the offending would be substantially increased.
It was submitted by counsel for the prisoner that I should have regard to the matters discussed by Woods J at [53]‑[69] of Mills, as informing the assessment of the objective gravity of the offending. The Court in that matter reflected upon the seriousness of the offending that it was concerned with by reference to the maximum penalty which then stood at 14 years. I have been reminded that the maximum penalty for this type of offending has been substantially increased and the likelihood at all of committing an offence of this type that would warrant a community based order is very minimal indeed. Wood J pointed out that the potential consequences of such an offence for life and property, the clear legislative intention and the fact that the respondent lit more than one fire called for substantial full time custodial sentencing and such is the case here. As I said, the course of conduct is not identical to that of Mills. He committed his offences over a period of time greater than this prisoner, but it is still relevant. I appreciate that the fires lit by Mr Mills in respect of Counts 1 and 2 of the matters dealt with by the Court of Criminal Appeal were commenced by the use of accelerants, by the use of firelighters, and I have noted the significance in sentencing that person given his responsibilities as a Rural Fire Service officer. He was also a person, by the time of the commission of the third offence on 8 February 2004, who had a full understanding of the effects of his previous conduct. He had used in fact, Molotov cocktails when he committed the offence on 8 February 2004. The Court noted the community concern in relation to bushfires when they are deliberately lit as is the case here.
But by reference to the judgment of Mills, the various matters their Honours identified did not send out an exhaustive list of relevant considerations to the sentencing of an offender under this particular section. And as I said, the judgment provides little assistance for comparative sentencing purposes having regard to the different maximum penalty, the fact that the ultimate sentence imposed by the Court of Criminal Appeal was less than should have otherwise been imposed in the District Court, and also having regard to many favourable things that were available to that prisoner for consideration that I have already identified, including his mental state and his prior good character and genuine expressions of remorse and the like.
In Mr McArthur's case we do not have genuine expressions of remorse and I could not conclude that the prisoner is relevantly remorseful as a mitigating factor under s 21A(3). The mitigating matters arising under s 21A(3) of the Act are limited. I have already pointed to the lack of planning in the offending which is a relevant matter to the objective seriousness assessment. The plea of guilty is a mitigating factor but for that, the prisoner receives a discrete discount. But I could not conclude that the prisoner has good prospects of rehabilitation or is unlikely to further offend because it is quite clear, having regard to his past performance, his conduct in relation to the current matters and his attitudes expressed to the psychologist. Favourable findings in that respect are not available to me.
The psychologist who assessed the prisoner noted what she described as "mental health difficulties" that have contributed to his instability. But there is no evidence from her, nor any evidence from other sources, from previous assessments or the like, that the prisoner was suffering from a mental disability or mental illness such as to warrant consideration of the principles that arise in authorities such as DPP (Cth) v De La Rosa [2010] NSWCCA 194, particularly in the judgment of McClellan CJ at CL [177]-[178]. There is nothing in the material provided through the psychologist to the extent that one can rely upon it that identifies an issue that warrants lesser weight being given to the prisoner's moral culpability, or lesser weight being given to general deterrence. The prisoner, has a background of instability reflected in antisocial conduct as evidenced in his criminal history. She noted that he holds antisocial beliefs, preferring a life of substance abuse and offending to a life of abstinence and employment. She said the offending with which I am concerned was precipitated by an unstable lifestyle, living in the bushland and engaging in regular alcohol and cannabis abuse. There seems to be a suggestion in the objective facts that the prisoner was perhaps intoxicated to some extent by at least alcohol and perhaps by drugs at the time of the offending. But there is nothing in the material available to me to indicate that his presentation at the time of the offending provides any mitigation for the objective seriousness of the offences. She noted in the history that she obtained from him justifications and "minimisations" about his past history of offending amongst other matters.
She concluded it was difficult to identify protective factors for Mr McArthur as he presented as someone who was institutionalised, has struggled to engage in and benefit from past treatments, has limited insight into his mental health difficulties and has few pro‑social goals. Although she noted whilst in custody he's been able to maintain employment which suggested that he did have some capacity to regulate himself within a very structured environment, which is entirely consistent with him having some features of a person who is institutionalised. She also concluded that it was difficult to make realistic recommendations for him because he indicated to her that he would refuse to participate in any treatment programs and did not want to think about his plans for release.
OFFENDER: That's not correct.
HIS HONOUR: I am coming to that Mr McArthur.
In fairness to Mr McArthur, bearing in mind that report was prepared on 29 May, he has indicated to me, although not in his evidence but in interjections or statements he has made in the course of the proceedings, that he is willing to undergo treatments and participate in programs that might assist him. Whether I can accept him at face value from interjections made from the audio visual link room in which he sits at the moment is one matter. But I am prepared to note that the prisoner does say that the statements to the psychologist are not statements that he adheres to at the present time. What would be a key to his rehabilitation, as pessimistic as the future holds in that regard, would be proper and committed involvement in drug and alcohol counselling and, of course, finding stable accommodation. I bear in mind, as part of the factual matrix of this matter, of course, that the prisoner was living in the bush and was homeless. That is no excuse for setting fires. In fact it is a good reason for not setting a fire in bushland close to where one lives, the resultant damage of course could impact upon the circumstances of the relevant individual. But then again, the prisoner was not obviously influenced not to light the fires by reason of any risk to the area that he occupied.
In the psychological report there is a description of his upbringing. He has not had what could be called an advantaged upbringing. He is devoted to his mother and regards her favourably, although his father not so. His father I am informed in the report was a former policeman but had committed offences whilst performing duties as a policeman and served a custodial sentence. He regarded his father poorly and saw he was a person who treated his mother poorly. The psychologist opined that the father's imprisonment may have had an impact on the development of Mr McArthur's attitude towards crime. The other members of the family, that is his siblings, have little to do with him and appear to live pro‑social lives. He has not had any substantial employment and has been receiving Centrelink payments most of his adulthood and been receiving a disability support pension since 2015.
He contracted hepatitis C from shared use of needles in his late teens and underwent treatment for this for about four years. He has had other physical injuries. He has been shot. He has had head injuries. He has injured his body seeking to avoid apprehension. He has been involved in motor vehicle collisions and suffered head injuries. And as I said he has a history of substance and alcohol abuse.
He said the programs that he has undertaken such as the Get Smart Program and the SMART Recovery Program had not helped him to learn anything that would assist him to focus on normal life and he told the psychologist in fact that he was not interested in a lifestyle where one takes a job and does not use drugs.
OFFENDER: That's been taken out of context.
HIS HONOUR: He has had relationships with other people in a domestic context. I am sad to report that one of his partners committed suicide and this has had an effect upon him but‑‑
OFFENDER: That's nothing to do with this.
HIS HONOUR: ‑‑it is not a matter of significance in this sentencing as Mr McArthur has made clear from the audio visual link room.
The prisoner suggested that he was quite "institutionalised" in that he said that he felt comfortable in prison, he had fewer stresses in custody and he has made a number of statements, admittedly unsolicited in the proceedings indicating his wish to remain in custody. That does not deny me the responsibility of determining whether I should fix a non‑parole period.
I have noted that there is some history of symptoms consistent with psychotic episodes. He has been prescribed antipsychotic medication. He has made unusual statements in relation to either not hearing voices or hearing sounds from time to time but there is nothing in the history provided or in any of the other evidence to suggest that there is any psychological or psychiatric condition that is causally connected to the offending.
The psychologist noted that when he served a very substantial prison sentence of 12 years in respect of the robbery with wounding he completed the Violent Offender Treatment Program (VOTP). But he made, it seems, in the view of the psychologist, "few gains" from that program. She pointed out that in discussing the offending with him the prisoner presented with "justifications and minimisations for his offending" and that the police had tried to make it sound worse than it was.
Fortunately the extent of damage here was limited, but that was in no way attributable to any conduct on the part of the prisoner save for the fact that he did not use accelerant to start the fire otherwise the fire may have spread more quickly and been more extensive. In that case the risk to the community would have been greater than it was on the facts of this case.
Both parties provided very helpful written submissions which I have taken into account. I earlier spent a little bit of time discussing matters arising from the counsel to the prisoner's submissions, particularly by reference to the decision of Mills to which I referred a little while ago.
With regard to the Crown submissions, which pick up on matters that I have not already addressed and a number of the matters referred to in the Crown's submissions, I have already taken into account. The Crown submitted that whilst the present offending is less objectively serious than Mills it did not prevent the Court from finding that it fell within the mid‑range of objective seriousness. I accept that as a general proposition, bearing in mind the limited usefulness of Mills as a comparative case. But ultimately, in this particular matter the key feature to take the matter just below the middle range of objective seriousness, given the potential risk, was the lack of planning which did not apply in Mills' case.
The Crown made submissions about the relationship of the prisoner's homelessness with the offending. The Crown strongly objected to any conclusion that in some way the offender lit the fires for matters concerned with his homelessness. I accept that that is so. I do not accept the evidence of the prisoner in that regard. I have noted what the Crown has said about the psychological report.
The significance of the prisoner's prior offending is not to be lost sight of. His past criminal history is not a matter of aggravation. Notwithstanding, as I have said, that there are a number of findings of guilt previously for offences of damage to property. I neglected in that regard to point out that he has findings of guilt in relation to damaging a property in South Australia in 2001, the details of that are not made known to me. He also has findings of guilt in relation to serious offences in the ACT and in the Northern Territory. Particularly in the ACT he has a conviction in 1997 for damaging property for which he was sentenced to six months imprisonment suspended on entering a bond to be of good behaviour, and has a conviction in relation to assault occasioning actual bodily harm and an assault with intent to rob for which again he was sentenced to terms of imprisonment suspended on entering bonds to be of good behaviour.
But as the Crown points out, although his offending history is not an aggravating factor, it is a matter that does not entitle him to any particular leniency or really any leniency at all. The observations of the majority of the High Court in Veen (No 2) v R (1988) HCA 14; 164 CLR 465 can be seen as relevant.
The Crown submits that the instant offence is not an uncharacteristic aberration and that the prisoner has manifested in his past conduct a continuing attitude of disobedience for the law. Where a person demonstrates this, there is greater weight to be given to retribution, deterrence and protection of society, and that it was legitimate to take into account the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter this offender and other offenders from committing further like offences. This is correct. Denunciation, general and personal deterrence are particularly salient in this sentencing exercise.
I just digress for a moment to point out that I appeared as junior for Peter Hidden QC in the case of Veen (No 2), and I appeared for Mr Veen in the Court of Criminal Appeal. What the Court was talking about there in relation to the facts of Veen are, that Mr Veen was convicted for a second time for the same offence, that is manslaughter, in almost identical circumstances. Whilst those general principles do not necessarily need to be confined to a person appearing for sentence for an offence for which that person has been convicted before, and whilst I accept that the prisoner's criminal history shows an attitude of disobedience of the law, it is to be noted, to the extent that it may temper or moderate what is said by the majority in Veen, what the Crown quotes from the judgment.
The facts of the matter are, the prisoner does not have a history of lighting fires. Certainly a greater weight would need to be given to the dangerous propensity of the prisoner if in fact it was shown that the offence with which I am concerned was one that he had committed in the past.
But, of course, as the Crown points out, the extent to which the prisoner's criminal history is relevant is constrained by the objective seriousness of the offending for sentence unless, of course, the prior criminal history informs the Court in some way as to the character of the offending with which the Court is now concerned. This is not that case.
I accept the submission of the Crown and it is reflected in what I have concluded is the appropriate sentence in this matter, that the lighting of a fire in bushland is a serious and inherently dangerous criminal act and the community, whether it be the Shoalhaven community or any other community for that matter, is rightfully concerned that appropriate punishment be imposed. These matters are constrained by other aspects of the matter. There are matters such as discounts to be given to the appropriate penalty. There is in this case a determination by the Court that there are, I am persuaded by Mr Kwan, some special circumstances that require a slight downward adjustment of the non‑parole period in relationship to the balance of the sentence. To my mind a period of parole supervision of three years is sufficient for the prisoner's purposes. I do note the fact that the previous significant sentence imposed upon the prisoner was absent a finding of special circumstances, but no doubt the sentencing judge determined, as did the Court of Criminal Appeal, that a period of three years in that particular instant was sufficient to reflect any desire to assist the prisoner with his rehabilitation.
The previous sentence of the prisoner probably has substantially contributed to his institutionalisation to which Mr Kwan referred and it is the case that institutionalisation may warrant a consideration of the adjustment of the relationship of the non‑parole period to the balance of the sentence to assist a particular offender to adjust community living. As I said, in this particular matter that adjustment is recognised but it is not a significant matter given the relationship of the non‑parole period to the total sentence that I have settled upon.
So far as the written submissions of Mr Kwan are concerned, again very ably as with the Crown, he has drawn my attention to the psychological report. It is submitted on behalf of the prisoner that his history of his anxiety, contributing to his homelessness, has in effect contributed to the offending conduct. It is submitted by Mr Kwan that "to a limited degree" those principles in De La Rosa to which I have referred generally could be considered and particularly there might be some reduction of the prisoner's moral culpability and that the prisoner was an inappropriate vehicle for any element of general deterrence. I do not accept that submission. The evidence is not persuasive or even clear of even an indirect causal connection between any past history of anxiety and the offending behaviour. Although I accept that his homelessness is a contextual issue in the assessment of the objective facts. His homelessness could be attributed to a range of issues including his drug dependency or his lack of interest in being involved in pro‑social conduct.
I have had regard to what has been put about his substance abuse, he has a long history of that, but again that is not a mitigating factor. Again Mr Kwan reminds me of the requirement of proportionality in the imposition of the appropriate penalty. In that regard I bear in mind most importantly the maximum penalty, the increasing of the maximum penalty since the decision of Mills in 2005 although, of course, no adjustment to the standard non‑parole period. It is conceded however, in this particular matter that continuing disobedience of the law requires greater emphasis on retribution, deterrence and by reference to the "purposes of sentencing", the need for protection of the community. I believe there is a risk to the community presented by the prisoner.
I have noted what has been put by Mr Kwan in relation to the relevance of the standard non‑parole period and I have already referred to that and the need for intuitive synthesis in determining the appropriate sentence and the relevant non‑parole period.
I have dealt with the issues that are relevant to special circumstances.
The "purposes" of sentencing identify the promotion of an offender's rehabilitation as a relevant purpose of sentence and I have taken that into account but that has to be weighed against a case of this type demanding in all the circumstances, as is conceded, the weight to be given to deterrence and retribution.
Ultimately, it seems to me that having regard to the character of the criminality of the principal offence and the matter on the Form 1, in the context of the maximum penalty available and in the context of the criminal history of the prisoner with an appropriate discount for the plea of guilty, the appropriate sentence of imprisonment should be seven years and with a finding of special circumstances, noting the relevance of the standard non‑parole period as a guidepost, I have concluded the non‑parole period should be four years given what I have said about the offence being only just below the middle range of objective seriousness, but having to take into account the matter on the Form 1 as increasing the totality of criminality.
Thus, the orders I make in relation to this matter are as follows: Mr McArthur in respect of the principal offence, that is H72491519 sequence 1, taking into account the matter on the Form 1, that is sequence 2, you are convicted. You are sentenced to a term of imprisonment by way of non‑parole period of four years to commence on 15 September 2019 and to expire on 14 September 2023. A balance of sentence of three years imprisonment is imposed, that will expire on 14 September 2026.
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Decision last updated: 17 November 2020