R v Miles [2016] ACTSC 83

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2016] ACTSC 83

1. Jordan Miles is convicted of arson on 27 October 2015 (CC 15/10249).

2. Jordan Miles is sentenced to 18 months imprisonment to commence on 27 October 2015.

3. Jordan Miles is convicted of damaging property, namely, the front window of the Kambah premises on 27 October 2015 (CC 15/10250).

4. Jordan Miles is sentenced to three months imprisonment to commence on 26 February 2017 to be cumulative as to one month on the sentence for arson in Order 2.

5. Jordan Miles is convicted of damaging property, namely, the rear window of the Kambah premises on 27 October 2015 (CC 15/10251).

6. Jordan Miles is sentenced to three months imprisonment to commence on 26 February 2015 to be concurrent with the sentence for damaging the front window of the premises in Order 4.

8. A non parole period of 10 months is set, to commence on 27 October 2015 and end on 26 August 2016.

9. It is recommended that, in granting Jordan Miles parole, the Sentence Administration Board address, in particular, the need for treatment and counselling for drug and alcohol abuse and anger management.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentencing - damaging property- arson - principles applied in sentencing for arson - siege - police negotiations - extent of damage - anger management difficulties - possible rehabilitation and counselling

Director of Public Prosecutions (Vic) v Derby [2007] VSCA 92; (2007) 171 A Crim R 302

Halden (1983) 9 A Crim R 30

Porter v The Queen [2008] NSWCCA 145

R v Booth [2004] ACTCA 21

R v Haigh (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 14 of 2013, 9 August 2013)

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Relph [2002] ACTCA 6

R v Sutherland (Unreported, Australian Capital Territory Supreme Court, Penfold J, SCC 198 of 2008, 22 March 2013)

R v Wrigley [2015] ACTSC 114

1. Jordan David Miles, the accused, has pleaded guilty to one charge of arson and two charges of damaging property. The offences, however, arose out of a quite dramatic and serious incident. Some aspects of the incident, however, are not the subject of charges, and it is important that the sentence that I must impose reflects the actual offences to which Mr Miles has pleaded guilty, including any aggravating and mitigating factors, but not other offences that might have been charged or other circumstances that are associated with the incident but are not, in law, part of the charges. That is to say, he is not being sentenced for the whole incident.

2. Arson is an offence contrary to s 404(1) of the Criminal Code 2002 (ACT), for which the legislature provides a maximum penalty of 1500 penalty units (that is a fine of $225,000) and imprisonment for 15 years.

3. Damaging property is an offence contrary to s 403 of the Criminal Code and attracts a maximum penalty of 1000 penalty units (that is a fine of $150,000) and imprisonment for 10 years.

4. These are serious offences judged by the yardstick of the maximum penalties, an important consideration mandated by the High Court in cases such as Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31].

5. Police attended an incident at residential premises in Kambah on 27 October 2015 and later arrested Mr Miles. He was charged with the offences mentioned above and appeared in the Magistrates Court later that day. The proceedings were adjourned to 17 November 2015. Mr Miles was remanded in custody.

6. On the adjourned date, Mr Miles pleaded guilty to each of the charges and was committed to this Court for sentence.

7. The matter was listed for sentence before me on 6 April 2016 and Mr Miles adhered to his pleas.

8. An Agreed Statement of Facts was tendered and admitted. From that Statement, I make the following findings.

9. Mr Miles lived at the Kambah premises with his parents. On 26 October 2015, he had been drinking alcohol and got into a verbal argument with his parents in their bedroom about an eightyear-old incident. The argument became physical and Mr Miles produced two knives and wrestled with his father. He left the bedroom and drove away.

10. His mother contacted police, who attended briefly, and, when neither his mother nor his father could provide a statement, the police left, but advised that they should be contacted if Mr Miles should return. These events are not the subject of any charges.

11. Mr Miles returned soon after midnight and his mother again contacted police, who arrived shortly after. Mr Miles' parents then left the premises.

12. When police arrived, they knocked on the front door, but Mr Miles, who was highly agitated and aggressive, refused to open the door and was very abusive to police. He was, at the time, holding a cordless drill and a kitchen knife.

13. He became more aggressive and attempted to barricade himself in the house by placing household items against the door, saying things like he was "in for the long haul" and that "TRG [by which I assume he meant a Tactical Response Group] would have to come in and get [him]."

14. The area outside the residence was then cordoned off to ensure Mr Miles was effectively contained. Police were aware from the parents of Mr Miles that there were no other persons in the house.

15. Police negotiated with Mr Miles, but to no effect, and he continued to be aggressive, including banging on the front door and windows and swearing at police.

16. Mr Miles then doused some areas of the house with liquid from a bottle with a "flammable liquid" symbol clearly displayed on it.

17. He continued to engage with police but remained aggressive and abusive and threatened to set himself and the residence alight.

18. He then smashed the front window with the cordless drill. This was the first charge of damaging property. Broken glass landed near police but no charge of assault has been laid. No charges have been laid arising out of his aggressive and abusive behaviour, including swearing.

19. He continued to douse inner walls with what police could smell was flammable liquid, an accelerant, and continued to barricade himself in the premises and douse the items he was using as the barricade.

20. At some stage, he broke a rear window, which constituted the second charge of damaging property.

21. Because of the nature of the incident and the deteriorating behaviour of Mr Miles, police called an AFP Specialist Response Group and police negotiators. Mr Miles continued to act aggressively, throwing things at the negotiators and threatening again to set the residence and himself alight. No charges of assault have been laid arising out of this behaviour.

22. While negotiators were attempting to engage Mr Miles, he lit a fire in the front room next to the door. This was the offence of arson with which he was charged. Police were required to smash the window in order to extinguish the fire safely.

23. Mr Miles, however, started other fires in the residence and the fire seemed to take hold. The Specialist Response Group members were able to break into the rear of the residence and gain entry, and Mr Miles was extracted from the heavily smoke-filled residence.

24. Mr Miles was arrested. He had a laceration on his right hand and was taken to the Canberra Hospital, but refused treatment, and was taken to the watchhouse and then to court.

25. The parents of Mr Miles did not give him permission to damage the property.

26. I have little information about the extent of the damage caused by the fire. I had pictures of the house interior which showed fire and smoke damage in the dining room. It was not easy to see the damage, but it was clear that there was some significant damage. An air conditioning unit suffered considerable damage, which showed the intensity of the heat generated by the fire.

27. It was agreed by both counsel that the damage to the windows would be likely to be no more than $1000, or possibly less.

28. Arson is a serious offence, as the Court of Appeal has indicated. See R v Relph [2002] ACTCA 6 at [26]; and R v Booth [2004] ACTCA 21 at [26].

29. In R v Wrigley [2015] ACTSC 114 at [34], I summarised the principles after a review of the authorities relevant to the following:

a. the real gravity of the offence lies in the intent with which it is committed;

b. the perpetrator is often difficult to detect, which generally requires a deterrent sentence;

c. nevertheless a custodial penalty is not inevitable;

d. the amount of damage is relevant but not necessarily a measure of the offender's culpability;

f. mental health may result in general deterrence playing a much less significant role, as in the case of other offences, but does not necessarily make general deterrence inappropriate in all cases;

g. aggravating circumstances include that the offence was committed at night, the use of an accelerant, the commission of the offence for financial gain, revenge or the destruction of evidence, the potential risk of injury to life or serious harm to persons, including firefighters and the risk of spread of the fire; and

h. the degree of premeditation and the deliberate nature of the offence is important.

30. In this case, Mr Miles said that he committed the offence because he was angry at police as a result of a lack of progress by them in an investigation of a home invasion he had suffered early in the year. On the day before the offences, he had been informed that no further action was being taken on the incident. He became very angry and, with the alcohol, he became aggressive, much of which later became directed at the police, whom he felt had let him down.

31. Indeed, it was submitted that Mr Miles was actually intending to draw attention to the injustice he felt had he suffered by burning himself to death.

32. Thus, I accept that the intention of Mr Miles was to harm himself rather than to burn the house down, though that may have been the consequence and is part of the seriousness of the offence.

33. Accordingly, there seems to have been some limited premeditation, though not much preparation, and the offence was fairly simplistically carried out. The offence was rather haphazardly committed. Nevertheless, he did use an accelerant, which I was told, without challenge, was methylated spirits, but there was no evidence to show that it had been obtained especially by Mr Miles rather than being present in the house, as might well be the found there and then used by him. I was also told that he used no more than about 500 millilitres.

34. Nevertheless, the intensity of the fire which damaged the air-conditioning unit and the extent of smoke in the house when Mr Miles was extracted shows that it was potentially a serious fire which posed a real risk for police and fire fighters. As indicated above, evidence about the damage is unclear, but it appears that the fire damage was limited to one room and, although the intensity seems great, there was little suggestion that it actually spread. It was not, however, a case of merely burning the curtains.

35. It is important, however, that the evidence of the extent of the damage and the evidence of the potential threat of spread, or a risk to other persons, be actually adduced and clear. Under its duty to assist the court, the Crown seems to me to have a duty to provide relevant evidence from which an important factor in such cases as this can be determined.

36. I am prepared to find that the damage to the property and its contents was not limited to the dining room but was substantially in that room. I could not, of course, attempt to quantify it, and I will not do so.

37. The value of the damage done is a potentially aggravating feature.

38. Few of the other aggravating features of such offences were present. The evidence about the extent of the fire and the likely risk to police and fire fighters was sketchy, although it did appear from the evidence about what they found when they entered to extract Mr Miles that there was at least significant smoke which, of course, in itself is a risk factor. Aggravating features must, of course, be proved by the Crown and proved beyond reasonable doubt. See R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [25]- [27] and 293; [57].

39. The offences of damaging property are also serious, though less serious if judged by the respective maximum penalties. A significant relevant factor is the circumstance in which it is committed, but also relevant is the amount of damage caused. See Halden (1983) 9 A Crim R 30 at 36; approved in Director of Public Prosecutions (Vic) v Derby [2007] VSCA 92; (2007) 171 A Crim R 302 at 308; [23].

40. Here the damage appears to have been caused by Mr Miles lashing out in his anger and frustration, rather than intending to vandalise the premises. The damage was, however, reckless and unnecessary. The value of the damage done was not great.

41. Although not strictly part of the arson offence, the two offences of damaging property arose out of the same incident and, as Ms A Jamieson-Williams, who appeared for the Crown, quite properly submitted, there should be a considerable degree of concurrency in the sentences.

42. Mr Miles is now 37. He was born in Canberra and lived here for most of his life, apart from a period in Queensland in 2011. He has a sister with whom he appears to have good relations.

43. He had a normal and happy childhood, though he describes his relationship with his father as "complicated". Nevertheless, both parents have visited him while he has been on remand at the Alexander Maconochie Centre (the AMC).

44. He was educated in Canberra and completed Year 12 before beginning a degree in Information Technology, which he abandoned after about 18 months.

45. He has worked in a variety of jobs in information technology, as a truck driver, in construction, in hospitality and as a factory worker. His longest period of employment was for a Canberra social club where he commenced as a bar attendant and was promoted to supervisor. He was employed prior to being arrested and refused bail, working about 40 to 50 hours a week in general construction and maintenance.

46. Mr Miles is currently in a relationship of about 18 months duration. He describes it positively, but his partner has three children who are, he says, "a bit off the rails". His partner has visited him every few weeks while he has been in custody.

47. Prior to the offending, Mr Miles was living with his parents, but he is, unsurprisingly, not welcome there at the moment. His sister is willing to accommodate him, but only if he abides by some rules, particularly prohibiting alcohol and illicit drug use.

48. Mr Miles began drinking alcohol in his teenage years and, before his arrest, would drink full-strength beer and spirits on most days, consuming about five standard drinks on each occasion. He would, however, drink to heavy intoxication about once a month.

49. He has experimented with heroin, cocaine, ecstasy and amphetamines in his 20's and 30's but now only uses cannabis, which he had been using daily prior to his arrest. He has acknowledged the need for treatment or counselling for drug and alcohol abuse and he expresses a willingness to engage.

50. He has experienced some agitation and anxiety, particularly related to his anger and lack of empathy with others, and has been prescribed medication while in the AMC, where he has received ongoing support from a psychiatrist.

51. I had a forensic psychiatric report. Mr Miles first had contact with Mental Health Services five years ago, but the information on that is vague. He also saw a counsellor in Queensland for anger management. He had two sessions of counselling there.

52. He was assessed by Dr Graham George, consultant psychiatrist, in 2010. He was said to be suffering from no diagnosable ongoing psychiatric disorder.

53. The recent report was to the same effect - Mr Miles does not have a current mental illness of significance. He has, however, a "certain inflexible personality style and difficulties in managing his anger". He has had 10 significant head injuries, including loss of consciousness, and a radiological report of a neuroimaging of his brain showed some abnormalities which may be related to his irritability and aggressive outbursts. It is reported that he may benefit from neuropsychological testing to further investigate his cognitive functioning but that has not yet been carried out.

54. The report indicated that a custodial sentence would elevate Mr Miles' risk of suicide. It also recommended mandated drug and alcohol counselling. Mr Miles has no other health issues.

55. Mr Miles has a short criminal history, and the current offences are by far the most serious. He has been convicted of five offences, including a drink driving offence and a negligent driving offence.

56. The other three offences, which are perhaps unsurprising in the light of his described mental health, are offences of the use of a carriage service to menace or threaten. The victim of those offences was his father.

57. It appears that this may have led to him experiencing difficulties in the AMC. He has been assaulted there, which his inflexibility, anger and lack of empathy could well cause. It may be concluded that he is likely to find prison harder than other detainees.

58. He has expressed remorse and his counsel expressed for him an apology for his offending.

59. In addition to R v Wrigley, I was referred to a number of decisions. These included Porter v The Queen [2008] NSWCCA 145, where Mr Porter, 19 years old, started a fire in the curtains of a shop which he had entered as a trespasser and from which he stole some coins. The fire rapidly spread to the shop and the next-door shop, as well as damaging a photographic studio and rental store upstairs. The ground floor shops were totally destroyed. Mr Parker had a limited, but worrying, prior record. He pleaded guilty. He was sentenced for the arson to imprisonment for four years and nine months, with a non parole period of two years and six months.

60. In R v Sutherland (Unreported, Australian Capital Territory Supreme Court, Penfold J, SCC 198 of 2008, 22 March 2013), Mr Sutherland, after drinking a lot of alcohol, smashed a window in a community centre and set fire to the curtains. The fire was quickly extinguished and no significant damage was done. He pleaded guilty and it was treated as an early plea. Mr Sutherland was 26 years old with a criminal record, including for the lighting of fires. He had an intellectual disability which reduced the need for general deterrence. He was sentenced for the arson to 12 months imprisonment which, apart from a significant period of presentence custody, was suspended.

61. The third decision was R v Haigh (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 14 of 2013, 9 August 2013). In that case, Mr Haigh, who lived in a block of flats, became angry when his flat was the subject of a burglary. He threatened a number of other residents that he would burn down his flat and then proceeded to set it alight. The fire caused damage estimated at $100,000 and put other residents at risk. Mr Haigh, who was 41, suffered from depression with symptoms typical of schizophrenia and polysubstance abuse. He pleaded guilty. He has been admitted to psychiatric institutions. He had a long criminal history and was sentenced to three years imprisonment.

62. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act (2005) (ACT). In this case, general deterrence and specific deterrence play an important part. While rehabilitation is not to be ignored, it can be accommodated within an appropriately deterrent sentence.

63. It is also important, in this case, to hold Mr Miles accountable for his actions. If his response to challenging situations is to move away from the anger and violence that he has shown in the past, then he must accept responsibility for his actions. I note that Mr Miles is assessed as at a medium risk of reoffending.

64. I take into account the plea of guilty entered by Mr Miles. It was accepted by the Crown that it was an early plea and entitles Mr Miles to a real and significant discount.

65. I have regard to the seriousness of the offences. I have described them above. They were not the most serious versions of the offence, but the arson had aggravating features which must be reflected in the sentence.

66. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act, which I am required to consider. So far as I know them, they are set out earlier in these reasons.

67. Mr Miles has some prospect of rehabilitation. Although he has agreed to undertake treatment and counselling for drug and alcohol abuse and anger management and has made appropriate inquiries about such programs, his commitment has yet to be shown. His inquiries about some programs are to his credit. He has the support of his parents, though that is obviously cautious, given their experience of this incident.

68. He has shown some insight and acknowledges that he must take steps to effect his reform and be proactive about it and that is a positive factor towards reform.

69. I take into account his remorse for his offending behaviour and the insight he is said to have shown.

70. I note that Mr Miles has been assessed as not suitable for a community service work condition to a Good Behaviour Order.

71. I consider that, in all the circumstances, only a sentence of imprisonment is appropriate for the offences.

72. As there are multiple offences for which sentence is to be imposed, I have carefully considered the length of each sentence to ensure that, when there are overlapping common elements between any of the offences, Mr Miles is not punished twice, though that does not appear particularly relevant here. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise, as does appear here, or otherwise.

73. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Miles' goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

1. I convict you of arson on 27 October 2015 (CC 15/10249).

2. I sentence you to 18 months imprisonment to commence on 27 October 2015. Had you not pleaded guilty I would have sentenced you to 27 months imprisonment.

3. I convict you of damaging property, namely, the front window of the Kambah premises on 27 October 2015 (CC 15/10250).

4. I sentence you to three months imprisonment to commence on 26 February 2017. That is to be cumulative as to one month on the sentence for arson. Had you not pleaded guilty I would have sentenced you to five months imprisonment.

5. I convict you of damaging property, namely, the rear window of the Kambah premises on 27 October 2015 (CC 15/10251).

6. I sentence you to three months imprisonment to commence on 26 February 2015. That is to be concurrent with the sentence for damaging the front window of the premises. Had you not pleaded guilty I would have sentenced you to five months imprisonment.

8. I set a non parole period of 10 months to commence on 27 October 2015 and end on 26 August 2016.

9. I recommend that, in granting you parole, the Sentence Administration Board address, in particular, the need for treatment and counselling for drug and alcohol abuse and anger management.

I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.