R v Powell

Objective seriousness

1. In any sentencing exercise a judge is required to; identify all the factors that are relevant to the sentence, to discuss their significance and then make a value judgment as to what the appropriate sentence is, given all the factors relevant to the case. A sentence must be proportionate to what was done. An assessment of objective seriousness of the offence is essential in setting the parameters of an appropriate sentencing outcome.
2. Factors relevant to my assessing the objective seriousness of the present offence were carefully set out in both written submissions. There is no difference between them as to matters of principle. There are of course differences in the suggestions as to the emphasis I place on different factors relating to assessment of objective seriousness and assessing the offender and his prospects.
3. So far as objective seriousness of the matter is concerned, there is evidence the offender was intoxicated with illicit drugs. That provides him with no excuse. At best, it can explain the impulsivity of his actions.
4. A motive was proffered through a psychologist. I cannot accept what was said in that report, which was unsworn and untested, but whatever occurred, it is evident that his motive was revenge for a trivial slight.
5. There was some premeditation involved, although the offending demonstrated no sophistication. He did ensure no-one was home.
6. The extent of the damage caused is particularly relevant. It involved the effective total loss of the house, so far as the owner was concerned, and a home and its contents, so far as the tenants were concerned. They lost all their possessions. As the Victim Impact Statement makes clear, this loss was substantial. There was also an obvious accompanying personal stress to all concerned.
7. Crimes such as this carry with them a potential for other harms. That is, the risk of injury to people, particularly those called to fight the fire. I note that the offender himself says that he was injured during the fire and had to seek hospital treatment. The potential risk also includes potential for damage to other premises from the possible spread of the fire. It cannot be ignored that this house was in a high-density residential area, close to other homes and shops. Although I am sure the offender did not consider the consequences, the offence was committed with disregard for public safety. I note it is not suggested he had the mental element necessary for a more serious offence.
8. It is often said, correctly, that these offences are both easy to commit and difficult to detect. But here it would have been obvious that CCTV was present, making his detection almost inevitable. CCTV did not deter Powell.
9. This was a significant and serious crime. A custodial sentence of some length is required. To put it simply, arson is an extremely serious and dangerous crime given its usual, and here, obvious destructive consequences. It is a crime easy to commit. Accordingly, in any sentencing exercise emphasis must be given to general deterrence: Porter v R [2008] NSWCCA 145. There are reasons here for moderation of that principle, a matter to which I will soon return.

Victim impact

1. It is important to note the impact of the offence on the tenants. The absence of a Victim Impact Statement from the owner does not mean that it did not have an impact on him. In his statement to the Court, the tenant notes: "I lost nearly all of my possessions. All of my furniture, tools, important personal documents and worst of all was the loss of all my children's belongings and personal effects."
2. He estimates the value at over $50,000, but then goes on to say: "Things like handmade blankets and clothes from my grandparents cannot be replaced. As a result of this horrendous experience I now suffer C-PTSD, hypertension, depression, anxiety and a severe fear of fire. These criminals have no regard for anyone but themselves and the way they have been observed bragging about it afterwards only proves they have no remorse and do not see the wrongdoing in their actions."
3. He then expresses his hope that they be punished to the full extent the law allows. He notes he would like to seek compensation.
4. The Victim Impact Statement serves the very practical purpose of drawing to the offender's, the Court's, and the community's attention the personal, economic, and psychological harm caused by this crime.

Other relevant factors

1. Powell was on a Community Correction Order at the time. He made a promise to the Local Court to be of good behaviour, he did not keep that promise, a matter that aggravates the sentence I must impose.
2. He has an extensive criminal history. It must be taken into account. He first went into juvenile detention when he was 13 years old. Since he became an adult, only four of the last 19 years have been spent in the community. The evidence shows a cycle of, drug abuse, crime and gaol that has not yet been broken. His record contains some matters involving very serious offending against members of the community. He has regularly been before the courts. Until the commission of these matters, it would appear that his criminal activity had reduced a little and attempts were being made, by giving him Community Correction Orders, to keep him out of gaol and try and break the cycle. Those attempts failed as he was still using illicit drugs and had still not in any way learnt how to lead a normal life in the community.
3. His criminal history is relevant to determining the proper sentence. It indicates, sadly, that this offence is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While his prior history cannot result in a sentence which is disproportionate to the gravity of the offence, a more severe penalty is warranted here because additional focus has to be given, not just on retribution but also, although it can be moderated, deterrence and the protection of society.
4. There was an expression of regret to one of the psychologists who prepared a report, Ms North. But regret is not remorse. There is some evidence of insight into the reasons the offender behaves as he did, but again, that is not remorse. There is certainly no offer of compensation. That may depend upon whether, and how, any future legal action the victim takes pans out. That is not a matter for me to determine. Certainly, no offer of compensation was or could be made. That does not aggravate any sentence that can be imposed, but it sometimes is a mitigating factor.
5. He was arrested on 15 August 2023, might have been 14 August, it is not quite clear. He served a Local Court sentence which was dated from the 14th, the non-parole period of which expired on 13 January. There must be some independent punishment for that Local Court matter. I propose to start this sentence on 14 November 2023.

The case for the offender

1. The offender did not give evidence, but two comprehensive reports, one from Ms North, a forensic psychologist, and one from Professor Michael Robertson, a consultant psychiatrist, were before the Court.
2. Professor Robertson summarises the offender's background. Powell was born in 1994 in Australia to Polish and New Zealand parents. He has seven children. He has some contact with his children. He has rarely worked in the community. He has been affiliated with criminal gangs for periods, but that has reduced as he has gotten older. He spent an extensive part of his childhood in juvenile detention and, since becoming an adult, has spent considerable time in gaol.
3. His mother left the family home when he was young and there is evidence of him suffering because, as he sees it, he was abandoned by her. He now has no relationship with her. His father was exceptionally strict and often violent. He attended local schools but did not progress his education beyond Year 9. His offending behaviour began when he was 12.
4. He is a large, muscular man and has abused anabolic steroids since he was 12. He has used various other drugs since that age, before he was old enough to make rational choices.
5. There is a history of being sexually assaulted at the age of 14 while in juvenile detention. He was being regularly propositioned for sexual favours while in juvenile detention to which he responded with violence.
6. Professor Robertson notes he presents with Complex Post-Traumatic Stress Disorder comorbid with a Substance Use Disorder. The professor also notes an underlying Personality Disorder with prominent antisocial and narcissistic traits related to abandonment and violent abuse. He also notes there is "clearly post-traumatic derangement of this personality evolution" and his "problematic trajectory was severely and adversely affected by multiple instances of sexual and physical abuse in the Juvenile Justice system": Professor Roberston's report, p 3.
7. Professor Robertson, at page 3 of his report, details what he calls the offender's "problematic trajectory", which involves abuse of stimulant drugs and violent offending. As these occurred early in his life, they are likely the "manifestation of the psychopathological process that would evolve to his personality disorder".
8. Ms North states in her report that he said he was burnt in the incident. He put forward a reason to her for why he set the fire. But, as I have said, I have no regard to it other than noting that, whatever the real reason, it appeared trivial.
9. Ms North notes, at pars 17 and 18, "early experiences had led Mr Powell to experiencing difficulties in regulating his emotions from a young age", with subsequent experiences reinforcing his antisocial behaviours. These, she said, were "exacerbated by the experience of sexual and physical abuse in juvenile custody".
10. Ms North believes he has suffered from, and continues to struggle with, Post-Traumatic Stress Disorder. His condition, she says at par 27, is "suggestive of Cluster B personality traits". She notes other criminogenic risk factors include his substance abuse, currently untreated, institutionalisation and negative peer associations.
11. On a positive note, she says, at par 29, "Powell recognised his drug use issues and antisocial peer associations to be his primary criminogenic risk factors". She states he has plans to relocate and engage in the Buvidal drug repalcement program.
12. In addition to his Post-Traumatic Stress Disorder, Ms North assesses the offender as having a Personality Disorder with mixed personality features, an Opioid Use Disorder, a Stimulant Use Disorder and a Sedative, Hypnotic Use Disorder.
13. A mental illness, and here, multiple mental problems can result in amelioration of the offender's moral culpability and a consequent reduction of the need to denounce the crime. It can result in the offender being an inappropriate vehicle for general deterrence or, as here, a reduction in the need for a sentence designed or focused on deterring others. It can, as here, mean that the burden associated with a custodial sentence may be greater than those who do not have those underlying conditions.
14. But conversely, a court has to also note that a person's mental illness can mean they present as more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with certain personality disorders there may be particular need to give consideration to the protection of the community by removal of that person from it.
15. Every sentencing exercise requires a determination of the moral culpability of the offender. Matters in their background can, and should, operate to reduce sentence. A person with a background such as Powell, should not be treated in the same way as a person who did not have the significant disadvantages that he suffered.
16. Relevant paths to the reduction of an offender's moral culpability here include:

• The effects of childhood deprivation and abuse: Bugmy v The Queen (2013) 249 CLR 571;
• Childhood trauma, such as being the victim of sexual assault and physical abuse: Nasrallah v R [2021] NSWCCA 207;
• The impact of imprisonment: R v Verdins [2007] VSCA 102 at [32], that includes time in juvenile detention and adult gaols, both of which are intrinsically violent environments; and
• Mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

1. Often these matters are interrelated, sometimes as here, inextricably so. As the plurality in the High Court acknowledged, the pervasive effect of deprivation is not confined to the commission of a single offence: Bugmy.
2. I do not devalue the impact of the particular traumatic events detailed in the reports tendered. An offender's background is always relevant, and the judge must give proper effect to all mitigatory factors: Nasrallah v R (Bell J).
3. It is now a well-known fact that the victims of child sexual assault very frequently suffer long-term and serious psychological consequences. This is borne out by the research cited in the reports tendered and attached to the report of Associate Professor Robertson.
4. Where a person's childhood and adolescence has been affected by disadvantage, trauma and other issues this can, and here obviously did have, an inhibitory effect on the development of Powell's prosocial values. He failed to gain them or appreciate them. They had an impact on his acquisition of a moral compass. They had an impact on his capacity to make behavioural decisions and his consequential thinking. The evidence here showed his background impacted upon his "capacity to mature and learn from experience": Bugmy at [43].
5. As Associate Professor Robertson notes at par 35, "there is a strong causal relationship between childhood abuse and problematic drug use and psychiatric disorder". This is noted, the "younger age at the time of sexual victimisation", here 14. He notes that: "The repetitive and traumatic experiences described … is consistent …. with aberrant development of the central nervous system … prominence of psychological disassociation and attachment/interpersonal difficulties … more appropriately categorised as 'Chronic-Post-Traumatic Stress Disorder', a term often used interchangeably with Cluster B Personality Disorders": Robertson's report at par 36.
6. That said, obviously childhood experience cannot excuse offending conduct, particularly a deliberate offence such as the one for sentence here, but it is a matter that must be taken into account: Nasrallah at [12]. Judges have to be careful not to assume that, and the public must understand that abuse of the kind set out in the reports does not automatically lead to significant reductions in sentence. Every matter, every offence and every offender must be determined individually.

Special circumstances

1. Ms North makes the following recommendations at pars 31 and 32; that Powell engage in opioid maintenance programs, that he engage in substance abuse programs, such as EQUIPS, that he be referred to a psychologist to deal with his unresolved trauma issues and that he be supervised for as long as possible in the community. He requires practical supports with accommodation and employment, if possible, through a community restorative centre. A copy of this report should go with the warrant to Community Corrections as any release to parole will be subject to a determination by the State Parole Authority.
2. The evidence relating to the need to avoid further institutionalisation, the offender's need for a treatment plan, noted by Ms North, his need to get help adjusting to normal community life, will provide a basis for a finding of special circumstances. However, in so finding, I am mindful of the requirement the minimum period he must spend in prison must properly reflect the seriousness or gravity of this offence and the purposes of sentencing, to which I will soon refer: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Submissions

1. I have referred already to the helpful submissions of Mr Booker and Mr Loosley and the difference in emphasis between them. Mr Booker asked for my focus on the long-term benefit to the community of rehabilitation. He asked that I not "throw away the key". Mr Loosley does not submit that a sentence which effectively places the offender in gaol for as long as the law allows is required, but he very carefully sets out reasons why the Court must be guarded about the offender's prospects for the future. That concern is well justified on the material before me. He also submits that the seriousness of the offending and the impact on the victims require a custodial sentence of some length.

Synthesis

1. Synthesising all these matters, as the matters I have referred to above make clear, a deprived background, mental illness and other factors that reduce moral culpability do not always lead to an automatic or logical consequence of a reduction in sentence. There is always a place for the protection of the public in the assessment of a just and proportionate sentence. That is quite a distinct concept from preventative detention, which is not allowed: Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at [476]; R v Windle [2012] NSWCCA 222 at [41]-[50].
2. Community protection can be achieved by the removal of a person from the community, but Powell must be returned to the community and hopefully he can be returned with more prospects than when he went in. The purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) must be considered, as should the common law which requires; protection of society, deterrence of the offender, and of others who might be tempted to offend, retribution and reform: Veen.
3. A proper sentence marks the Court's view of the seriousness of the crime and lets others know the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21; R v Windle.
4. Here, a direct comparison cannot be made equating time in custody with impact on victims and the loss of property. The Court must take into account all material facts, some aggravate, some mitigate the sentence. There is no golden rule: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [65].
5. Giving weight to the conflicting purposes of sentencing is what makes the exercise of a sentencing discretion so difficult, complex, even intricate as Gleeson CJ, remarked in Engert v R (1995) 84 A Crim R 67 and Veen at [476]. On one hand, a person's background and the need to take into account their lesser moral culpability means general deterrence of others may be of lesser importance, but this same background, particularly where the problems are, as they appear to be here, entrenched, pervasive and associated with serious crime, can mean the protection of society by removal must be given some weight when I come to determine the length of the sentence and the time that must be spent before eligibility for parole can be allowed: Engert at [68].
6. Sadly, despite Powell's professed insight, his prospects still seem bleak. He will require considerable help and he must act on that help. Without it, further offending on release seems likely.
7. There should be some independent punishment, as I said, for the Local Court matter. The sentence will be reduced by 25% to reflect the utilitarian value of the early plea. There will be a finding of special circumstances for the reasons I have outlined and to reflect the fact there is some accumulation of this sentence. A degree of leniency is required, but there still must be a further period of imprisonment.

Orders

1. The orders of the Court are that there will be a sentence in this matter of 4 years and 1 month imprisonment. The non-parole period will be 2 years and 8 months' imprisonment. It will date from 14 November 2023. He will be eligible for consideration for release to parole on 13 July 2026. The parole period of 1 year and 5 months will commence on 14 July 2026. The sentence will expire on 13 December 2027.
2. To reiterate: the sentence is 4 years, 1 month. My starting point was 5-and-a-half years prior to the discount for the plea of guilty; commence 14 November 2023; eligible for parole 13 July 2026; sentence expires 13 December 2027.

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