R v Raeyers [2014] ACTSC 134

1. Nicholas Raeyers is a sentenced prisoner. On 6 November 2013, he was sentenced for two offences of possessing a knife without reasonable excuse, one offence of causing harm to a public official, two offences of possessing an illicit drug, cannabis, and two offences of unlawful possession of stolen property. Although each sentence imposed for these offences was relatively short, they were made entirely cumulative, resulting in a term of thirteen months' imprisonment from 25 June 2013; a non-parole period was set to expire on 24 January 2014.

2. Mr Raeyers has now pleaded guilty to a charge of arson committed on 28 July 2013. Arson is an offence against s 404(1) of the Criminal Code 2002 (ACT) which renders Mr Raeyers liable to a maximum penalty of 1,500 penalty units (that is a fine of $155,000) or imprisonment for fifteen years, or both. It is, accordingly, to be regarded as a very serious offence although, of course, the precise circumstances will always be relevant. See Gilson v The Queen [1991] HCA 24; (1991) 172 CLR 353 at 364.

3. The circumstances are that the offence occurred on 28 July 2013 when Mr Raeyers was in custody. He was located, at the time, in the Management Unit of the Alexander Maconochie Centre (AMC). This was, of course, relatively shortly after he was first incarcerated. He said that he had become frustrated because he was seeking some mental health support for the depression he was suffering as a result of his incarceration. It appears that he may have behaved abusively and was sent to the Management Unit at the AMC. The Management Unit is used for detainees subject to discipline. He agreed that he had behaved stupidly and inappropriately.

4. At some stage after he had been locked into the cell, a Corrections Officer had a conversation with Mr Raeyers and he became upset and highly agitated. He went into the exercise yard where he slammed the door between the cell and the exercise yard a number of times.

5. He told me that he then buzzed for assistance a number of times, but no one answered his call. He proceeded to wet amounts of toilet paper with which he covered the camera within the cell and appeared to calm down. He said that when he had previously done that, an officer would attend shortly afterwards and that is what he wanted. He denied that he was intending to prevent the camera from capturing him setting fire to the bedding in his cell as he subsequently did.

6. At about 3:08 pm, he lit clothing and bedding within the cell. Black smoke coming from the cell alerted Corrections Officers and they found the cell filled with black smoke and flames on the bedding. Mr Raeyers was taken from the cell, obviously to some extent smoke affected and lay on the floor next to the rear door to breathe clean air. The fire was then extinguished.

7. Mr Raeyers completed his discipline and was then subject to segregation for twenty-eight days because of this behaviour. This was not discipline strictly so-called, for that would also have resulted in a loss of privileges which did not happen, but it was a form of deprivation and that, it seems to me, amounted to extra-curial punishment. No contrary submission was made to me.

8. Mr Raeyers is now twenty-nine, the only child of his parents, but he has a step-sister and a step-brother. He has no memory of his father, however. He and his mother moved to Cairns when he was two and, when he was eight, to Canberra.

9. His mother was unable to care properly for him due to her abuse of alcohol. As a result, Mr Raeyers spent time in foster care but, though he did not regard it as a bad part of his life, he found the multiple placements triggered instability and had a prejudicial effect on his education. After about five years, he returned to his mother's care, for she had moderated her use of alcohol, and he has lived with her since then.

10. Mr Raeyers was a good student at primary school, but in secondary school exhibited behavioural problems leading to his eventual suspension and to him leaving school at Year 9.

11. He has, since leaving school, had only two paid employment positions, each for about twelve months, and long periods of unemployment. He is presently receiving income support from Centrelink when he is not in custody. He has no savings or assets.

12. Mr Raeyers has a history of poly-substance abuse, starting with cannabis use at age fifteen and since then experimenting with MDMA (ecstasy), heroin, cannabis and methylamphetamine (ice). His drug use became problematic and his criminal record suggests it has caused him to commit crimes. His only treatment has been in the form of pharmacotherapy. He has been prescribed methadone, which he began taking in 2007. He started reducing his dosage in 2012 and, about four months ago, ceased taking methadone completely.

13. Mr Raeyers is in good physical health. He says that, while in custody, he experiences mental problems and this requires medication. He has been medicated while at the AMC after assessment by a psychiatrist. Not long after he committed this offence, he was prescribed Largactil (a major tranquiliser often used as a short-term treatment of agitation and behavioural disturbances) and Zyprexa (a mood stabilising agent though apparently used to treat his depression). He says his mood has much stabilised.

14. A report from Dr Graeme George, Consultant Psychiatrist, was made available to me. It reported on his examination of Mr Raeyers at the AMC on 1 October 2013. Dr George expressed the opinion that Mr Raeyers had a predominantly anti-social personality disorder. He also noted his chronic substance abuse problems. He noted his medication as I have described above.

15. Mr Raeyers explained his offence to Dr George, who considered that it may have been caused by a hypomanic episode.

16. Dr George did not consider that he had sufficient symptoms, however, to diagnose a bipolar disorder. He said he would not diagnose him with a mental illness.

17. Mr Raeyers has an absolutely shocking criminal record. He has convictions for one hundred and sixty-one offences imposed in twenty-seven court appearances. While sixty-nine of those offences are traffic offences, they do include some serious offences including dangerous driving, culpable driving causing grievous bodily harm and reckless driving. He has many offences for being unlicensed or driving whilst disqualified and potentially dangerous offences such as not stopping for a red light, speeding and the like. He has offences for breaching his bail and escaping from lawful custody. Worryingly, he has thirteen convictions for possessing a knife or other offensive weapon and twelve convictions for offences of violence.

18. It is of concern that the most recent offences committed by Mr Raeyers include the possession of a knife. To be fair, he said that, on this occasion, he was carrying a knife because he was fearful for his safety. He had been attacked in November 2012 and considered that he needed a knife to protect himself from further attack. I had a copy of the discharge summary from the Emergency Department of The Canberra Hospital for the occasion when he was attacked and which showed he had suffered multiple open wounds to the head which he reported as having been caused by three people using a blunt object and a knife.

19. While I can understand his reasoning, I cannot and do not condone his response by carrying a knife.

20. He has one prior offence of arson, a very old offence but, in 2009, he did set fire to a shower screen in the AMC, for which he was disciplined. These do mean that the sentence I impose must have an element of specific deterrence in it.

21. It is not a pretty record. Of course, such a record is very relevant to sentencing. The approach to such a criminal history has been set out authoritatively by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465 at 477 where Mason CJ, Brennan, Dawson and Toohey JJ said

... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the incident offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the incident offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of 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 the offender and other offenders from committing further offences of a like kind.

22. I shall follow those principles and apply them. An analysis of Mr Raeyers' criminal record, however, shows that, before the offences committed in 2013 (on 16 January, 26 April and 28 July 2013), he had not committed any offences since 23 June 2009. Of course, for much of the time between 25 November 2009 and January 2013 he was in custody, having been sentenced in 2010 to a lengthy term of imprisonment backdated to November 2009.

23. Nevertheless, it does appear that he was at liberty for some periods of significance during 2011 and 2012 and, though he breached his parole during that time, it was not cancelled and he was relatively crime-free for this period. Indeed, he said to me that he performs best when under supervision in the community.

24. I had a letter from Mr Raeyers' mother who, unsurprisingly, expresses her love for her son. She indicated that he had family support which has helped him to commit to change his life. She pointed out that he had overcome his need for methadone which he has not been taking for several months. She felt that he had matured since his incarceration and learnt some valuable lessons and, apart from the serious incident for which I must now sentence him, said that he had not been in trouble for most of his incarceration. That, unfortunately, is not correct. She expressed pride in his efforts to steer a better and healthier life. She seemed realistic in acknowledging that things will be difficult for Mr Raeyers when he is released from custody.

25. I had two Pre-Sentence Reports for Mr Raeyers. Although broadly similar, there were some interesting differences. Neither author was asked any questions by counsel so the resolution of the differences is not easy.

26. In the more recent Report, it noted that ACT Corrective Services has had contact with Mr Raeyers since February 2003, since when he has been subject to incarceration and community based orders. It referred to his parole from 13 December 2011 until 26 September 2012 which, it noted, he had breached on two occasions, namely for failing to complete the Cognitive Self-Change Program and for using cannabis. I note that these breaches did not result in the Sentence Administration Board cancelling his parole. It also referred to the two earlier occasions on which Mr Raeyers was sentenced to Periodic Detention and noted that in both cases the orders were cancelled for breaches. It then opined that "[o]verall, Mr Raeyers' compliance with community based orders had been poor".

27. This is to be contrasted with the earlier Report for the proceedings in the Magistrates Court which stated

Service records indicate Mr Raeyers' compliance with community corrections during previous periods of supervision was considered satisfactory. He usually attends scheduled supervision appointments, and has complied with directions to address his criminogenic risks. It is noted however that Mr Raeyers has reoffended on previous episodes of community supervision.

28. It noted, however, that his behaviour in custody was "considerably different". Both listed a number of discipline matters whilst in the AMC. In fact, not including this offence, he has been subject to discipline on seven occasions since 24 July 2013.

29. I do note, however, that Mr Raeyers has, on this occasion, and despite his discipline infractions in custody, completed a number of programs, including the First Steps Alcohol and Other Drug Relapse Prevention Program and the Seasons for Growth Adult Program.

30. As I have noted above (at [1]), Mr Raeyers was eligible for parole on 24 January 2014. He was not granted parole at that stage; it appears he sought to attend residential drug rehabilitation but was not admitted to the facility he chose. The Sentence Administration Board considered an application for parole on 15 April 2014 and directed that he be released on parole on 22 April 2014. He would, until 24 July 2014, still be under sentence.

31. For reasons that are not entirely clear, Mr Raeyers, who was, of course, at the time in custody, was not brought before the Magistrates Court for this matter until a summons was issued on 11 December 2013. I do not understand why the matter could not have been dealt with by Magistrate Campbell on 6 November 2013. Not to do so until after his non-parole period had expired seems to me to be at least cruel.

32. He first appeared in the Magistrates Court on 13 January 2014 and did, on that day, enter a plea of guilty. That was, of course, at the very earliest opportunity. He was committed for sentence to this Court as was required for the offence.

33. As is to be expected, arson is an offence which covers a wide range of circumstances. See Director of Public Prosecutions v Perrone (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O'Brien, Gray JJ, 13 September 1989) at 4; R v Dowell (1952) 6 A Crim R 113 at 116; Ajax v The Queen [2006] NTCCA 12; (2006) 161 A Crim R 293 at 298.

34. In this case the fire caused damage to the cell which was completely unusable for several weeks. The bedding was destroyed by fire. The cleaning of the cell cost $2,173.60 and repairs and maintenance cost $3,245, a total of $5,418.60, a not inconsiderable sum. No compensation is being sought, the cost being borne by the taxpayer. It is, of course, quite unlikely that Mr Raeyers would be able to pay such compensation.

35. Generally, it has to be accepted that arson is a very serious crime, as noted in R v Booth [2004] ACTCA 21 at [26]. This is especially so where a building is set alight and there is a realistic prospect that life will be endangered. See Small [2008] EWCA Crim 3055; (1980) 2 Cr App R (S) 25 at 26. It is also said that it is often difficult to detect the offence, as noted in R v Dowell at 116. General deterrence will ordinarily be required. See R v James (1981) 27 SASR 348 at 351. Heavier sentences are particularly required where there is a danger to individuals in a dwelling or extremely heavy property damage. See R v Johnson [2007] QCA 249 at [21]- [27].

36. Nevertheless, in a proper case a non-custodial penalty may be appropriate as was accepted in Director of Public Prosecutions v Perrone at 5-6. Similarly, in R v McLean (2013) 118 SASR 280 the Court of Criminal Appeal of the Supreme Court of South Australia recently held that, in an appropriate case, it was adequate that the sentence of imprisonment for arson be suspended, though in that case there were special and particular circumstances, including a period of home detention.

37. Ms S Saikal, who ably represented the Crown, referred me to what had been said by the Supreme Court of the Northern Territory (Court of Criminal Appeal) in Ajax v The Queen at 299 where Mildren J, with whom Martin CJ and Thomas J agreed, set out relevant factors.

38. Ms Saikal submitted that a number of factors were relevant to the assessment of the seriousness of the offence. These included the amount of damage as well as the consequential loss of use of the cell, though I did not have any evidence of what actual problem that caused over and above the actual damage. I have noted the damage above (at [34]).

39. She submitted that other detainees were put at risk because of the fire. I found that a difficult factor to assess because of the limited amount of flammable material likely to be in a cell, particularly in the Management Unit. Ms T Warwick, who appeared for Mr Raeyers and put all that could be put for him, pointed out that there were no carpets, television or flammable bedding in the cell and the rooms were non-flammable.

40. Ms Saikal submitted that the fact that the offence was committed while in custody was an aggravating feature. She cited no authority and relied on no principle. I was initially not attracted to the proposition, but that may have been too hasty a view I formed. In R v Fyffe [2002] NSWSC 751 at [33], Barr J said

It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them.

41. This view was cited with approval by the New South Wales Court of Criminal Appeal in R v Hoskins [2004] NSWCCA 236 at [63].

42. Nevertheless, she submitted that the offence was at the lower end of objective seriousness.

43. I take into account the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).

44. Mr Raeyers pleaded guilty in the Magistrates Court at the earliest opportunity. He is entitled to a discount for that plea. While the prosecution case was strong, the plea clearly saved the administration of justice.

45. I take into account his subjective circumstances as I have set them out above.

46. I also take into account the objective seriousness of the offence and their nature and effect. This is, no doubt, a serious offence which deserves punishment, but it is by no means a very serious version of the offence, as noted above.

47. I note, also, that Mr Raeyers has already suffered for the offence. I accept the evidence of Mr A Johnston, Operations Manager of the AMC, that, while not formally punishment, the segregation had many similarities to punishment and arose out of the offending behaviour. It seems to me that twenty-eight days in segregation, usually only allowed out of his cell for one hour a day, is sufficiently serious to be taken into account in this way. See R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 410-1; [62].

48. I note, also, that the offence has not come before the courts for some time and is now being heard after he has been granted parole. No doubt the Sentence Administration Board was aware of this offence when making that decision.

49. So far as sentencing practice is concerned, Ms Warwick prepared and handed up a useful table of decisions relating to arson. It showed a range of sentences from a good behaviour order to three years imprisonment with a number of suspended sentences. I have regard to the sentences there set out and the circumstances of them. In circumstances such as this, it is difficult to address the question of pre-sentence custody. Given that Mr Raeyers' non-parole period ended on 24 January 2014 and the summons was returnable on 14 January 2014, it seems to me that the period from 13 January 2014 is a period in respect of which he has been "in custody in relation to the offence": s 63 of the Crimes (Sentencing) Act.

50. It seems to me that the offence is sufficiently serious that no penalty other than imprisonment is appropriate.

51. Ms Warwick submitted that there was an issue of totality in that, had Mr Raeyers been dealt with at the same time as Magistrate Campbell dealt with him for the offences for which he was in custody at the time of the offence because bail had been refused, the total sentence would not have been much longer than was then imposed.

52. She produced a table showing the history of Mr Raeyers' imprisonment. It showed that, over the last eight years and six months, he has been in custody for approximately five years and seven months. It showed that he was in custody for his twenty-sixth, twenty-seventh, twenty-eight and twenty-ninth birthdays. I am not certain that all this is particularly relevant. I note that Magistrate Campbell made each of the sentences she imposed wholly cumulative. There is no reason why the sentence for this offence would not have been wholly cumulative also, though the addition of an appropriate period may have rendered the whole sentence in totality excessive. I shall take this into account.

53. Ms Saikal submitted that I should not do so because there were no common elements between the offences for which Magistrate Campbell dealt with Mr Raeyers and this offence. She referred to Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. It does not seem to me that the principles set out in that case were the relevant ones. The relevant principles are set out in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 where, although the facts are quite different, the principles seem to me to apply and I will apply them.

54. There is one other matter of importance. By imposing a sentence of imprisonment, I appear to bring into play s 66 of the Sentencing Act. The fact that I impose a sentence of imprisonment will automatically cancel, under s 66(3), the present non-parole period. This appears to be so even though parole has been granted. Given that, I will have to set a new non-parole period under s 65 by virtue of s 66(2) of the Sentencing Act.

55. Mr Raeyers appears to survive best in the community under supervision. He has performed reasonably well during his last period of parole. Of course, a parole period can only extend for the duration of the period between the granting of parole (usually at or shortly after the end of the non-parole period) and the end of the term of imprisonment.

56. On the other hand, a good behaviour order, which, with probation, has much similarity to parole, can extend for a longer period. In the circumstances, that may have been a preferable option, but I cannot see how that could be done in this case.

2. I sentence you to imprisonment for twelve months to commence on 13 January 2014. Had you not pleaded guilty, I would have sentenced you to eighteen months' imprisonment.

3. I note that the non-parole period set by Magistrate Campbell to commence on 25 June 2013 and end on 24 January 2014 has been cancelled.

4. I set a non-parole period to commence on 25 June 2013 and to end on 24 May 2014.

59. Mr Raeyers, the effect of all that is that I have sentenced you to twelve months, backdated to when the summons was returnable on 13 January 2014 but I have made a non-parole period to end on 24 May 2014. That may be a bit short for you to get a parole application on, but given that the Sentence Administration Board has already granted you parole, it may be that it can be expedited and then you have can have a period of parole which will be obviously longer, will last until January next year but if, as you say, a structure around you and some supervision is best for you, then it is probably better that you be under that period for a little longer than you otherwise would be, namely the couple of months than otherwise the Sentence Administration Board was giving you.

60. I do not have any expectation you are going to avoid the criminal justice system again. It is very hard in your circumstances to get a job and to maintain your abstinence from addiction. I hope that is possible. I hope you are growing out of all that and I hope there is some prospect for you. A period of parole such as I have suggested may well be one that you are able to make use of and get into a lifestyle and a situation where you will not be back in custody. Your history is well against you but you are a relatively young man still. There is a lot of your life left to you.

61. Hopefully your mother is going to be supportive to you and if you can really try and now that you are off the methadone keep right away from all those people who will be desperate to get you to stick something up your arm or up your nose or wherever again, then it may be that you will not be in and out of jail as you have been.

62. I am stunned. I mean, you hate it in jail. You do not do well. Now is the chance for you to really put some effort into avoiding that. I hope I have given you a chance to do that and I can only hope that you will take that with both hands and get on with it.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Darryl Perkins Solicitors