Supreme Court of Tasmania|1995-09-27|Before: Wright J

R v Thomas Hueston [1995] TASSC 110; (1995) 5 Tas R 210 (27 September 1995)

Criminal court procedure - Judgment and punishment - Declaration that offender is a "dangerous criminal" - Habitual arsonist lighting fires in his bedrooms in boarding houses - Whether such crimes involved an "element of violence." Criminal Code 1924 (Tas), s392.

WRIGHT J There is no need to rehearse the facts of the present indictment, they were put before me the last time this matter was before the court and they do not appear to be in dispute. The prisoner was charged, that on 24 June 1995 he unlawfully set fire to property, that is, bed and bedding, the property of Adam Clay and others. He has pleaded guilty to that offence and he now stands for sentence in respect of it. I have also been asked by the Crown to declare that he is a dangerous criminal pursuant to the provisions of the Criminal Code, s392.

2. There can be absolutely no doubt that on the basis of his past and present criminal behaviour, the prisoner does represent a very serious danger to the life, welfare and property of law abiding citizens. He has committed many, apparently irrational, crimes of arson and unlawfully setting fire to property. Given his usual modus operandi it is quite remarkable to me that he has not yet caused serious personal injury or death. The facts of the previous convictions which were put before me, without dissent, by Mr Stoddart this afternoon, disclose the following chronology of events.

3. In June 1985 he was convicted of unlawfully setting fire to property. The facts of that case were as follows. He was living on a nightly basis at the St Vincent de Paul night shelter. A fire occurred in his room which he claimed at first to have been caused by smoking in bed and that he may have dropped a lighted cigarette butt on the bed, but he later admitted to the police that he had intentionally lit the fire in his bedding. He said he had gone to bed early but was harassed by other residents at the night shelter and he then got up, watched television on which he saw a movie in which there was a fire, and he returned to his room, set his bed alight using a tobacco packet which he lit and put under the bed and, as a consequence of that conduct, his bed and possessions were destroyed.

4. In April 1988 he was convicted on a similar charge, that is, unlawfully setting fire to property; he was then living in a basement flat at a boarding house operated by the Order of St Basil. He used a lighter to set fire to the bed clothes in his room, he reported the incident immediately to the police and he admitted the offence. He was apparently upset because three cartons of cigarettes had been stolen from his room. I am told, and it is not disputed, that only prompt action by an administrator at the boarding house prevented greater damage. The accused had locked the room and left the premises immediately after lighting the fire.

5. In January 1989 he was charged with and convicted of arson, the facts of which were that he was then living in a furnished room on the first floor of a boarding house at North Hobart. At about 5pm on 26 January 1989, he arrived back after a visit to his doctor and he became depressed because he had no money for food or cigarettes. He then set fire to the blanket on his bed with a cigarette lighter and when that had taken hold, left the room, closed the door behind him, went to the police station, reported the fire and admitted lighting it. About $1,000 worth of damage was caused to both contents and the structure on that occasion.

6. In May 1990 he was again charged with and convicted of arson. On this occasion he was living in an upstairs room in Roseville Guest House at New Town. During the afternoon of 26 May he watched a movie in which a fire took place and people were setting fire to everything. He then decided to light a fire himself so he went to his room and, after drinking some coffee, set fire to his mattress with a lighter. He waited for the fire to take hold before leaving, going to Police Headquarters where he again admitted lighting the fire. He claimed to have no money and that he wanted to go to gaol because he was "better off over there". There were other residents at the guest house at the time. On this occasion $1,350 worth of damage was caused to both the contents of the room and the wall.

7. In April 1991 he was living at Flint House, a guest house in New Town. Again he was charged with and convicted of unlawfully setting fire to property because on 14 April, having consumed two or three bottles of beer before going to bed at about 7pm, he set fire to his bedding with a cigarette lighter. After lighting the fire he left the premises, went to Police Headquarters where he reported the fire and admitted lighting it. His reason for lighting it on this occasion was that he wanted to go back to prison. There were other residents in the guest house at the time. The fire was detected by a smoke detector, the bed was damaged by fire and the rest of the room by smoke and water.

8. In February 1993 the prisoner was charged with and convicted of unlawfully setting fire to property. The facts were as follows. The accused was living in a ground floor room in a boarding house in North Hobart. At about 5.30pm on 25 February he set fire to the bedding in his room with a cigarette lighter. He then left and went to Police Headquarters where he reported the fire and admitted lighting it. He said he had been drinking and that he had lit the fire because he owed money around town and wanted to go back to gaol. There were about a dozen other residents in the building. The fire brigade was called by the police and about $1,000 damage was done to contents and the interior walls of the building on that occasion as well.

9. Now, there are six previous convictions, all falling very much within the same mould and involving very much the same sort of conduct and, as I said a few minutes ago, a modus operandi is revealed which quite obviously indicates that when these crimes are committed by the accused there is a very serious risk of personal injury, death or damage. However, as pointed out by Mr Stoddart, before I can make an order of the kind requested by the Crown, I must be satisfied that the crime of which the prisoner is now convicted and those of which he was previously convicted upon which the Crown places reliance are crimes "involving an element of violence". In practical terms, of course, that means for the application to succeed it must be established that the acts of arson and unlawfully setting fire to property which I have recounted, must be capable of being characterised as crimes involving that element.

10. I have derived some assistance from the decision of R v The Criminal Injuries Compensation Board ex parte Clowes (1977) 1 WLR 1353 to which I was referred by Mr Stoddart but before dealing with that case I think it appropriate to observe that an element of violence need not be a constituent element of the actual offence. This much is clear from my earlier decision in R v Gill A52/1989 and was endorsed by the former Chief Justice in R v McCrossen [1991] TASSC 1; (1991) Tas R 1. The decision of R v Butcher, a decision of the Court of Criminal Appeal in Victoria, reported in [1986] VicRp 4; (1986) VR 43 is also consistent with these views, as is the opinion of Wein J in Clowes' case.

11. It is worth noting however that Wein J in that case took the view that a "crime of violence", and that was the expression used in the relevant legislation there under consideration, cannot mean an offence which involves nothing more than the infliction of damage to property. He said at 1362:

"I would rather say that a crime of violence means some

crime which by definition as applied to the facts of

the case involves the possibility of violence to

another person."

The opinion of Eveleigh J was based upon the particular statute then under consideration, so his views are not particularly apt in relation to the Tasmanian section, as I see it. Lord Widgery CJ, however, who was the other member of the court, considered that whether or not a crime was a "crime of violence" was essentially a jury question. He suggested however that in the context in which it was then being considered, it was an offence involving the unlawful use of force or threats "directed at the person of another". He took the view that when the crime involved damage to property with the possibility of indirect harm to a person, it would not necessarily be a crime of violence, even if injury resulted. The views that he expressed in that case were later supported by Lawson J in the case of R v Criminal Injuries Compensation Board ex parte Webb and Ors (1987) QB 74 to which Mr Stoddart referred this afternoon, and I am grateful for that reference because I had not previously come across that decision.

12. The same issue, it seems to me, is now raised in this case as arose in McCrossen, that is, whether the crime before the court may properly be characterised as a crime involving an element of violence. The facts in that case were materially different from those of the present case as the offender there had made threats of violence against a woman who had been instrumental in having him arrested, convicted and imprisoned for robbery. His Honour the Chief Justice took the view that the offence of attempting to commit the crime of threatening to murder with which McCrossen was charged, was a crime involving an element of violence for the purpose of the Criminal Code, s392. As he said at 6 of his judgment, "the making of a threat to kill with the intention of intimidating someone is capable of constituting a crime involving an element of violence." I draw attention to this decision because, like the present case, no actual harm had befallen anyone.

13. Thus far all the decisions which I have mentioned have been concerned with situations in which a person has been injured directly or indirectly or has been threatened with injury. Re Clowes is the only case in which was discussed the possibility that a crime of injuring property may amount to a crime of violence, and there was no unanimity on the part of the judges constituting that court as to the correct approach. There is certainly nothing in the Criminal Code, s392 which specifically requires that the element of violence in the crimes referred to in subs(1)(a) and (b) must be in the nature of force or threats to a person, rather than, for example, damage to property. It is interesting to note, although it can have no persuasive value, that in Re Clowes the criminal injuries compensation scheme specifically included injury by arson as a compensable injury and thus, by definition, constituted arson as a crime of violence for the purposes of that legislation. However, as I say, as that is a legislative definition which does not apply in this State, it cannot have any persuasive value as far as my consideration of the section now in question is concerned.

14. In determining whether or not to make a declaration under s392, a judge must consider whether such a declaration is "warranted for the protection of the public". Whilst this may suggest that the basic thrust of the section is to protect citizens from personal injury rather than to prevent property damage, there is, again, no actual limitation of this kind in the words of the enactment. So far as I am aware this is the first time that a court in this State has been called upon to determine whether or not s392 can or should apply where the criminal involved has neither injured nor deliberately set out to injure another person. There are many crimes in the Code, ChsXXXI and XXXIA , in which there is no essential ingredient of intending to injure persons or to endanger human life, but in which such possible consequences are abundantly obvious. I refer for example to endangering a vessel, s270(b) and (c), unlawfully interfering with a railway, s271, unlawfully injuring a public utility, s272 and endangering the safety of an aircraft, s276(c). It seems to me that any person who repeatedly committed crimes within these categories would indeed be creating a serious risk of death or injury to members of the public in all but the most unusual circumstances and it also seems to me that the only sensible and rational means of preventing such danger and providing appropriate protection to the public, would be to impose some form of preventative detention such as is provided for in s392.

15. After careful consideration of the section now in question, I have come to the conclusion that the offences relied upon by the Crown under s392(1)(a) and (b) are indeed crimes involving an element of violence. I come to that conclusion because those crimes clearly entail deliberate damage to property, coupled with an obvious and substantial risk of direct injury resulting therefrom to other persons. Had such persons been so injured, the prisoner would have been criminally culpable for his reckless conduct. The mere fact that on each occasion tragedy was averted due to prompt intervention by other persons, does nothing to lessen the dangerous nature of the prisoner's conduct. Viewed from this perspective I consider that the prisoner's criminal conduct can and should be regarded as involving an element of violence on each of the relevant occasions and also on the occasion in respect of which he stands for sentence this afternoon. I can therefore see no basis for either confining the scope of s392 as contended by Mr Avery or failing to exercise my discretion to make the declaration sought by the Crown.

16. In my opinion, taking into account the medical evidence which was tendered to me and all of the other factors to which I must have regard pursuant to s392(1)A, it is appropriate to make a declaration under s392.

17. Accordingly the prisoner is sentenced to three years' imprisonment and I also make a declaration that he is a dangerous criminal. I am required to impose a levy under the Victims of Crime Compensation Act. There will be a levy of $50. I direct that it be paid in the Court of Petty Sessions at Hobart within three months of the accused's discharge from prison.

R v Thomas Hueston [1995] TASSC 110;

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Court

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Judgment (23 paragraphs)

R v Thomas Hueston [1995] TASSC 110; (1995) 5 Tas R 210 (27 September 1995)

Parties

Cases Cited (1)