R v Wrigley [2015] ACTSC 114

Supreme Court of the ACT|2015-05-11|Before: Refshauge J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. Leonard Wrigley be sentenced to four months imprisonment to commence on 10 May 2015 to take into account pre-sentence custody;

3. That the sentence be suspend today, 11 May 2015, for a period of twelve months;

4. Leonard Wrigley be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months with a probation condition that he be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him, including, specifically, as to treatment for alcohol abuse and mental health issues for a period of twelve months or such lesser period as the person supervising him may deem appropriate.**

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - Arson - Offender engaged in rehabilitation

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - Arson - Principles relating to Sentencing for Arson

Campbell v The Queen (Unreported, Supreme Court of Tasmania, Neasey, Nettlefold, Bettingham-Moore JJ, CA 76/1984, 7 September 1984)

Halden v R (1983) A Crim R 30

Parnis v The Queen [1993] FCA 624; (1993) 49 FCR 304

Porter v R [2008] NSWCCA 145

Riley v The Queen, Unreported, NSW Court of Criminal Appeal, 3 April 1996

R v Booth [2004] ACTCA 21

R v Glover [2002] NSWCCA 376

R v Graham (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 17 of 2009, 23 September 2009)

R v James (1981) 27 SASR 348

R v Perrone (1989) 43 A Crim R 366

R v Ray (Unreported, Supreme Court of Tasmania, Green CJ, 20 April 1983)

R v Relph [2002] ACTCA 6

R v S (a child) (1992) 60 A Crim R 121

R v Swindells (Unreported, Supreme Court of Tasmania, 1966)

Targett v The Queen (Unreported, Supreme Court of Tasmania Court of Criminal Appeal, Cox CJ, Underwood and Slicer JJ, CCA 38 of 1996, 5 November 1996)

**1. Following two telephone calls to police about the burning of a car in the Canberra suburb of Higgins on 28 September 2014, the accused, Leonard Wrigley, was arrested by police and charged with arson.

2. He appeared in the ACT Magistrates Court on 29 September 2014 and was granted bail, having spent one night in custody. On the second adjournment, he entered a plea of guilty and, on 9 December 2014, he was committed for sentence to this Court.

3. He appeared before me on 7 May 2015. He maintained his plea of guilty.

4. Arson is an offence against s 404(1) of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 1,500 penalty units (that is, at the time, a fine of $225,000) and fifteen years imprisonment.

5. Although, when entering his plea in the Magistrates Court, Mr Wrigley's counsel indicated that there would be a dispute as to facts, a Statement of Facts was tendered to me without objection. From the Statement I can make the following findings.

6. On 28 September 2014, Mr Wrigley was drinking at the Page Tavern in Page, ACT, when he met James Dorahy, who invited him to a bonfire at Jeramlee Estate Homestead in Wallaroo, New South Wales. He agreed to go and they left the tavern. Both Mr Wrigley and Mr Dorahy were heavily intoxicated by the time they arrived at the Estate Homestead at about 6.30 pm.

7. While there, Mr Wrigley and Mr Dorahy got into an unregistered Mazda utility vehicle belonging to the owner of the Estate and used solely as a farm vehicle on the property; hence it was not required to be registered.

8. Mr Wrigley, however, then got into a fight with Mr Dorahy and, after Mr Dorahy got out of the vehicle, Mr Wrigley drove it away.

9. At about 7.00 pm Mr Wrigley arrived at an address in Higgins and approached Sean McQualter who was in the rear yard of the property. Mr Wrigley was agitated and emotional and said to Mr McQualter, "I have a problem and I need to get rid of this car". He was, at the time, holding a red fuel container.

10. Although he had only known Mr Wrigley for a short period of time, Mr McQualter was intimidated by him, fearing for his safety because of Mr Wrigley's agitation and the fact that he was a larger man. As a result, he offered to take Mr Wrigley "up the road".

11. Mr Wrigley drove the Mazda utility to Drake-Brockman Drive in Higgins, followed by Mr McQualter in another vehicle. They left the road and drove parallel to it before stopping about fifty metres before the intersection of Drake-Brockman Drive and Kinsella Street. Mr Wrigley got out of the vehicle and began dousing it with fuel. He then ignited it.

12. Mr McQualter drove Mr Wrigley back to the Higgins residence but the two began to fight about what had occurred. Mr McQualter then called the police and Mr Wrigley left the area on foot.

13. Later that night, Mr Wrigley contacted police, telling them he had been abducted and tied up in the back of a vehicle and had only just managed to escape. Police found him at Hawker shops at about 8.40 pm that night. He was unsteady on his feet and his speech was slurred; he was still intoxicated. He was arrested.

14. The vehicle had some damage; there was a burn mark on the driver's side front panel that ran from behind the front wheel up to the bonnet. A photograph of the damaged vehicle was tendered. It showed the burn marks to the front offside of the vehicle. I had no information about the exact extent of the damage and, in particular, what the value of the damage was. As Mr M Reardon, counsel for the Crown, properly conceded, the damage was relatively superficial.

15. I had a helpful Pre-Sentence Report, a report from Dr William Knox, Consultant Psychiatrist, and a report from Dr Corinne Lingard, Mr Wrigley's General Practitioner. On this material and from counsel's submissions, I make the following findings.

16. Mr Wrigley was born in Melbourne, Victoria, in 1972 but grew up in southern Queensland, where he lived for most of his life. He was sexually abused for several years in his early teens. Dr Knox said this contributed to emotional difficulties and delinquent behaviour.

17. He left school in Year 10 and took up work in the construction industry. He is said to be a skilled tradesman in the building industry but with seasonal employment which has, at times, been sporadic. In fact, in May 2014, he relocated to the ACT for employment opportunities.

18. He married a woman with whom he had been in a relationship since he was seventeen. They separated, however, in 2014 when he moved to the ACT. There are three children of the relationship and Mr Wrigley maintains a close relationship with his wife and children. Indeed, it was said that he and his wife are discussing reconciliation. I was told he proposes to return to Queensland when these, and certain other proceedings, connected with his workers compensation claims in Canberra, are finalised.

19. In the ACT, he moved into private rental accommodation but moved out of the property in February 2015 because he was unable to maintain the rental payments when he lost his income. He has been living with his son-in-law since that time but is unsure how long he will be able to maintain that situation.

20. He has been in receipt of Centrelink benefits since March 2015 and, prior to that, was receiving workers compensation payments following a work accident in June 2014. Those payments ceased in November 2014.

21. At the time of the work accident on 23 June 2014, he was working as a linesman with a concrete pump for the firm of Gungahlin Concrete Pumping Pty Limited. It appears that he was pouring concrete on the site where he was working. He went to "kink off" the hose which was full of concrete and, therefore, hard to kink off. He did not succeed at the first attempt but, on the second attempt, he felt his left biceps tendon tear and immediately experienced severe pain, unable to lift his arm. He was driven to Calvary Emergency Department for initial assessment and then taken to The Canberra Hospital where an ultrasound examination confirmed that he had suffered a rupture of his left biceps. On 25 June 2014, he had a left distal biceps repair performed at The Canberra Hospital.

22. He has a residual weakness in his left arm which leads him to avoid vigorous use of it, especially for fear of further injury.

23. Mr Wrigley also suffered a workplace fall in 2005 and has ongoing neck pain from that injury. He has since used strong opiate analgesic medication for the pain but, more recently, discontinued its use, relying on Panadeine Forte for pain relief. He had also been prescribed hypotensive medication which he has ceased using, too, because of the cost.

24. As a result of his injury and consequent unemployment, he has suffered worsening depression and anxiety and this had led to worsening alcohol use. His general practitioner referred him to a psychologist. He had earlier obtained some psychiatric assistance for the abuse he had suffered and was prescribed anti-depressant medication for a time.

25. The referral to a local psychologist for the most recent episode of depression following his unemployment has been continuing and Dr Knox, Consultant Psychiatrist, who provided an expert report for his workers compensation proceedings but which, I have noted above (at [15]), was tendered to me, recommended that the treatment continue.

26. Dr Knox diagnosed a moderately severe chronic adjustment disorder with mixed anxiety and depressed mood. This has been aggravated by his ongoing pain and disability with his left arm and has been associated with his work place injury. Prior to that, he was in satisfactory psychiatric health.

27. Given the purpose for which he provided the Report, Dr Knox did not opine on the relationship between Mr Wrigley's mental health issues and this offending. Nevertheless, Dr Knox did make a connection between Mr Wrigley's mental health issues and his abuse of alcohol. I am satisfied that his mental health was, through its precipitation into alcohol abuse, in part, a contributor to the commission of the offence by him.

28. One of Mr Wrigley's frustrations has been that, although regarded as physically fit to return to work, provided that vigorous use of his left arm is not required, his employer has declined to re-engage him and he has remained unemployed.

29. Mr Wrigley says he first drank alcohol when he was fifteen and since then has consumed alcohol daily. He completed a three-month residential rehabilitation program in 1995 but has continued to consume alcohol. Indeed, he would drink daily to the point of intoxication.

30. Since the commission of the offence, however, he has ceased drinking alcohol at all. He attends weekly meetings of Alcoholics Anonymous which he finds beneficial in maintaining his abstinence. This is important, for alcohol abuse is one of the factors relevant to his risk of re-offending.

31. His criminal record shows eight offences, which appear to be, for the most part, related to drug and alcohol abuse. All but one were committed in the 1990's. In October 2005, he was convicted of an assault occasioning actual bodily harm and failing to leave licensed premises. He was sentenced to probation for eighteen months and ordered to pay compensation.

32. While it is a somewhat worrying criminal history, for a forty-three year old man, it is not particularly substantial and the most recent offence is now nearly a decade old.

33. The Court of Appeal in this jurisdiction has said on a number of occasions that arson is an offence of great gravity and the need for deterrence must generally be given substantial weight. See R v Relph [2002] ACTCA 6 at [26]; R v Booth [2004] ACTCA 21 at [26].

34. In R v Graham (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 17 of 2009, 23 September 2009), I reviewed the authorities concerning sentencing for arson. A number of the principles may be established from the authorities as follows:

(a) arson may be committed for many reasons: R v Dowell (1982) 6 A Crim R 113 at 116;

(b) the crime might also be committed in a wide variety of circumstances: Halden v R (1983) A Crim R 30 at 38-39;

(d) the crime is often difficult to detect which generally requires a deterrent sentence: Dowell at 116;

(e) nevertheless, a custodial penalty is not inevitable: R v Perrone (1989) 43 A Crim R 366 at 368;

(f) the amount of damage is relevant (R v Hall (1979) 28 ALR 107 at 117) but is not necessarily a measure of the culpability of the offender (Storey at 107); in summary, the damage is relevant but not determinative: R v S (a child) (1992) 60 A Crim R 121 at 134;

(g) there is no "tariff" for the offence: R v James (1981) 27 SASR 348 at 351;

(h) as with other offences, a significantly relevant mental health issue may result in general deterrence playing a much less significant role: Parnis v The Queen [1993] FCA 624; (1993) 49 FCR 304 at 306-7, but does not mean, however, that imprisonment will not be appropriate even where there are mental health issues: R v Ray (Unreported, Supreme Court of Tasmania, Green CJ, 20 April 1983);

(i) aggravating circumstances include that the offence is committed at night (Thomas (1988) 10 Cr App R (S) 386), use of an accelerant (Turill (1981) 3 Cr App R (S) 156), the commission of the offence for financial gain, such as insurance fraud (Dowell at 116), commission of the offence for the purpose of revenge (Campbell v The Queen (Unreported, Supreme Court of Tasmania, Neasey, Nettlefold, Bettingham-Moore JJ, CA 76/1984, 7 September 1984) at p 4), commission of the offence for the purpose of destruction of evidence of other crimes (Riley v The Queen, Unreported, NSW Court of Criminal Appeal, 3 April 1996) at p 3; Targett v The Queen (Unreported, Supreme Court of Tasmania Court of Criminal Appeal, Cox CJ, Underwood and Slicer JJ, CCA 38 of 1996, 5 November 1996) at p 1) and the potential risk of injury to life or serious harm to persons, including fire-fighters (R v Glover [2002] NSWCCA 376 at [53]- [57]); Porter v R [2008] NSWCCA 145 at [80]);

(j) the degree of pre-meditation and the deliberate nature of the offence is important: R v Swindells (Unreported, Supreme Court of Tasmania, 1966).

35. I had no information as to the intent with which Mr Wrigley committed this offence. Indeed, given his inebriation, he may not really know why he did it. There was, it seems, no aggravating intent.

36. In this case, there was only the use of an accelerant as an aggravating feature. Otherwise, it appeared to be a spontaneous act of offending with minimal damage though that was rather by good luck than through any planning. It is difficult to determine what pre-meditation there was, in that Mr Wrigley had a can of accelerant available but it is possible, given that the vehicle was taken from a farm, there was fuel available there. Indeed, it is possible that the fuel was in the utility itself. The Statement of Facts do not suggest that Mr Wrigley deviated in his journey to obtain the accelerant. I cannot find beyond reasonable doubt that the offence was pre-meditated and Mr Reardon did not submit that it was.

37. I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, as noted above (at [33]), general deterrence is and must be relevant. Given the progress that Mr Wrigley has made, however, rehabilitation is very significant in this case and it appears, partly in consequence of that finding, that specific deterrence plays no part. No claim for compensation has been made and other purposes of punishment do not seem, in this case, to feature prominently, though I have regard to them.

38. I have regard to the matters that I have set out above, required to be taken into account under s 33 of the Crimes (Sentencing) Act. Insofar as sentencing practice is concerned, I noted in R v Graham that the sentences in this Territory range from five years full-time imprisonment to six months imprisonment wholly suspended. That, of course, does not mandate the penalty in any particular case or, indeed, the permissible range of sentences appropriate for the offence.

39. I take into account the early plea entered by Mr Wrigley. Although not at the earliest possible opportunity, it does warrant a significant discount.

40. I take into account the seriousness of the offence as I have described it above. It was, as is properly and fairly asserted by Mr Reardon, not a serious version of this offence though the offence, itself, is a serious one.

41. I take into account the subjective circumstances of Mr Wrigley as I have noted them above. Most significant is the opportunity he has taken after his arrest to address his abuse of alcohol and the very substantial steps he has taken to that end. I note that his mental health is also being addressed. It seems to me, in terms of the principles set out in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32], that his depression following his unemployment precipitated his return to serious alcoholism which obviously played a substantial part in the offending. This, in my view, moderates his culpability and renders the level of general deterrence required in the sentence to be reduced to a significant degree. The steps he has taken towards rehabilitation should be recognised though his conduct does require denunciation.

42. He has expressed remorse. Indeed, he contacted the police, though with an entirely fictitious reason for the delay in doing so, but it was before he was found by police and the contact led directly to his arrest.

43. I note that Mr Wrigley has been assessed as unsuitable for a community service work condition to a good behaviour order and as unsuitable to serve a sentence of imprisonment by way of periodic detention. Both of these are due to "a medical condition and mental health issues". I am not completely convinced that it would be inappropriate for me to override those assessments, as I may do under ss 78 and 89 of the Crimes (Sentencing) Act. In the event, I do not consider that it is necessary.

1. I convict you of causing damage to a motor vehicle by fire on 28 September 2014.

2. I sentence you to four months imprisonment to commence on 10 May 2015 to take into account pre-sentence custody. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

3. I suspend the sentence today for a period of twelve months.

4. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months with a probation condition that you be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising you including specifically as to treatment for alcohol abuse and mental health issues for a period of twelve months or such lesser period as the person supervising you may deem appropriate.**

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.

(Sentence Administration) Act 2005

(Sentencing) Act 2005

(Sentence Administration) Act 2005

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