R v Zeng

District Court of NSW|2021-03-12

remarks on sentence

On 16 December 2020 the offender was found guilty following a judge alone trial that took place from 18 November to 7 December 2020, of one count on an Indictment: 1. On 22 April 2019, at Auburn in the State of New South Wales, dishonestly, with a view to making a gain for himself, did damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, by means of fire.
The maximum penalty proscribed for the offence is 14 years imprisonment and there is no Standard Non-Parole Period.
The offender was arrested on 15 August 2019 and has been in custody since that date.
These remarks on sentence should be read together with my reasons on verdict delivered on 16 December 2020 [2020] NSWDC 761.

The sentence hearing

The sentence hearing took place on 12 March 2020. Exhibit A was the Crown Sentence Summary which included the Indictment, the criminal history of the offender and his custodial history. The facts upon which the offender is to be sentenced are therefore to be derived from my judgment dated 16 December 2020.
The Crown case was a circumstantial case and based on the whole of the evidence, I made the following factual findings: 1. On 1 November 2018, the offender entered into a lease on behalf of Rainbow Sydney of the premises at 6/164 Adderley Street West, Auburn, for a period of three years at an annual rental payment of $115,420. The first month was rent free and thereafter the monthly rental was $9,618.38. An initial deposit of $10,222.44 was paid on 30 November 2018 and both the offender and Ms Huang Zhang signed the lease as directors of Rainbow Sydney. Ms Zhang actually paid the sum of $10,222.44. 2. The landlord secured a bank guarantee from Rainbow Sydney provided by the Commonwealth Bank of Australia in the sum of $30,667.32 which was also paid by Ms Zhang. 3. No rent was paid by Rainbow Sydney, and as at 28 March 2019, $21,518.33 was outstanding. On 24 April 2019 the landlord issued a notice of breach and ultimately secured the amount of the guarantee held by the Commonwealth Bank. 4. At no time were any complaints received by the landlord with respect to the electricity supplied to the property. 5. Ms Zhang had agreed to purchase a 40% share of the business for $120,000. On 18 October 2018 she transferred $20,000 to the offender's ANZ bank account. On 19 October 2018 she paid the rental deposit of $10,222.44. On 22 October 2018 she made a further transfer of $20,000 to the offender's ANZ bank account. On 7 November 2018 a further transfer was made of $20,000 into the offender's account, by which time she had transferred $70,222.44. At that time Ms Zhang decided that she wanted to withdraw and not be a shareholder and director. She asked for the money to be transferred back to her. 1. On 15 November 2018 Ms Zhang went with the offender to AC Professional Accounting where she tendered her resignation as a director and secretary of Rainbow Sydney. She also signed a transfer of shares document acknowledging that she had transferred 30 shares to the offender, meaning that she retained 10% of the shareholding. The offender refused to return her money to her. 2. Mr Boyu Zeng met the offender in February 2019 at the warehouse. The offender asked him to invest in 30% of the business and told him that 30 or 40% would be around $100,000 to $150,000. 3. Mr Zeng decided not to invest but agreed to purchase baby formula from the offender and ordered 180 boxes at an agreed price of $33,480. He paid $20,000 into the offender's CBA account on 1 March 2019, and on 16 March 2019, he transferred $14,560 into the same account. 4. Subsequently, Mr Zeng agreed with the offender that the baby formula purchased on his account would be on-sold, together with further baby formula which Mr Zeng would buy, making a total of 1,620 tins of formula. Mr Zeng purchased a further 540 units which he took to Rainbow Sydney's warehouse. On 19 March 2019 he sent an invoice to Rainbow Sydney in the sum of $72,900. On 21 March he received $20,000 from the offender, and on the following day received a further sum of $12,900, a total of $32,900. 5. The offender did not pay the balance of the money to Mr Boyu Zeng. He told Mr Zeng that he had lost his identification and that he could not transfer money from his account because the bank had frozen his account. Mr Zeng continued to telephone the offender asking him for his money and was told the same thing until in late April 2019 the offender told him that there was a warehouse fire and he could not pay the money. 6. On 29 March 2019, Mr Jack Ren met the offender at the warehouse and discussed purchasing 50 pallets of milk product from Rainbow Sydney. An agreement was made on 16 April 2019 for the supply of 50 pallets of milk product for $207,936. The goods were to be delivered within 15 days. On the same day, Mr Ren transferred $68,000 from HBW's CBA account to Rainbow Sydney's CBA account. On the same day, an additional sum of $15,174.40 was paid into a Chinese bank account in the name of Weixiong Zeng. 7. On 26 April 2019, the offender advised Mr Ren by WeChat that he had transferred two sums, each of $60,000, to his supplier and sent screenshots of those transactions. The two screenshots were dated 17 April 2019 and became Ex W. I found that they were documents that the offender had falsified. 8. After the fire, the offender telephoned Mr Ren and told him that his warehouse had burnt down. I found that the offender told Mr Ren that the neighbouring warehouse had been set on fire and that he had insurance cover from five insurance companies and that the compensation money would be paid very soon in a very large sum, far exceeding his loss. 9. I found that Mr Ren agreed to an amended contract dated 29 April 2019, by which he would pay an extra 20% deposit. On the same day, Mr Ren transferred $41,587.30 into the offender's Chinese bank account. 10. On 1 May 2019, Mr Ren received further receipts from the offender, one in the sum of $20,000 and the other in the sum of $13,000. 11. On 5 May 2019, the offender told Mr Ren that he had two suppliers, one in Sydney and one in Adelaide. They were asking for payment in full and he did not have the funds to do that and needed HBW to pay the remaining balance. Mr Ren transferred the sum of $20,793.60 to Rainbow Sydney's CBA account on 15 May 2019. On 20 May 2019, Mr Ren transferred a further amount of $28,310.20 into Rainbow Sydney's CBA account. 12. On 23 May 2019, Mr Ren paid a further sum of $31,190.40 into Rainbow Sydney's CBA account. He did this because he believed that if he did not pay the money he would not receive the goods he had ordered. 13. I found that subsequently, Mr Ren and the offender reached an agreement whereby the offender would purchase the 50 pallets of milk products back for an amount of $80,000. The offender did not pay this money and Mr Ren never received any product for which he had paid. 14. On 22 November 2018, AIG issued a public liability insurance policy, together with third party property cover. 15. I further found that on 16 April 2019, CGU issued a policy at the request of the offender for property damage on his business content and stock, in the combined sum of $350,000. On 17 April 2019, business interruption cover was added to the policy for 12 months gross profit of $180,000. 16. I found that the offender regularly visited the Star Casino up until April 2019 and I accepted the evidence of Ms Hill, that at the time of the fire, his losses amounted to approximately $53,000. Thereafter, with the monies he received from HBW, he continued to accumulate losses for the period May to July 2019 in the sum of approximately $76,000. 17. I found, on the whole of the evidence, that the offender had a problem with gambling. 18. I found that on 20 April 2019, at 21:32 hours, the offender downloaded a translation of a description for "Essential fire lighters", which included instructions for the use of the product, together with first aid advice (Ex AM). 19. I found that on the afternoon of 22 April 2019, the offender purchased a pack of Redhead firelighters from Woolworths, together with a reusable bag to carry the item in. It was the only item purchased by him and he took the firelighters to the premises. 20. I found that the CCTV system within the premises was switched off on 18 April 2019 at 6.36pm. Mr Lin and the offender were both in the premises at that time, however, Mr Lin denied switching off the hard drive and because it was the offender who had the system installed, I found it was the offender who turned off the hard drive. 21. I found that the offender owed the sum of $2,800 to Mr Yang for wages at the time of the fire and that the business of Rainbow Sydney was in financial distress. As at 16 April 2019, it had a bank balance of $3.56, prior to the receipt of $68,000 from HBW. None of the bank accounts of the offender or Rainbow Sydney at either ANZ or CBA had substantial balances at that time. 22. I found that the offender arrived at the premises at 6/164 Adderley Street West on 22 April 2019 at 2.13pm. At 6.13pm he was shown walking out of the premises and then re-entered. 23. I found that at 6.22pm the offender left the premises carrying a bag with what appeared to be a cardboard box inside it. I further found that at 6.26pm the fire in the warehouse premises was well under way, and detected by passing motorists on the adjacent M4, as depicted in the dashcam video in Ex A. 24. I accepted the evidence of Mr Mealor, that upon entering the premises, he observed six separate fires. I found that the most extensive part of the fire was in the south-western corner of the premises at location F5, identified by Mr Schweickle. 25. Notwithstanding the efforts of the fire brigade, I found that the warehouse premises were extensively damaged, including the roof. 26. I found that on 23 April 2019 the offender's mobile phone was seized by the police. 27. I found that on the same day, namely 23 April 2019, the contents of that phone were wiped by the offender accessing his Apple account. As police, following protocol, placed the phone on aeroplane mode upon its seizure, the phone was wiped when police subsequently connected it to the internet upon examination on 22 October 2019. In those circumstances a clear inference arose that it was the offender who wiped the phone so as to deprive police of the opportunity to obtain further evidence against him in their investigation. It was the only rational inference to be drawn from the evidence. 28. I found that on 25 April 2019 the offender submitted an insurance claim in the sum of $146,000 for stock lost in the fire, and the sum of $263,000 for equipment (Ex Q).

The offender's evidence

The offender tendered a bundle of documents which became Ex 1.1 to 1.6. Exhibit 1.1 was a report of Ms Clair Baker, forensic psychologist, dated 3 March 2021. Ms Baker interviewed the offender on 8 February 2021 via AVL over two hours. She took a family and personal history which confirmed that the offender had not spoken to his family since being incarcerated 18 months ago. He reported that he had come to Australia with the plan of bringing his family out to live with him once he had established himself here. He arrived on a tourist visa, but transferred to a sponsored visa after obtaining work with a company that delivered powdered milk products and health supplements to China. He stayed with that company for a year before deciding to start his own business in 2018.
In 2019, the author noted that the offender had surgery on his left eye following detachment of his retina. He had required two further surgeries on his left eye since being incarcerated. It had taken a long time for him to obtain appropriate medication by way of eye drops whilst in custody. He reported having no vision at all in his left eye currently.
The offender had also reported having an injury to his lower back when he was 17 years of age. Since being incarcerated, he had not been able to have any treatment to his back and now experienced daily spasms and chronic pain.
With respect to gambling, the offender reported that he did gamble but denied that he was addicted to it. Prior to his arrest, he generally played baccarat and poker at the casino, spending approximately $2,000 to $3,000 per month.
The offender had reported having a very challenging time in custody. He does not speak good English and had felt isolated and alone. Medical issues with his left eye had made his incarceration more difficult. The offender reported that he was harassed and bullied by other inmates and had been hospitalised in the last month after being beaten by multiple inmates. This was the third time he had been physically assaulted in custody. He had been allocated work in a cleaning role as this reduced the amount of bullying that he was subjected to.
The author reported that the offender wanted to reimburse the financial loss which his business partner and the landlord had incurred as a result of the fire. He also expressed a desire to restart his business upon his discharge from custody.
No formal psychometric assessment was carried out, however, a risk assessment revealed that he was in a low category risk of recidivism. Ms Baker identified his criminogenic needs relating to his gambling and recommended that he commence to engage in ongoing therapy to address his addiction. There was no evidence of any significant psychopathology, however, the offender was finding his incarceration very difficult due to his ongoing medical problem, leaving him blind in the left eye. He was also isolated in custody due to language difficulties and had been assaulted on three occasions.
Ms Baker concluded that the offender had repeatedly expressed considerable remorse for his current charges, expressing a desire to repay those who had lost money due to the fire. He stated "that he was sorry for his actions, and extremely remorseful". He was motivated to remain crime-free in the future and wanted to focus on his health, restarting his business, reuniting with his family and starting his life again without crime.
Exhibit 1.2 was a letter from Dr L Vago, ophthalmologist, dated 6 May 2020, setting out the diagnosis of retinal detachment in the offender's left eye, and symptoms of a possible early retinal detachment in his right eye. Dr Vago opined that urgent ophthalmological consultation with regard to his right eye was required to assess the possible retinal detachment. He required the use of eye drops four times a day and required a second operation to his left eye to remove "silicone oil". He also required post-operative care and supervision by a GP and ophthalmic surgeon to facilitate an uncomplicated recovery from the surgery and to avoid possible infections. He also needed assessment for his lumbar disc problem.
Exhibit 1.3 was a letter from the booking office of the Sydney Eye Hospital confirming that the offender had been placed on an elective surgical waiting list under the care of Dr A Hunyor.
Exhibit 1.4 was a referral to the Sydney Eye Hospital dated 24 July 2019.
Exhibit 1.5 were clinical notes in relation to the offender's admission for surgery by way of a left vitrectomy for his retinal detachment.
Exhibit 1.6 was a discharge summary following the surgery on 25 July 2019.
The offender was given leave to file further evidence of the assaults he alleged occurred in custody, on or before 9 April 2021. By email from the ODPP dated 3 April 2021, the prison inmate records were forwarded to my associate and on 9 April 2021 they were marked as Ex 2 on the sentence hearing. The attached records demonstrated that on 23 January 2021 the offender was the victim of an assault at the John Moroney Correctional Centre, in which he suffered minor injuries only. On 16 November 2021 at the Metropolitan Remand and Reception Centre, the offender was involved in an incident when his glasses were taken by another inmate who threw them on the ground, smashing them. No other assault or fight was observed by correctional officers.

The offender's oral evidence

The offender gave evidence with the assistance of a Mandarin interpreter. He gave evidence that he told the psychologist Ms Baker the truth about the matters reported by her. He gave further evidence that notwithstanding that he told the author of the SAR that he lit the fire, he denied lighting the fire.
The offender gave evidence that the allegation that he had defrauded Mr Ren was before the Burwood Local Court. This was a charge arising from the offender allegedly falsifying the receipts he sent to Mr Ren in China. It had been indicated to the learned Magistrate dealing with that matter, that the offence would be taken into account in his sentence proceedings. The offender gave evidence that he did not defraud Mr Ren, however, that he would like to pay off those people to whom he owed money. When asked why he told Ms Dredge that he lit the fire, the offender gave evidence that it was because "the other lawyer with me told me to answer that way". When asked whether the other lawyer told him to lie to the court, the offender said: "No. If you say it this way you'll get leniency."
The offender was asked by his own counsel if he did not believe that it was his responsibility for causing such extensive loss and damage, to which he replied to the following effect: "I was convicted. I must be responsible."
The offender gave evidence about waiting for a further operation on his right eye. He gave evidence that it was very hard for him in prison because he couldn't see properly and he had no access to a Mandarin interpreter. He was asked whether there were in the same pod, any other Mandarin speakers, to which he replied: "Yes. All of us are facing the same problem. That is we can't write English."
The offender gave evidence that he was concerned that his right eye sight will deteriorate. It was the same problem in his right eye as the left eye, but not as bad. He also had a disc problem in his spine, for which he had received no treatment in prison. He had asked for treatment, but was in pain every day.
The offender gave evidence that he had been beaten by other inmates on three occasions. One of those occasions was in a prison van on the way to court during his trial. He was in constant fear for his safety, but had not sought to be placed in isolation. He was now working in the library.
The offender gave evidence that he had visits in custody from some people who were friends, but had last spoken to his wife prior to his arrest. If he is allowed to stay in Australia, he had plans to work hard and make money to cover the amount of compensation required. When asked whether he understood that he is legally responsible, he said he would pay off all the people and the landlord. The offender gave evidence that in the past 10 years he had saved up $600,000 in Hong Kong.
In cross-examination, the offender was asked whether he lied to the psychologist, Clair Baker, by saying that he was sorry and very remorseful. The offender said he was sorry for the outcome. It was put to him that it was a lie to say that he was sorry, however, the offender said that he would take the consequences when he was sentenced. It was also put to him that it was a lie to state that he had been beaten by multiple inmates. He said it was not a lie. The offender said that the author of the SAR had checked the record herself as to the assaults upon him. It was put to him that there was no mention of the assaults in the SAR, however, he said that he did not know what she had written.
It was put to the offender that he lied whenever he thought it would help his position. He said he had no reason to lie. When asked why he told Ms Dredge that he lit the fire, he said: "I don't know how to answer."
The offender was asked about the money he had in savings in Hong Kong. He said it was with a bank known as Huaqi Bank.

The Crown submissions

The Crown relied on a written outline of submissions on sentence. It noted that the offender asked that a further offence be taken into account, of use false document to obtain financial advantage, contrary to s 254(b)(ii) of the Crimes Act 1900. The offence carries a maximum penalty of 5 years imprisonment. This Crown submission was subsequently withdrawn.
The Crown referred to the judgment of Johnson J in Porter v R [2008] NSWCCA 145 at [81], where his Honour referred to arson as an extremely serious and dangerous crime to which courts emphasise the importance of general deterrence.
The Crown noted that when considering aggravating factors, s 21A(2) does not contemplate features of offending which are an element of the offence. Further, a provision does not apply to consequences of offending which would normally be expected with offences such as arson.
The Crown submitted there was plainly a degree of planning involved, however, the element of fraud inherent in the offence, makes a degree of planning almost an inherent feature of it.
The Crown submitted that the offending involved a disregard for public safety, given that the premises adjoined others in a built-up industrial estate. Here, the extent of the fire was great, which militated towards a finding of an aggravating factor pursuant to s 21A(2)(i).
The Crown submitted that no genuine remorse had been established. It may be a mitigating factor that the offender has only one previous conviction for common assault.
In his oral submissions, the Crown referred to the prospect that the offender would be deported on discharge from custody. Pursuant to R v Pham [2005] NSWCCA 94 at [13], this was not a matter which should be taken into account on sentence, as it was an executive government decision.
The Crown conceded that the offender's previous conviction for common assault was not relevant and that he had no previous significant convictions. It was submitted that there was no corroborative independent evidence of the assaults on the offender in custody. However, the Crown accepted that the offender's eye sight problems makes custody more untenable for him.
The Crown further noted that the offender denied a gambling addiction which had provided an explanation or motivation for his offending. It was not a crime of great sophistication, because of the trail of evidence the offender left behind.
The Crown submitted that it was open to the court to find special circumstances and there was a need for supervision if he was released to parole. The SAR demonstrated the offender had no remorse for his offending and had poor prospects of rehabilitation and a guarded assessment for recidivism.

Submissions on behalf of the offender

Counsel for the offender also relied on a written outline of submissions. It was conceded that the offending fell squarely within the mid-range of objective seriousness for an offence pursuant to s 197(1)(b) of the Crimes Act 1900. It was submitted that it was important not to double count the planning involved. It was further submitted that the objective seriousness was not above mid‑range because it involved commercial premises and not residential premises. The fire occurred on a night over a long weekend, suggesting that the likelihood of anyone being in or near the premises at the time of the fire was remote.
Despite the planning, it was submitted the method of carrying out the ignition of the fire was amateurish and the expert evidence demonstrated that the offender left a trail which was relatively easily discovered. It was submitted that the moral culpability of the offender was thereby somewhat reduced.
It was submitted that the following aggravating factors should be taken into account pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): (2)(g) Damage caused by the offence was substantial It was submitted that if this is taken into account to determine objective seriousness, then it should not also be used as an aggravating feature. (2)(i) Offence committed without regard to public safety The same submission was made as above (2)(n) Part of a planned or organised criminal activity was accepted. (2)(o) Committed for financial gain. This was accepted.

The offender submitted the following mitigating factors applied pursuant to s 21A(3): (3)(e) No significant prior record of previous convictions. (3)(g) The offender was unlikely to re-offend.

The offender relied on the subjective matters set out in the report of Ms Baker dated 3 March 2021. It was submitted that a finding of special circumstances should be made on the basis that this was the offender's first time in custody, he had no family or close friends in Australia, and no emotional support. Further, he does not speak English well and has little access to interpreters which makes his imprisonment unduly harsh.
It was further submitted that the offender had been assaulted on three occasions whilst in custody. He was at risk of ongoing physical abuse from other inmates which would also add to the onerous nature of his incarceration. The medical evidence was not conclusive, however, it was submitted that the offender has an unresolved severe problem with his eye sight, which would see his time in custody as exceptionally difficult.
In his oral submissions, counsel rehearsed his submission that the objective seriousness of the offending fell within the mid-range, and that there were no particular aggravating factors to take into account. It was submitted that the court would discount the offender's previous assault conviction. The offender did not contest that his prospects of rehabilitation could be regarded as poor, and the court would find that he had no remorse for the offending. It was however submitted that he was at a low risk of re-offending in accordance with the risk assessment undertaken by the author of the SAR.
Counsel rehearsed his submissions regarding the onerous conditions of the offender's custody and the basis for a finding of special circumstances. It was conceded that general deterrence is of importance in sentencing for arson offences.
The offender was given a further opportunity to adduce evidence, corroborating the prison assaults, and a direction was made that further evidence was to be served on or before 9 April 2021. That evidence is referred to above.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
I find that the objective seriousness of the offending here was clearly in the mid‑range of objective seriousness for an offence pursuant to s 197(1)(b) of the Crimes Act 1900. For the reasons outlined in my judgment on verdict, the fire was clearly deliberately lit for financial gain. It occurred on the evening of a public holiday in commercial premises located in a densely populated industrial part of Sydney, close to a motorway. The warehouse premises suffered substantial damage, however, because of the timing of the offending, few members of the general public or nearby occupiers of industrial premises were put at risk. First responders, including fire brigade members who attended what was a major fire, were however put at risk.
Whilst the damage caused has been taken into account in determining the objective seriousness, it should not be regarded as an aggravating feature pursuant to s 21A(2)(g) of the CSPA. However, the fact that the offence was committed without regard to public safety is an aggravating feature pursuant to s 21A(2)(i). The offending occurred with complete disregard to the safety of other occupiers of nearby buildings and members of the public using public streets nearby, including an adjacent motorway for example.
A further aggravating feature of the offending is that it was a planned or organised activity pursuant to s 21A(2)(n). However, the planning was not sophisticated, and the offender laid a trail of obvious evidence linking him to the crime, for example, CCTV footage of him buying fire lighters at Woolworths on his way to the premises on the day of the fire.
The offender has shown no remorse for his offending. He pleaded not guilty in the face of a very strong Crown case in which he gave evidence which was characterised as mendacious. That background made it difficult to accept any evidence he gave at the sentence hearing, and in particular his explanation that he did not light the fire, but said that he did so on the advice of an unnamed lawyer so as to obtain a more lenient sentence. This could only be described as very unsatisfactory evidence. I do not accept the evidence he gave that he has savings with which he can compensate those who suffered losses as a result of the fire, nor do I accept his expressions of remorse to the psychologist.
I accept the Crown's submission that arson is an extremely serious and dangerous crime, and that general deterrence must be emphasised in the sentencing process, relying on Porter v R, supra. A clear message must be sent to like-minded persons in the community that Parliament has proscribed severe penalties for arson, and that the courts will impose condign punishment in appropriate cases, particularly where members of the public, first responders and neighbouring properties are placed at risk. Specific deterrence is also important here given that the offender has demonstrated limited insight into the seriousness of his offending.
In all of the circumstances, the offender's prospects of rehabilitation, given that he does not concede that he has a gambling addiction, must be regarded as poor. Whilst his one previous conviction was for a minor assault matter, as a mitigating circumstance, the offender's lack of convictions does not sound in great mitigation of his sentence. Nor can much weight be given to the proposition that the offender is unlikely to re-offend as a mitigating factor here.
I find, however, that the offender does suffer onerous conditions in custody due to his eye sight problems, his need for ongoing medication and treatment for his eyes, and the minimal visitation rights he has to visitors. Generally, ill health will only be a mitigating factor where the evidence establishes that there is a serious risk that the imprisonment will be a greater burden on the offender, by reason of that ill health, or whether there is a serious risk that imprisonment will have a grave, adverse effect on the offender's health - see Doudar v R [2021] NSWCCA 37 at [59]. Here, there is no evidence upon which to base such a finding.
The offender's eye sight difficulties, his language difficulties and the COVID‑19 pandemic and its implications for the conditions for incarceration on this offender, together with it being his first time in custody mean that special circumstances are established pursuant to s 44(2) of the CSPA so as to warrant a variation of the statutory ratio between the head sentence and any non-parole period imposed.
I take into account the maximum penalty of 14 years imprisonment pursuant to s 197(1)(b) of the Crimes Act as a guidepost in the sentencing process. The offender is 29 years of age and has been in custody since 15 August 2019. I therefore intend to backdate any sentence to that date.
I find the s 5 threshold has been crossed, and having considered all possible alternatives, no sentence other than imprisonment is appropriate. I intend to sentence the offender to a term of imprisonment of 5 years with a non-parole period of 3 years to date from 15 August 2019.

Orders

I make the following orders: 1. You are convicted of the offence pursuant to s 197(1)(b) of the Crimes Act 1900 of dishonestly, with a view to making a gain for yourself, damage property, namely, warehouse located at Adderley Street West Auburn and its contents by means of fire. 2. I sentence you to a non-parole period of imprisonment of 3 years to commence on 15 August 2019 and to terminate on 14 August 2022. 3. The balance of term will be for a period of 2 years from 15 August 2022 to 14 August 2024.
You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. You should also understand that you may be committed to immigration custody upon termination of the non-parole period.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2021

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (4)