Regina v Mills

Crimes Act 1900 - s 203E(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21, 21A(2), 22, 54A, 54B(2), 54B(3), Criminal Appeal Act 1912 - s 5D

Johnson v The Queen (2004) 78 ALJR, 616 Pearce v The Queen (1998) 194 CLR 610 R v Dodd (1991) 57 A Crim R 349 R v Dunn [2003] NSWCCA 169 R v Engert (1995) 84 A Crim R 67 R v Hallocoglu (1992) 29 NSWLR 67 R v Letteri NSWCCA 18 March 1992 R v Oliver (1980) 7 A Crim R 174 CASES CITED: R v Pont (2000) 121 A Crim R 302 R v Scognamiglio (1991) 56 A Crim R 81 R v Simpson SA Court of Criminal Appeal 27 November 1987 R v Slattery (1996) 90 A Crim R 519 R v Tuncbilek [2004] NSWCCA 139 R v Walker [2005] NSWCCA 109 R v Wall [2002] NSWCCA 42 R v Way [2004] 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17

E A Wilkins (Crown) COUNSEL: G J Bellew

S Kavanagh (Crown) SOLICITORS: Emil Ford & Co

• 22 - IN THE COURT OF CRIMINAL APPEAL 2004/3224

WOOD CJ at CL GROVE J HOEBEN J

Friday 6 May 2005 Regina v David MILLS Judgment 1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeal Act 1912 against sentences imposed on the Respondent in the Sydney District Court on 6 December 2004, in respect of three offences of intentionally causing a fire with recklessness as to the spread of the fire, contrary to section 203E(1) of the Crimes Act 1900. 2 The offence is one that attracts a maximum penalty of imprisonment for 14 years. A standard non-parole period of imprisonment for 5 years is prescribed pursuant to s 54A and the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999. 3 The offences were committed in the Ku-ring-gai National Park on 8 January 2004 and 8 February 2004. Pleas of guilty were entered by the Respondent. 4 The Respondent was sentenced, on Count 1 to a non-parole period of imprisonment for 9 months commencing on 6 December 2004 and to a balance of term of 3 months expiring 5 December 2005. The sentence was directed to be served by way of periodic detention. 5 In relation to Count 2, taking into account on a Form 1, two offences of take and drive a conveyance without consent, the Respondent was sentenced to a non-parole period of 21 months imprisonment also commencing on 6 December 2004 and to a balance of term of 7 months expiring on 7 April 2007. This sentence was similarly directed to be served by way of periodic detention. 6 For Count 3, the Respondent was sentenced to a non-parole period of 9 months also commencing on 6 December 2004 and to a balance of term of 3 months expiring on 5 December 2005. This sentence was also directed to be served by way of periodic detention and was wholly concurrent with the other sentences. 7 Conditions of parole were set for each count requiring the Respondent to continue to reside with his parents at their current address, to advise the Registrar of the District Court of any change in that address and to continue to take medication as prescribed by Dr Pickering or by his treating psychiatrist. 8 The Director of Public Prosecutions signed a Notice of Appeal against the inadequacy of the sentences on 9 December 2004. The Notice of Appeal was served on the Respondent on 14 December 2004.

FACTS 9 The Respondent applied to become a voluntary probationary member of the Coal and Candle Brigade of the New South Wales Rural Fire Service on 24 September 2003. After completing a basic fire-fighting course within the Brigade, he was assigned to a fire-fighting crew from 21 December 2003.

Count 1 10 At about 12 PM on 8 January 2004 the Respondent stopped his car on McCarrs Creek Road in the Ku-ring-gai National Park. He lit a Jiffy firelighter and threw it into the bush. He then drove a short distance down the road, and after lighting another Jiffy firelighter he threw it into the bush. One of the firelighters burnt an area of approximately 20 metres in length and 15 metres wide. The other firelighter burnt an area of about 0.5 metres. Members of the Rural Fire Service extinguished the fires.

Count 2 11 After throwing the firelighters into the bush at McCarrs Creek Road, the respondent drove to Akuna Bay where he purchased some refreshments before driving up Liberator General San Martin Drive in the Ku-ring-gai National Park. Just before 12:30 PM he stopped at the Mount Ellis trig, lit three more Jiffy firelighters and threw them into the bush. At this time the weather conditions were highly conducive to the spread of any fire, with a maximum temperature of 29.4 degrees centigrade, a minimum humidity of 18.5% and peak wind speed of 43 kilometres per hour. 12 At about 12:30 PM the Respondent contacted the Coal and Candle Rural Fire Brigade by telephone and reported seeing smoke in the area of the Mount Ellis trig and walking trail. Fire crews were dispatched to investigate and to fight a fire that was by then expanding to the east. Early in the afternoon, the Respondent attended the fire station. He contacted Roger Pearce, the Brigade President and Deputy Captain, by telephone and offered his assistance in fighting the fire. He was not required at that stage, but was instructed to hold himself available in case he was needed later. 13 He contacted Mr Pearce several times during the afternoon repeating his offer of assistance. He attended the station at 6:30 PM and went with a Rural Fire Service investigator to the location where he had reported first seeing smoke. The Respondent told the investigator that, while seated in his car, he had seen two fires on either side of the trail and smoke near three power poles. The Respondent then assisted fighting the fire until about 6 AM the following morning. On Saturday 9 January 2004 he also assisted in fighting the fire from about 6 PM until mid morning on the following day. 14 The Respondent's involvement in the fire was initially suspected by investigators because the account which he had supplied as to where he had been when he saw the smoke was not possible. He was interviewed by police on 9 January 2004 and gave a very detailed account of his movements that day, including a reference to the place where he claimed to have sighted the fires and to his subsequent reporting of them. He denied any personal involvement in setting the fires, and said, at one stage: "[Q 164] You know, at the end of the day I'm not someone that's going to go around lighting fires, because I'm not that type of person and, you know, I see how much destruction and the rest of it they do, so you know, I just can't believe people do such a thing like that. You know, I'm not someone that's goin' to go and, and light, light a fire just so, you know, 'cause I'm in the rural fire service, I'll go and put it out, you know, the rest of that. You know, I don't care if go to the rural fire service and not get a call out or anything, you know. Because, you know, fire it, it, it's not, it's not to be messed with, you know, because how big's the bloody fire out there now, you know, and how many acres and the rest of it has it churned through, you know. I don't, I don't do the rural fire service for kicks, I do it to, to give something back to the community……So, I'm not someone that's goin' to go and light a fire just so I can put the bloody thing out. That is just ridiculous." 15 The fire the subject of this count continued to burn for five days until 13 January 2004. It burnt an area of 1,480 hectares of National Park with a perimeter of 32.5 kilometres. It is estimated that resources to the value of approximately one million dollars were expended in combating the fire, including 443 personnel, more than 50 vehicles and eight aircraft. There were no losses to private property, although various settlements were threatened. Damage was caused to the water and communications supply to the Akuna Bay Marina. In addition, six fire fighting personnel sustained injuries including a broken ankle, eye injuries, a torn ligament, back injury and dehydration. The fire damaged the habitat of a large number of native animal species that are known to inhabit the area.

Count 3 16 At approximately 8:00 AM on 8 February 2004, the Respondent drove into West Head Road in the Ku-ring-gai National Park and stopped at the Salvation Track. He lit a piece of cloth that was stuffed into a bottle of fuel and threw it into the bush. He then drove a short distance down West Head Road before stopping again. He lit another piece of cloth, stuffed it into a bottle full of fuel as an accelerant and threw it into the bush. He returned to his car and drove to the fire station at Coal and Candle. 17 A government employee who was driving in the National Park at 8:30 AM saw a thin plume of smoke. He found that it was coming from the first fire which the Respondent had lit that morning. It was burning an area of about a square metre. He extinguished it. Shortly after, the second fire was found. After burning an area of about five metres by ten metres it was extinguished by volunteers from the Rural Fire Service. The Respondent was a member of the crew that extinguished the second fire.

The Respondent's Arrest 18 On 25 March 2004, the Respondent was arrested by police and interviewed in relation to a boat which he had taken from a trailer and which he had then attached to a trailer on his car and driven away. He admitted to having taken the boat sometime in January 2004 on the spur of the moment, and to having used it on two occasions. 19 Initially he denied having been responsible for any of the fires, observing at one point: "[Q 314] I'm not that type of person that's gunna go and light a fire, because it not only puts the people that go and fight it at risk, it puts people's houses at risk and also I know what danger can be, 'cause you see it on the TV, all the Canberra bush fires and the rest of it and just so heartbreaking. I would absolutely hate to lose my house in the fire." 20 Later that day, after a search warrant was obtained for his home, he participated in a further record of interview in which he made admissions in relation to the setting of the Mt Ellis Trig fire on 8 January 2004. In the course thereof he referred to having acted spontaneously and to not knowing why he had acted in this way, although he rejected the proposition that he had done so "for kicks". He denied having been responsible for the fires on 8 February. 21 On 5 April 2004, police contacted the Respondent and informed him that they wished to speak to him again about the fires on 8 January and on 8 February 2004. 22 On 19 April 2004 he attended Ryde Police Station with his solicitor. During this interview he confirmed the admissions he had made to police on 25 March 2004. He also provided a written statement admitting that he had started the fires near McCarrs Creek Road on 8 January 2004 as well as the fires on 8 February 2004. 23 It was accepted that the Respondent entered his pleas of guilty at the first available opportunity, and that his admissions to police were of assistance in that, without them, it may have been very difficult for the offences to be proved. 24 The Respondent gave evidence, during the sentence hearing, confirming that the fires on 8 January 2004 had been ignited with Jiffy firelighters that had been left over in his car, from a camping trip. He said that he had not planned to light the fires and did not know why he had done so. In relation to the fires on 8 February 2004, he gave evidence that to light the fires he had used fuel that he kept in his car for his mowers and whippersnippers. He was again unable to explain why he had done so and denied that they had been planned. 25 In the course of his cross-examination the Respondent was asked, but denied that he had been aware of the potential consequences of lighting the fires on 8 February, suggesting that his "mental state was an absolute mess" and that he did not even remember "what the day was like or anything from the day that I did it."

Form 1 matters 26 These offences related to the boat and trailer that had been located at his home. When initially questioned by police on 3 February, the respondent had denied any knowledge of the boat which had suffered damage to the value of about $1525, or of the trailer. Reparation to the owner and his insurer was subsequently paid.

SUBJECTIVE FEATURES OF THE RESPONDENT 27 The Respondent was aged 23 at the time of the offences, and 24 at the time of sentence. His Honour found that he had grown up in a stable home environment, although it was one that was punctuated by frequent moves of the family within Australia and overseas. He had struggled at school where he had been regarded as "borderline dyslexic". 28 He completed Year 10 at the end of 1997 and shortly afterwards commenced an apprenticeship as a horticulturalist at the Royal Botanic Gardens. He had difficulties, however, with the TAFE studies required for the apprenticeship. 29 A number of traumatic events seem to have accompanied his life over the years involving accidents, suicides and serious illnesses of friends, as well as serious illnesses that affected both his father and himself. 30 On 26 February 1999 he made a false report to the police about a break and enter into his parent's home. He confessed on that day, and was charged with making a false representation resulting in a police investigation. No conviction was recorded and he was placed on a good behaviour bond for 3 years with a condition to undergo psychiatric treatment. 31 In June 2000 he was diagnosed with Guillain-Barré Syndrome, a relapsing neurological disorder that can result in loss of movement and sensation. As a result of this condition, he was for a time unable to walk, and was required to undergo a period of hospitalisation followed by rehabilitation. He has suffered up to ten relapses of the disorder although there is some material, in the report of Dr Johnston, to suggest an emotional component for at least some of the more recent incidents. He says he still suffers a lack of sensation in his feet, which has left him prone to falling.

32 He returned to light duties at the Royal Botanic Gardens in February 2001 but was unable to complete the TAFE component of his apprenticeship. 33 Following the September 11 terrorist attacks he joined the State Emergency Service, he claimed out of a desire to help the community in the event of the occurrence of a similar event in this country. In due course he transferred to the Rural Fire Service. 34 By September 2002 he was engaged to be married. His apprenticeship with the Royal Botanic Gardens came to an end in late 2002. In early 2003, he decided to start his own gardening business and he moved in with his fiancée. The business however proved to be unsuccessful. This caused him to become depressed, and led him to seek treatment from a local General Practitioner, who placed him on anti depressant medication. His relationship with his fiancé also progressively deteriorated over this period, apparently coming to an end in about January 2004, in circumstances where he suspected her fidelity, a matter which caused him to feel depressed. At the same time he experienced the loss of some of his gardening jobs which only exacerbated his depression. 35 There was evidence to show that on 3 February 2004, that is, between the commission of the second and third offences, the Respondent made an attempt at suicide which led to his admission to the Hornsby Hospital, after which he was placed in the care of the Ryde Mental Health Service and given prescribed medication. This incident involved taking himself to a cliff in the Ku-ring-gai National Park and cutting his wrists. He phoned his fiancée, and then the 000 number, which led to a response by police and ambulance staff. It seems to have occurred at about the time of the discovery by police of the stolen boat and trailer. That care was continuing at the time of committing the third offence, but the Respondent said that he had not found it beneficial. Treatment by this Service ceased in April 2004, at which time it was indicated to him that no further help could be provided. 36 Subsequently he sought treatment from a counsellor, and then from the psychiatrist Dr Roxanas, who referred him to Dr Pickering, who placed him on Attentor, a different form of medication, which is prescribed for ADHD. The Respondent said that this had brought about a total change in his view on life, and has led to an end to him having suicidal thoughts. In that regard he said that, apart from the attempt on 3 February 2004, he had made other attempts at self harm, involving cutting his arms and legs. 37 Dr Pickering excluded any evidence of major psychiatric pathology, or of any gross defect of cognition, or of the presence of a dissociative disorder, but did reach a diagnosis of Adult Attention Deficit Hyperactivity Disorder (ADHD) and of Adjustment Disorder with Depressed Moods. According to Dr Pickering, the condition of ADHD is characterised by symptoms that include difficulties in self activation and organisation, in sustaining attention, energy and effort, and with memory recall as well as irritability and hypersensitivity, motor restlessness, impulsiveness, and mental hyperactivity. 38 He reported that the Respondent's ADHD did not manifest itself in areas of his life in which he was extremely interested, as these areas are not affected by the condition. He also reported that the Respondent was depressed and that this was a chronic adjustment disorder in response to various stressors in his life. He excluded any more serious depressive disorder. 39 Dr Pickering offered an opinion that the offences were "contributed to very largely" by the psychiatric disorders mentioned, and had been impulsive, that being a feature of ADHD. He also pointed out that the inability of the Respondent to explain why he had lit the fires was "absolutely typical of the kind of answer you'd get with ADHD". He similarly said that the stealing of the boat and trailer was a silly crime that was typical of the impulsiveness, disorganisation and other characteristics of ADHD. 40 In a report dated 13 September 2004, he confirmed that the Respondent had responded well to medication for the ADHD and suggested that if he continued with this medication this would "very greatly decrease" the chances of him engaging in future impulsive acts that would get him into trouble. 41 It was his assessment that the risk of reoffending was extremely low, provided the Respondent remained on medication. 42 At the request of the Crown, the Respondent underwent a psychiatric examination by Dr Bruce Westmore. He agreed that the Respondent had suffered depression in the past in response to stresses in his life, but noted that there was no record of him having experienced any episodes of major depression. On the basis of the single interview which he conducted with the Respondent, he was unable to confirm or exclude the diagnosis of ADHD, and said that his preferred diagnosis was one of Adjustment Disorder with Depressed Mood. To that extent he agreed with Dr Pickering. He said that even if he did have ADHD it was unlikely to have been the sole explanation for his behavioural problems. 43 Dr Westmore also said that until more was understood about the Respondent's personality strengths and vulnerabilities and the motivation for lighting the fires, his risks of reoffending could not be accurately determined. He agreed however that those risks might be reduced with regular psychiatric care and close monitoring by community based agencies. 44 In August 2004, the Respondent moved to Tarbuck Bay on the north coast of NSW with his parents, and commenced casual work as a labourer. He also completed a bartending course, joined the local church as well as a number of community clubs in the area and by the time he appeared for sentence he was hoping to obtain full time employment. He gave evidence of his intention to continue living with his parents in Tarbuck Bay and to continue to receive treatment from Dr Pickering. 45 The Respondent gave evidence of feeling very sorry for what he had done, and of still having a desire to help the community. 46 His mother gave evidence confirming a remarkable change in his behaviour since commencing the new medication, and there was also evidence from the father of a former school friend that was confirmatory of his remorse, as well as a body of favourable character evidence placed before his Honour.

THE CROWN APPEAL 47 The Appellant submitted that the sentences were manifestly inadequate and that there were a number of identifiable errors of law with respect to the sentencing process.

Ground 1: The Sentencing Judge failed to give reasons for his findings with respect to his decision to depart from the standard non-parole period for the offences contrary to the requirement of s 54B(4) of the Crimes (Sentencing Procedure) Act 1999.

Ground 2: The Sentencing Judge misapplied section 54B(2) of the Crimes (Sentencing Procedure) Act and failed to apply section 54B(3) of that Act. 48 His Honour dealt with the requirement that the court identify the reasons for increasing or reducing the standard non-parole period in the following passage: "The standard non-parole sentence is five years. I consider in the circumstances of this case and taking into account the submissions of counsel, that it is appropriate that the sentence to be imposed be less than the standard non-parole term. That is the view of the Court in relation to each of the counts." 49 I do not consider that this was a sufficient compliance with the requirements of s 54B(4). A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in a case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109. 50 The present case, it may be accepted, was one involving pleas of guilty, so that the role of the standard non-parole period was as a reference or check point: R v Way [2004] 60 NSWLR 168. That circumstance does not however lessen the obligation to give adequate reasons in relation to this aspect of sentencing. 51 The absence of sufficient reasons does not necessarily guarantee intervention by this Court. Whether it should do so, in this case, depends upon the remaining grounds.

Ground 3 - The sentencing Judge failed to impose sentences that adequately reflected the objective seriousness of the offences.

Ground 5 - The sentencing Judge erred in finding that the offences were impulsive acts. 52 These grounds can be conveniently dealt with together. 53 As the Crown asserted, in its written submissions, the sentencing Court was required to take into account the serious nature of these offences as reflected by the maximum penalty of imprisonment for 14 years: see R v Oliver (1980) 7 A Crim R 174 at 177 and R v Way, as well as the fact that the legislature had recently fixed a five year standard non-parole period for it. This latter circumstance provided an indication that sentences for the offence were expected to move upwards, consistently with the view taken by the community of its seriousness: see R v Slattery (1996) 90 A Crim R 519 at 524. 54 The potential consequences of such an offence for life and property, the clear legislative intention, and the fact that the Respondent lit more than one fire, the second of which led to a particularly serious conflagration, it was submitted, called for a substantial full time custodial sentence, notwithstanding the subjective circumstances that were demonstrated. 55 Of importance in an assessment of the Respondent's overall criminality are the circumstances that:

(a) On 8 January, he threw five Jiffy firelighters, which he had ignited, into two separate areas of bushland within a National Park;

(b) There was this day an interval between the time of throwing the firelighters into the area adjacent to McCarrs Creek Road, and into the area near the Mt Ellis Trig, allowing him time to contemplate what he had already done, and to decide upon its repetition;

(c) The conditions at the time of setting the Mt Ellis Trig fire were highly conducive to a major blaze, a matter of which he must have been aware, despite his somewhat disingenuous evidence to the contrary, having regard to his training as a rural fire fighter;

(d) The Mt Ellis Trig fire was particularly destructive, in that it occasioned major damage to the National Park, threatened lives and properties in the populated areas adjacent to the Park, led to injuries to several fire fighters, and wasted valuable resources;

(e) He engaged in conduct that was diametrically opposed to everything which was expected of a trained firefighter, in circumstances where, as his police interviews show, he was well aware of the potential harm which can be caused by bushfires;

(f) By the time that he lit the fires on 8 February, he was fully aware of the destruction, and the disruption to the lives of other fire fighters and of the Service, which his earlier conduct had caused, yet he proceeded intentionally, and deliberately, to light two further fires using Molotov cocktails which were potentially capable of igniting a significant conflagration even more rapidly than small Jiffy firelighters;

(g) When interviewed by police he initially told a series of lies, and persisted in some further lies when later interviewed, before finally accepting his responsibility, by which time it must have been obvious to him that police were aware of a number of inconsistencies in his story, a matter which showed an initial lack of remorse and contrition;

(h) His conduct was part of an ongoing course of serious criminality;

(i) The community entertains a very real concern in relation to bush fires, particularly where they are deliberately lit. 56 While the offences were committed without regard to public safety, that would appear to have been an inevitable element of the offence, which should not be given separate consideration as an aggravating circumstance within s 21A(2) of the Crimes (Sentencing Procedure) Act. The position is otherwise in relation to the second count, so far as s 21A(2)(g) is concerned since the harm occasioned was very substantial. 57 Notwithstanding, I am satisfied that the facts outlined, including the senseless and inconsiderate nature of the relevant acts, brought Counts 2 and 3 into the upper range of objective seriousness for the offence, subject only to the extent that the Respondent's self control and conduct may have been influenced by his mental state. 58 Although the Crown challenged the impulsivity finding by reference to the evidence that the Respondent had, in his motor vehicle, on each occasion, the means to light fires, that is the Jiffies on 8 January and the fuel contained in plastic Coke bottles, along with rags on 8 February. There was however evidence, which went uncontradicted, to the effect that his car was something of a "tip", and that both the firelighters and petrol had been there for purposes connected with his interest in camping, and his work. 59 Of more concern in relation to the compulsive/impulsive question is the fact that on each occasion the Respondent elected to drive through the National Park, and must have travelled some distance to do so, without any particular need for being there. He was in fact not able either in his interviews, or evidence, to supply any convincing reason for his presence in the park. 60 Impulsivity is a different concept from that of compulsivity involving some significant impairment of an offender's capacity for self control. The evidence does not here go so far. 61 Even giving the Respondent the full benefit of his Honour's finding of impulsiveness, it does not seem to me that his psychiatric state was such as to require any substantial mitigation of the seriousness of the offences. Nor would it seem did his Honour, in so far as he found that the impulsiveness of the Respondent's behaviour "did not excuse" them. 62 On the credit side, there were a number of persuasive mitigating circumstances within s 21A(3) that needed to be taken into account. They included the following:

(a) The Respondent's prior good character which apart from one minor matter had not seen him before the courts despite his somewhat unsettled background, and series of personal difficulties: s 21A(3)(e) and (f);

(b) The diagnosis of ADHD which has been made by Dr Pickering and of Adjustment Disorder with Depressed Mood, as to which there was agreement between Dr Pickering and Dr Westmore, and which has particular relevance for an assessment of his likelihood of reoffending and prospects of rehabilitation;

(c) The pleas of guilty which were offered at the earliest possible moment, which were indicative of remorse and contrition and had a substantial utilitarian value: s 21A(3)(k).

(d) The assistance which he had ultimately given in confessing to his involvement in the offences, at a time, however, when police were obviously suspicious of his role and were conducting or contemplating further inquiries, including forensic inquiries, in order to identify the culprit: s 21A(3)(m);

(e) His genuine expressions of remorse since being charged with the offences as well as that which was earlier indicated by his attempt at suicide, which in fact seems to have been more of a cry for help: s 23A(3)(i);

(f) The positive steps he has made towards rehabilitation, following the change in his medication, as indicated by his improved attitude and behaviour, by his involvement in community activities in the area to which he has relocated, and by his efforts to establish himself in meaningful employment: s 21A(3)(h);

(g) The low probability of him reoffending, so long as he continues on his medication and otherwise receives appropriate psychiatric care and supervision; s 21A(3)(g);

(h) The absence of any cogent evidence of significant pre-planning on his part: s 21A(3)(b). 63 The case is one that properly called for the elements of personal and general deterrence to be given particular weight. The former was important to reinforce the need for the Respondent to adhere to his treatment regime; and the latter was important so as to provide a clear message that substantial custodial sentences will accompany the commission of this offence, thereby deterring others from the particularly dangerous form of conduct that it involves. The observations of Von Doussa J in R v Simpson SA Court of Criminal Appeal 27 November 1987 at 8, to similar effect, are not only pertinent but they are clearly correct. 64 It is well established, where an offender is suffering from some form of psychiatric disorder or condition, particularly one that may significantly reduce inhibitions or self control, that the element of general deterrence is of lesser importance. That follows from the circumstance that the community will understand the reasons for the offending and will not regard the offender as a suitable vehicle for being held up as an example to others: R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri NSWCCA 18 March 1992 and R v Engert (1995) 84 A Crim R 67. 65 It is true that in R v Dunn [2003] NSWCCA 169 this court did not regard an offender who was suffering from Attention Deficit Hyperactivity Disorder as attracting an application of these principles. I would not however regard that decision as authority for such a proposition in absolute terms. Rather I believe it to be a matter to be determined upon the facts of any given case, including any available evidence as to the severity of the condition and the presence of any associated condition, such as the Adjustment Disorder which was here diagnosed. 66 Its relevance here has, in my view, more force that was the case in Dunn, in so far as there was evidence available to show that the Respondent's record for somewhat unacceptable behaviour, and for impulsivity are capable of management, thereby giving some prominence in the sentencing exercise, to the object of rehabilitation. 67 A submission was advanced to the effect that his Honour may have approached the sentencing exercise by determining that the case should, in its somewhat exceptional circumstances, be dealt with by way of periodic detention, and then settled upon an overall sentence that would permit of such a disposition. Had his Honour done so that would have fallen foul of the proper approach to sentencing discussed in R v Zamagias [2002] NSWCCA 17 at [26]. In the absence of some clear indication to that effect, I would not be prepared to make an assumption that his Honour, a very experienced trial judge, fell into that error. 68 It must however be accepted, for the reasons identified in R v Hallocoglu (1992) 29 NSWLR 67 and R v Pont (2000) 121 A Crim R 302 that periodic detention involves a form of imprisonment that is considerably less onerous than one of full time imprisonment. 69 The circumstances of this case are such that, in my view, it was not appropriate for sentences involving periodic detention. I am forced to the conclusion that error of the kind referred to in R v Dodd (1991) 57 A Crim R 349 at 354 occurred, in so far as undue attention was given to the Respondent's subjective considerations, and to the interests of rehabilitation, at the expense of the serious objective circumstances that were present and to the objectives of retribution, deterrence and denunciation. As a result this ground is made good.

Ground 4: The sentencing Judge failed to consider totality principles and erred by determining that the sentences should be served concurrently. 70 It was submitted that, having regard to the break between the offences the subject of Counts 1 and 2, and the passing of a further month before the fire the subject of Count 3, there should have been some accumulation of sentence in accordance with the totality principles noted in Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR, 616, of which no mention was made by his Honour. 71 The case was appropriate for some degree of accumulation and the absence thereof seems to me also to have involved an error.

Ground 6: The sentencing judge erred in applying the discount for the guilty plea to the non-parole period for each offence. 72 A submission was made to the effect that the approach which his Honour took, which had also been taken by this Court in R v Tuncbilek [2004] NSWCCA 139 was in error, and that the discount should have been applied to the full term of the sentence rather than the non-parole period, as is contemplated by s 22 of the Crimes (Sentencing Procedure) Act. 73 It was conceded that, in the sentencing proceedings the Crown had supported the approach taken by his Honour, and it was not suggested that, if there was an error, it contributed to any inadequacy in the sentence. 74 The present case is not an appropriate vehicle for determination of the issue, if in fact it is one of significance, and I do not propose to make further reference to it.

DISCRETION 75 The principles relevant to Crown appeals were summarised in R v Wall [2002] NSWCCA 42 where I observed at [70]: "70 … it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle " for the governance and guidance of courts having the duty of sentencing convicted persons ": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 76 In determining whether the Court should intervene it is necessary to take into account the fact that the Respondent has served almost four months of the sentence of periodic detention. Additionally it is necessary to take into account the evidence which shows that, by reason of the nature of his offences, he was not well received by other prisoners, who saw it as appropriate to subject him to threats and harassment at the Tomago Periodic Detention Centre on the occasion of his first attendance. This led to a change in his security assessment, and of the Centre which he had thereafter attended, requiring a somewhat longer journey each weekend to Tamworth. There was also evidence confirmatory of his positive response to the medication, and of his continued involvement in local community, church, and work activities. 77 Making full allowance for all of these matters, I remain of the view that the sentences were so lenient that the Court should intervene and resentence the Respondent, notwithstanding the residual discretion that it has. The substituted sentences should however reflect the least sentences that could appropriately have been set at first instance. 78 I am persuaded, in this respect that they should involve sentences requiring full time custody. I would, however, find special circumstances justifying a considerable variation of the statutory ratio between the non-parole period and the balance of the term, by reason of the age of the Respondent, his diagnosed condition of ADHD and Adjustment Disorder resulting in a need for continuing monitoring and medication, his history of self harm, the interests of encouraging his rehabilitation and the fact of accumulation, which I consider necessary. He is entitled to a discount at the upper end of the range identified in R v Thomson and Houlton for his pleas, his remorse, and his willingness to facilitate the course of justice. 79 I propose the following orders:

3. In lieu thereof substitute the following sentence: (a) Count 3: Imprisonment for a fixed term of 1 year to commence 6 May 2005; (b) Count 1: imprisonment for a fixed term of 1 year to commence 6 November 2005; (c) Count 2: Non-parole period of 2 years and 2 months commencing 6 November 2005 and expiring on 5 January 2008; with a balance of term of 2 years and 6 months commencing on 6 January 2008.

4. The earliest date of eligibility for parole is specified as 5 January 2008. 80 The overall term is accordingly one of imprisonment for 5 years and 2 months with a minimum period of imprisonment of 2 years and 8 months to date from 6 May 2005, to be served by way of full time detention. 81 GROVE J: I agree with Wood CJ at CL. 82 HOEBEN J: I agree with Wood CJ at CL.

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