Robson v The Queen [2018] VSCA 256

CRIMINAL LAW - Community correction order - Whether electronic monitoring can be ordered under s 48LA of Sentencing Act 1991 in relation to alcohol exclusion condition imposed under s 48J.

CRIMINAL LAW - Compensation order - Whether sentencing court has jurisdiction to make compensation order in favour of Country Fire Authority to recover costs of extinguishing fire - Sentencing Act 1991 pt 4 divs 2 and 2B.

1 The appellant pleaded guilty to the charges set out in the table below and, on 25 August 2017, he was sentenced as set out in that table.[1]

Intentionally causing a bushfire [Crimes Act 1958 s 201A]

2 years, 6 months and a community correction order ('CCO') for 3 years, 9 months

Drive while authorisation suspended [Road Safety Act 1986 s 30(1)]

Total Effective Sentence: 3 years, 9 months' imprisonment combined with a CCO for 3 years, 9 months

6AAA Statement: 5 years, 6 months' imprisonment combined with a CCO for 4 years

Other relevant orders: Sentenced as a serious arson offender in respect of charges 1 and 2 pursuant to pt 2A of the Sentencing Act 1991. Compensation order for the amount of $522.32 in favour of the Country Fire Authority ('CFA').

2 On 21 December 2017, Priest JA granted the appellant leave to appeal against his sentence on the following ground:

The individual sentences (including the terms of imprisonment and the [CCO] imposed), the order for cumulation and the total effective sentence imposed are each manifestly excessive.

Particulars:

(a) The sentences imposed were disproportionate to the gravity of the offending.

(b) The sentencing judge gave manifestly insufficient weight to the applicant's early pleas of guilty, remorse, efforts towards rehabilitation and to the fact that the applicant has been held in protective custody.

3 The Crown filed a detailed written case arguing that no aspect of the sentence was manifestly excessive. However, in oral submissions, counsel for the Crown did not pursue those arguments. Without formally conceding that the individual sentences for charges 1 and 2 and the total effective sentence were manifestly excessive, counsel expressed 'significant concerns' about the severity of the sentences.

4 For the reasons that follow, the appeal will be allowed and the appellant will be resentenced as set out at [70] below.

5 On 15 October 2015, at approximately 9:20 am, the appellant left his home in Sunbury and walked with his two dogs to a nearby park reserve at the end of Mowbray Court. He walked a short distance into the reserve, to the area at the rear of 11 Mowbray Court. There he lit a firelighter among the leaf litter, bark and dry twigs at the base of a large eucalyptus tree, using either a match or a cigarette lighter ('first fire') before walking away (charge 1).

6 At approximately 9:30 am, two people who were walking through the reserve saw the first fire. They successfully extinguished it using a water bottle and by stamping it out. They did not see anyone else in the area around the fire.

7 At approximately 9:40 am, the appellant returned to the area behind 11 Mowbray Court, lit leaf litter, bark and dry twigs at the base of another eucalyptus tree ('second fire'), and then walked home (charge 2). The eucalyptus tree was about 9 metres away from the location of the first fire.

8 The individuals who had extinguished the first fire saw the second fire when they walked back through the reserve. The second fire was burning more intensely and they were not able to put it out. At about the same time, a nearby resident unsuccessfully attempted to put it out using a shovel. The CFA was then contacted and it extinguished the second fire.

9 A total fire ban had not been declared on the day of the fires. At 9:00 am, the temperature in the area where the fires were lit was 21.7 degrees Celsius with humidity of 49 per cent. A northerly wind was blowing at approximately 35 kilometres per hour. The maximum temperature in the area of the fires reached 34.1 degrees Celsius that day.

10 On 17 October 2015, a forensic arson chemist attended the scene of the fires and noted that the area where the fires occurred was 'quite well grassed, and neatly mown, with medium to full grown eucalypts scattered along both sides'. Both fires were at the base of a eucalyptus tree. At ground level, the first fire was confined to 1 square metre and it had spread a short way up the trunk of the tree. The remnants of a partially burnt firelighter were located at the base of that tree. The breadth of the second fire at ground level was 2 square metres, and it had spread approximately 1 metre up the trunk of the tree. The limited spread of the fires suggested that they were extinguished quickly.

11 In a report dated 4 April 2017, Ross Brogan, a certified fire investigator, estimated that, at the time the fires were lit, the risk of them spreading at ground level was low. However, he stated that if it had not been discovered, the second fire, which travelled up the trunk of the tree, may have spread further and reached the tree canopy and intensified and spread to adjoining canopies or other nearby structures.

12 Garry Cook, the Acting Deputy Chief Officer of the CFA provided a victim impact statement in which he stated that the costs for the CFA's attendance to extinguish the second fire totalled $522.32.

13 The appellant was arrested on 20 October 2015 and gave a 'no comment' interview.

14 As a result of these offences, police obtained CCTV footage that showed the appellant driving a motor vehicle on three separate days during a period when his authorisation to drive was suspended (summary charges 14-16).

15 The appellant was 47 years old at the time of the offending and 49 when he was sentenced.

16 He was raised in central Victoria and is the second of three brothers. His father left the family home when he was 6 years old, and he did not see his father again until he was 17. From when he was about 8 years old, until he was about 14, the appellant's maternal grandfather sexually abused him once or twice per week. His mother was an alcoholic. She introduced him to alcohol when he was 9 years old.

17 The appellant left school when he was 14 years old, having completed Year 8. He moved to Melbourne and obtained work loading trucks on the wharves at Footscray. He worked there for approximately three years before working as a storeman in a warehouse in Fitzroy, where one of his brothers also worked, for four years.

18 The appellant married in 1992 but the relationship ended in 1994. He then obtained employment as a machine operator at a quarry in Dookie. While in the Dookie area, he had a de facto relationship with a woman who gave birth to a daughter in 1994 and a son in 1996.

19 That relationship came to an end after about 5 years. The appellant did not have any contact with his children after the separation, however he re-established a close relationship with his daughter while she was about 14 years old and since being in custody for the current offending he has resumed contact with his son. His children are supportive of him. The appellant is a grandfather to his daughter's two young children.

20 After working at the quarry, the appellant returned to central Victoria and worked at an automotive cabling company for approximately one year, before obtaining employment as a truck driver. He was in another de facto relationship which ended in 2001.

21 In 2003, the appellant was admitted to Bendigo Hospital for psychiatric treatment. He was prescribed medication for depression and anxiety to help stabilise his mood and reduce anxiety.

22 The appellant worked as a truck driver for two companies, for nine and seven years respectively, until 2007, when he was injured in a workplace accident, in which a piece of furniture crushed his leg. The appellant required a knee reconstruction and he has been unable to work since. He was in receipt of WorkCover payments from the time of the accident until his arrest for the current offending.

23 The appellant's father passed away in 2010. He has been estranged from his mother for approximately 20 years as a result of her failure to protect him from abuse by his grandfather. He does not have any contact with his brothers.

24 The appellant has a history of alcohol abuse. He began drinking on a daily basis from his early teenage years. His alcohol consumption escalated after his workplace injury in 2007. By the time of the offending, he had a severe alcohol dependency and was drinking from 6 am until 8 pm each day, on some days consuming two slabs of beer. He experienced severe withdrawal symptoms and required medical assistance when he was taken into custody for the current offending. He has remained sober since being remanded in custody and has expressed a determination to abstain from alcohol. He has also stated that he intends to join Alcoholics Anonymous and participate in other alcohol abstinence programs.

25 In 2015, prior to the current offending, the appellant suffered a stroke and was diagnosed with epilepsy. It was this diagnosis that led to the withdrawal of his authorisation to drive. In 2016, he suffered a second stroke. He has also had several autogenic seizures while in custody. He has a heart condition and has suffered heart attacks in 2003 and 2012. He is also suffering from sight deterioration in his left eye. Since being placed in custody, he has been prescribed anti-depressants.

26 At the time of the offending, the appellant was living with his de facto partner, with whom he had been in a relationship for approximately 10 years. He has not had any contact with her since his arrest.

27 The appellant has remained in protective custody since his arrest, due to the extensive media coverage that his offending received. During that time he has been employed as a machine operator.

28 The appellant has a lengthy history of prior offending, commencing in 1985 when he was 17 years old. Since that time, he has been dealt with for a large number of motor vehicle offences, including speeding, driving an unregistered vehicle, driving while exceeding the prescribed concentration of alcohol, driving with an obscured number plate, and driving while his authorisation was cancelled.

29 On 14 October 1985, the appellant was sentenced to probation for 18 months, with the condition that he abstain from consuming alcohol, for theft of a motor vehicle. He was sentenced to 16 months' probation on 2 December 1985 for handling stolen goods, attempting to obtain property by deception, and theft from a motor vehicle. On 26 May 1986, he was sentenced to a total of 3 months to be served by way of an attendance centre order for the offences of burglary, theft, and wilfully damaging property.

30 On 4 October 1990, the appellant was placed on a community based order for 1 year for the offence of threatening to inflict serious injury. On 24 June 1993, he was sentenced to 16 months' imprisonment with a non-parole period of 9 months for the offence of negligently causing serious injury, in which he was the driver of a car involved in a serious accident.

31 On 14 May 2001, the appellant came before the Sale County Court on five charges of arson. The circumstances of that offending were that, on 10 February 2000 - which was a total fire ban day with a temperature of 36 degrees Celsius - the appellant lit four fires in a heavily timbered area of the country between Woodend and Mount Macedon, before lighting a fifth fire on the outskirts of Woodend. He was observed leaving the area and the fires were quickly extinguished. He was sentenced to a total effective sentence of 4 years' imprisonment with a non-parole period of 2 years and 9 months.

32 On 23 April 2012, the appellant received a sentence of 1 month's imprisonment, suspended for a period of 6 months for the offences of wilfully damaging property and using indecent language in a public place. On 6 September 2013, he was sentenced to 1 month's imprisonment, suspended for a period of 9 months, for the offences of unlawful assault and assaulting a police officer.

33 Two forensic psychological reports from Professor James Ogloff, dated 23 February 2017 and 21 April 2017, were tendered on the plea. The appellant told Professor Ogloff that when he entered the park reserve on the morning of 15 October 2015: he saw an elderly man depositing bark mulch around the base of the trees, which made him angry; the man reminded him of his grandfather; he threatened to report the man to the local council if he did not stop what he was doing; the man refused to stop and said something the appellant's grandfather used to say, namely, that no one would believe him; he lit the first fire shortly after that conversation; and he lit the second fire after having noticed that the first fire had been extinguished.

34 Professor Ogloff's opinion was that the appellant's intellectual functioning is in the low average to average range. He said that the appellant presents with a socially inadequate personality, in that he experiences considerable anxiety in social situations and has difficulty interacting with others in normal, socially acceptable ways.

35 Regarding the reasons for the appellant's arson offences, Professor Ogloff opined that the appellant was not a pyromaniac but an 'expressive arsonist'. This meant that the appellant's fire setting can be linked to dysfunctional emotional expression arising from his general social inadequacy. Professor Ogloff said that this was consistent with the appellant feeling frustrated, angry or particularly inadequate at the time of the fire lighting, and also with the appellant having had long periods of time when he has not set fires.

36 Since he has been incarcerated, the appellant has been treated on more than 40 occasions by Dr Sam Minghe, a senior psychologist with the Mobile Forensic Mental Health Service. This is the first time that he has received ongoing, intensive intervention for the array of difficulties he has experienced. Professor Ogloff stated that, during that time, the appellant has made considerable gains in treatment, including developing increased emotional regulation of his underlying issues, such as childhood abuse and sexual abuse.

37 Professor Ogloff's opinion was that, to the extent that Dr Minghe is able to assist the appellant to regulate his emotions, he will no longer need to resort to dysfunctional behaviour which partly contributes to his fire setting. He stated that the appellant has shown good insight into the factors underpinning his offending, namely that it is a product of a dysfunctional coping response, and has made good progress in treatment intended to provide him with appropriate coping strategies.

38 Professor Ogloff viewed the appellant's prospects of rehabilitation as good. However, he also assessed the appellant's risk of any offending - not only committing acts of arson - to be medium to high level. He stated that the likelihood of the appellant committing further offences of arson will largely be dependent on his capacity to regulate his emotions and control his alcohol abuse.

39 Professor Ogloff said that the appellant has completed two substance misuse courses while in prison, and has showed good insight into the detrimental effects of alcohol on his life and behaviour.

40 Professor Ogloff gave oral evidence on the plea that was consistent with his two reports. He said that the large number of treatment sessions which the appellant has had with Dr Minghe is 'very very rare' and 'very unusual'[2] and that there are no offence-specific programs for arsonists in prison.

41 The judge assessed the seriousness of the arson charges by reference to both the potential for harm arising from the fires, and the magnitude and extent of the actual fire damage. He found that the actual harm caused by the fires was minimal but that, as both fires were lit near eucalyptus trees, they were objectively serious and carried at least a medium risk of harm to nearby property and a real risk that both fires could have spread if not extinguished. He assessed the second fire as more serious than the first fire.

42 The judge stated that denunciation, general deterrence, specific deterrence and protection of the community were relevant sentencing considerations. Due to his history of prior offending, the appellant fell to be sentenced for charges 1 and 2 as a serious arson offender and therefore protection of the community was the principal sentencing purpose.[3] The judge also stated that, in those circumstances, the principle of totality was more limited.

43 The judge had regard to the appellant's early pleas of guilty, including for their utilitarian benefit, which entitled him to a significant discount on his sentence. He found, on the basis of those pleas and the long course of rehabilitation on which the appellant had embarked while in prison, that the appellant had shown some remorse for his actions. Also by way of mitigation of sentence, the judge had regard to the fact that the appellant had been placed in protective custody, and would remain in protective custody for the foreseeable future.

44 The judge took into account that the appellant had been subjected to sexual abuse for six years during his childhood, which had been a factor in his emotional dysfunction. He also had regard to the appellant's alcohol abuse, and physical and mental health issues.

45 The judge stated that the appellant had shown a determination to light multiple fires in the current and the 2001 arson offending, and his Honour noted similarities between the two sets of offending. He found, on the basis of Professor Ogloff's evidence, that the appellant was an expressive arsonist and, despite the support of his children, there was a 'medium to high risk of reoffending'.[4] He stated that 'a high degree of caution is needed' regarding the appellant's prospects of rehabilitation, but noted that the appellant had voluntarily commenced a substantial period of counselling while in custody and that Professor Ogloff's opinion was that such strong motivation to control emotional responses was rare.[5] He concluded that the appellant had 'at least ... some prospects of rehabilitation'.[6]

46 The judge said that, in the light of both the appellant's prior history of arson and recent 'considerable efforts ... to rehabilitate', protection of the community was best served by a combination sentence that would allow the appellant to benefit from treatment programs specific to arson and alcohol abuse while subject to a CCO.[7] The judge had regard to Professor Ogloff's evidence that no offence-specific programs for arsonists exist in the prison system.

47 Accordingly, the CCO imposed by the judge included conditions requiring supervision, alcohol assessment and treatment, mental health assessment and treatment, and participation in programs and courses relating to his offending behaviour. In addition, the CCO included an alcohol exclusion condition, requiring the appellant not to, at any time, enter or remain in any licensed premises characterised as a nightclub, bar, restaurant, café, reception centre or function centre, in the location of any major event, in the bar area of any other licensed premises, or to consume liquor in any other licensed premises.

48 The appellant submitted that, when regard is had to the objective and subjective sentencing considerations relevant to his offending, the sentence was manifestly excessive. He contended that was so in light of Professor Ogloff's reports, which detailed the progress he had made in regulating his emotions and gaining insight into his offending behaviour, and his history of abuse, memories of which had been triggered on the morning of the offending. He argued that his background of abuse was relevant to his offending in the sense that it contributed to the development of his psychological issues, which in turn underpin his alcoholism and offending conduct.

49 Regarding the objective features of his offending, the appellant submitted that: the first fire was very small; the second fire, while causing some damage to the eucalyptus tree, did not cause any real property damage; and Mr Brogan had not considered that the fire would spread rapidly. He conceded that a higher degree of culpability attached to the second fire than the first, because he lit it after he discovered that the first fire had been extinguished, but contended that his offending could nevertheless be distinguished from objectively more serious offending, for example fires lit on total fire ban days that cause actual damage.

50 Finally, the appellant submitted that the conditions of the CCO, particularly the alcohol exclusion order, involve a punitive element, rather than being purely rehabilitative. That is especially so, he contended, when regard is had to the length of the CCO. Accordingly, so he said, although a combination sentence was appropriate, the length of the custodial sentence imposed, and the total period of 7 years and 6 months during which his liberty will be affected, are excessive.

51 The Crown conceded that there was 'a great deal of force' in some of the appellant's submissions, and that it held 'significant concerns' about the sentence imposed which would require the appellant to serve 3 years and 9 months before commencing the CCO of the same duration. However, the Crown did not formally concede that the sentence imposed was manifestly excessive, and contended that the judge had not erred in his treatment of the subjective features of the offending.

52 The Crown submitted that the first fire should properly be classified as falling at the lower end of the range of seriousness because it was small and capable of easy extinguishment. It argued that the second fire was more serious, and the appellant's culpability in relation to it was higher, but also contrasted the small size of the fires, as evidenced by photographs of the fire sites, with more serious offending.[8] The Crown also contrasted the offending with the appellant's 2001 arson offending, the risk of which the judge in that case had found to be 'almost incalculable'.[9]

53 The Crown submitted that, if the sentencing discretion is reopened, the compensation order in favour of the CFA ought not be made. It contended that no section of the Sentencing Act permits a compensation or costs recovery order to be made in favour of the CFA in the circumstances of this case.

54 In our opinion, the ground of manifest excess must be upheld.

55 We commend counsel for the Crown for the fair and impartial manner in which he presented the Crown's case and for conceding that the Crown held significant concerns about the severity of the sentence. That concession was entirely appropriate.

56 When regard is had to the punitive nature of a CCO,[10] the effect of the total effective sentence is to deprive the appellant of his full right to liberty for 7 years and 6 months. This period is entirely disproportionate to the gravity of the offending and indicates that the judge gave inadequate weight to the principle of totality[11] and the powerful mitigating circumstances on which the appellant relied.

57 The deliberate lighting of any fire in a park reserve on a hot and windy day is always serious. However, the photographs of the park reserve in the present case indicate that the area where the appellant lit the two fires comprised trees located several metres apart with an absence of long grass or scrub. This landscape reduced the risk of fire spreading at ground level. The risk of the fire spreading was greater if the fire reached the canopy of a tree and the consequences of the fire spreading rapidly were very serious as the park reserve was close to residential properties.

58 Given the physical environment, the first fire was not high on the spectrum of seriousness: it was confined to a limited area at the base of the eucalyptus tree and was able to be extinguished easily by two passers-by equipped with no more than a water bottle. The risk of the fire spreading was low. In these circumstances, it was not reasonably open to the judge to sentence the appellant to 2 years and 6 months' imprisonment combined with a CCO for 3 years and 9 months for that fire.

59 The second fire was more serious than the first fire because it spread more widely at the base of the eucalyptus tree and up its trunk, and could not be extinguished by the two passers-by and the local resident who came out to assist. The risk of this fire spreading was greater. The appellant's moral culpability for the second fire was also greater because he started it after discovering that the first fire had been extinguished. Nevertheless, the sentence of 3 years' imprisonment combined with a CCO for 3 years and 9 months was too severe relative to the seriousness of the offending and the appellant's moral culpability.

60 We accept that the appellant has an extensive criminal history and fell to be sentenced as a serious arson offender in accordance with pt 2A of the Sentencing Act. Accordingly, protection of the community and specific deterrence were paramount sentencing considerations. However, the appellant was entitled to significant moderation of his sentence due to a number of important mitigating circumstances. He pleaded guilty. He was remorseful. He had family support from his children. He had experienced a traumatic upbringing. While on remand, he gained insight into the link between his mental illness and consumption of alcohol and his offending. He made extensive efforts to rehabilitate himself while on remand, including attending a large number of counselling sessions (which Professor Ogloff described as very rare), and abstaining from alcohol consumption. Some moderation was also warranted due to the appellant being held in protective custody. Although the judge referred to these mitigating circumstances, the severity of the sentence he imposed indicates that he gave insufficient weight to them.

61 The judge was right to impose a combination sentence and to include in the CCO stringent conditions to limit the opportunities for the appellant to consume alcohol and ensure that he receives treatment to address the underlying causes of his offending.[12] However, for the reasons we have given, both the custodial and CCO components of the sentence were too severe.

62 The sentences imposed by the judge were inconsistent with current sentencing practices. While so-called comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case,[13] some assistance is afforded in the present case by a review of three cases. They are Director of Public Prosecutions v Saxe,[14] Lisle v The Queen,[15] and Director of Public Prosecutions v Ganon.[16]

63 In Saxe, the offender, a 77-year-old CFA member, pleaded guilty to four charges of intentionally causing a bushfire and one charge of recklessly causing a bushfire. The fires covered larger areas than in the present case and all but two of them required the attendance of the CFA to extinguish them. One of the fires caused damage to fencing and vegetation. The fires were lit on days of very high or extreme fire danger. The last fire was lit while the offender was on bail for the earlier charges. The offender suffered from post-traumatic stress disorder and depression. He did not have relevant prior convictions. He was sentenced to 15 months' imprisonment for charge 1 (with cumulation of 3 months), 2 years' imprisonment for each of charges 2, 3 and 5 (with cumulation of 6 months, 6 months and 3 months, respectively) and 2 years and 3 months' imprisonment for charge 4 (base sentence). The total effective sentence was 3 years and 9 months' imprisonment, and a non-parole period of 16 months was fixed.

64 In Lisle, the 41-year-old offender had set fire to toilet rolls and papers on a wooden clipboard at Crown Casino. The final fire involving the clipboard was lit in a 'staff only' area of the Casino. He pleaded guilty to three charges of arson and one charge of burglary. He had relevant prior convictions: in 2011, he was sentenced to 3 years and 10 months' imprisonment for nine charges of intentionally causing a bushfire and other offences. For the offending at Crown Casino, he was sentenced to 5 years' imprisonment with a non-parole period of 3 years in combination with a CCO for 7 years. This Court held that the sentence was manifestly excessive and resentenced the offender to a total effective sentence of 3 years and 6 months' imprisonment with a non-parole period of 2 years. The individual sentences for the arson charges were 18 months' imprisonment for each of charges 1 and 2 (with 9 months' cumulation for each charge) and 2 years' imprisonment for charge 4 (base sentence).

65 In Ganon, the 41-year-old offender pleaded guilty to six charges of intentionally causing a bushfire - all of which were rolled-up charges covering the lighting of multiple fires - and other charges. The fires were lit between 4 and 14 January 2017 and burnt approximately 431,274 square metres of grassland, including native conservation areas. The fires posed a risk to nearby residential and commercial buildings, residents, members of the public and emergency service workers. The offender had an extensive criminal history but not for arson. He was sentenced to a total effective sentence of 5 years' imprisonment with a non-parole period of 3 years and 4 months. That sentence comprised 2 years' imprisonment on each of charges 1 and 2 (with cumulation of 6 months for each charge), 1 year for each of charges 3 and 5 (with no cumulation), 3 years' imprisonment for charge 4 (base sentence) and 30 months' imprisonment for charge 6 (with cumulation of 1 year). This Court rejected the offender's contention that the sentences were manifestly excessive.

66 Our review of the above cases confirms our conclusion that the individual sentences, order for cumulation and total effective sentence are manifestly excessive. This is because the cases demonstrate that, even though they each involved more serious offending than the appellant's offending, most individual sentences tended to be much less than 3 years' imprisonment and none of them even remotely approached 3 years' imprisonment combined with a CCO of 3 years and 9 months. The total effective sentence imposed in the present case stands out as being entirely outside the range of sentences reasonably open to the judge.

67 We have received a pre-sentence report dated 3 October 2018 from Corrections Victoria which assessed the appellant as suitable for a CCO. We have had regard to the contents of the report.

68 The report recommended that any CCO that is imposed by this Court should contain, in addition to the mandatory conditions, those conditions set out in the CCO imposed by the judge. The report also recommended that there should be electronic monitoring of the appellant's compliance with the alcohol exclusion condition. In our opinion, electronic monitoring cannot be ordered under s 48LA of the Sentencing Act in relation to an alcohol exclusion condition imposed under s 48J. This is because s 48LA(1) refers to a 'monitored condition' which is defined in s 3(1) as 'a curfew condition' and 'a place or area exclusion condition'. A curfew condition is provided for in s 48I and a place or area exclusion condition is provided for in s 48H.

69 Even if electronic monitoring can be ordered under s 48LA in relation to an alcohol exclusion condition imposed under s 48J, the Court does not have power to do so in the present case. This is because the pre-sentence report does not include the positive statement required by s 48LA(4)(a). Section 48LA(4) provides:

A court may only attach an electronic monitoring requirement to a monitored condition if -

(a) the pre-sentence report in respect of the offender includes a positive statement that -

(i) having had regard to the circumstances of the offender's residence, the offender is a suitable person to be electronically monitored; and

(ii) appropriate resources or facilities are available to enable the offender to be electronically monitored; and

(b) the court is satisfied that -

(i) the offender is a suitable person to be electronically monitored; and

(ii) it is appropriate in all of the circumstances that the offender be electronically monitored; and

(iii) appropriate resources or facilities are available to enable the offender to be electronically monitored.

70 Having regard to the above discussion, the appellant will be resentenced as follows:

2 years and 3 months and a CCO for 2 years, 6 months[17]

Total Effective Sentence: 2 years, 9 months' imprisonment with a CCO for 2 years, 6 months

71 It will be noted in the records of the Court that, in relation to charges 1 and 2, the appellant has been sentenced as a serious arson offender. In accordance with s 6D of the Sentencing Act, we have had regard to the protection of the community as the principal purpose of sentencing the appellant but have not imposed a disproportionate sentence. We have 'otherwise directed' for the purposes of s 6E of that Act, that is, we have not directed that the entirety of the sentence for charges 1 and 2 be served cumulatively.

72 In Tannous v The Queen,[18] this Court considered whether the recent amendments to ss 11 and 44 of the Sentencing Act leave open the option of a non-parole period being fixed where an offender is sentenced to a combination sentence of imprisonment and a CCO for arson offences.[19] The Court stated that the better view is that this was not the intended outcome of the amendments or, at least, not the intended outcome in every case.[20] With respect, we agree.

73 Even if the option of fixing a non-parole period remains when a combination sentence is imposed, it is not appropriate to adopt that option in the present case in the light of the nature of the offending and the past history of the appellant. In our opinion, the underlying causes of the appellant's offending, namely, mental illness and alcohol addiction, will be best addressed if there is certainty about the duration of his incarceration, and any practical problems arising from the appellant being simultaneously subject to parole and a CCO are avoided.[21] A CCO offers greater flexibility than parole in moulding the terms of the conditions of the appellant's supervised release in the community to meet his specific rehabilitation needs.

74 We have determined that the CCO we impose will contain the same conditions as the CCO imposed by the judge. We do not accept the appellant's submission that the duration of the alcohol exclusion condition should not subsist for the entire term of the CCO. Having regard to the role of alcohol consumption in the appellant's offending, it is necessary to limit the opportunities for the appellant to consume alcohol for the entire term of the CCO.

75 Pursuant to s 6AAA of the Sentencing Act, a declaration will be made that, but for the appellant's plea of guilty, we would have sentenced him to a total effective sentence of 4 years' imprisonment in combination with a CCO for 4 years.

76 We agree with the Crown's submission that there was no statutory authority for the compensation order for $522.32 that the judge made in favour of the CFA. The CFA did not suffer the type of loss that is the subject of the victim compensation scheme in div 2 of pt 4 of the Sentencing Act. While div 2B of pt 4 contains cost recovery provisions, they are limited in scope and do not apply to arson offences. Accordingly, the compensation order will be set aside.

77 As at today's date, the appellant has been in custody for 2 years, 9 months and 10 days. Accordingly, he is immediately eligible for release and to commence serving the CCO upon his release.

[1] DPP v Robson (Unreported, County Court of Victoria, Judge Hicks, 25 August 2017) ('Sentencing remarks').

[2] Transcript of Proceedings (26 April 2017) 57.

[3] Pursuant to s 6B(2) of the Sentencing Act, an offender is a serious arson offender if he or she 'has been convicted of an arson offence for which he or she has been sentenced to a term of imprisonment ...'. Section 6D(a) provides that when sentencing a serious arson offender, a sentencing court 'must regard the protection of the community from the offender as the principal purpose for which sentence is imposed'. Section 6E provides that, unless the court otherwise directs, sentences imposed on a serious arson offender must be served cumulatively.

[7] Sentencing remarks [130]-[131], [134].

[8] The Crown referred to Ganon v The Queen [2018] VSCA 110 ('Ganon') which is discussed at [65] below.

[9] Transcript of Proceedings, R v Robson (County Court of Victoria, Judge Ross, 14 May 2001) 2.

[10] See Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 331 [91]-[94], 335 [113], 337 [124]-[126], 340 [138], 342 [152].

[11] The presumption of cumulation in s 6E of the Sentencing Act limits but does not exclude the principle of totality in the case of a serious arson offender: see R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 476-7 [76].

[12] See Tannous v The Queen [2017] VSCA 91 [48] ('Tannous').

[13] See Djordjic v The Queen [2018] VSCA 227 [74]; Sutic v The Queen [2018] VSCA 246 [97].

[14] [2014] VCC 605 ('Saxe').

[15] [2017] VSCA 4 ('Lisle').

[16] [2018] VSCA 110.

[17] In the case of arson offences, s 44(1A) of the Sentencing Act enables a CCO to be combined with any period of imprisonment.

[18] [2017] VSCA 91.

[19] Tannous [2017] VSCA 91 [60]-[68].

[20] Tannous [2018] VSCA 91 [66].

[21] See Tannous [2018] VSCA 91 [67]-[68].