Sullivan v The King [2025] NTCCA 4

AB v The King [2023] NTCCA 8; Ajax v The Queen [2006] NTCCA 12; Aung v The State of Western Australia (2022) WASCA 175; Barr v The Queen [2003] NTCCA 2; Cheung v The Queen [2001] HCA 67; [2001] 209 CLR 1; Mason v The King [2024] NTCCA 13; The Queen v Kilic (2016)259 CLR 256; Markarian v The Queen (2005) 228 CLR 357; The King v Mamarika [2024] NTCCA 5; The Queen v Rindjarra [2008] NTCCA 9; Truong v The Queen [2015] NTCCA 5; (2015) 35 NTLR 186; R v Winters [2022] ACTSC 371; R v Wrigley [2015] ACTSC 114, referred to

Respondent: Office of the Director of Public Prosecutions

Sullivan v The King [2025] NTCCA 4

• [1] On 2 November 2023 the appellant pleaded guilty to a single count of causing damage to a conveyance by using fire contrary to s 243(1) of the Criminal Code 1983 (NT) ('Criminal Code'). On 24 January 2024, he was sentenced to imprisonment for four years with a non-parole period of two years and six months. The appellant seeks leave to appeal out of time and leave to appeal against sentence[1] on the sole ground that the sentence was manifestly excessive.
• [2] It is not disputed that, following the sentence, the appellant promptly applied to the Legal Aid Commission for representation in relation to an appeal. On 29 January 2024 the solicitor for the appellant wrote to the Director of Public Prosecutions advising that the appellant intended to file an appeal against sentence.[2] There is no suggestion that the delays which followed were in any way contributed to by the appellant but rather arose in the offices of the Legal Aid Commission.
• [3] In all the circumstances it is appropriate to grant an extension of time. It is not suggested that the proposed ground of appeal is not arguable and leave to appeal should be granted.

• [4] The sentencing Judge described the circumstances of the offending as both bizarre and quite disturbing. Just after midnight on 24 July 2023 the appellant was aboard the prawn trawler "Brampton" which was moored in Frances Bay, in an area commonly known as the duck pond. There then occurred an incident with the victim the nature of which remains unclear. After that incident the appellant called the police and claimed that the victim had come on board the vessel and threatened to shoot him with a 44 calibre rifle. The appellant told police he had armed himself with two large knives, that there had been an exchange of words and the victim told the appellant he had a 44 calibre gun in his car. The appellant then claimed he walked the victim off the vessel and called police. CCTV footage showed the appellant and the victim talking with each other on the wharf at the rear of the vessel. The victim did not have any firearm or weapon. He was holding a drink can. The appellant could be seen holding the two knives. As his Honour observed there was no evidence that the victim was at any time armed in the presence of the appellant. Shortly thereafter police attended and the victim was arrested. At that time the appellant, who appeared to be under the influence of alcohol, said to a police officer that "rocking up like that, that looks like a hunter's car to me, that's what I said, I'll burn the cunt". The police officer responded that the appellant should not do so and if he did "you will be the prime suspect".
• [5] The appellant had been consuming alcohol prior to the arrival of police and he continued to do so following their departure becoming more intoxicated. At 1:53 am he sent a text message to DP, an employee of Austfish, in which he said: "Just had a 44 pulled on me at the Brampton!! Goanna firebomb the cunts car un tonight". Approximately two hours later, at 3:56 am, the appellant obtained the keys to a forklift and drove it to where the victim's Toyota land cruiser was parked. He used the tines of the forklift to roll the vehicle onto its side causing damage. He then returned the forklift to its original parking place. He walked back to the victim's vehicle and took a number of images of it on his mobile phone and sent some of those to DP. The appellant then set fire to the interior of the vehicle and the fire engulfed the vehicle causing a total loss. The appellant went back to the Brampton where he watched the vehicle burn and took a number of video recordings of the vehicle burning. He sent the video images to others. On one of the videos the appellant can be heard saying "Oi, cunt wanted to put a 44 to my head, I just burned his fucking car brus, fucking dog".
• [6] According to the agreed facts, the vehicle was valued at approximately $57,000 and contained other property valued at approximately $15,000. In his victim impact statement the victim advised that the vehicle had been significantly modified and was used as his mobile home on work trips as a commercial diver and fisherman. He thought the value of the vehicle and the items lost was greater than stated in the agreed facts. Further, it was apparent the victim suffered consequential losses over and above the destruction of the vehicle.

• [7] At the time of the offending the appellant was aged 32 years. He was born in South Australia but moved to Western Australia after his parents died in separate motor vehicle accidents when he was under the age of two years. He had a "stable and good upbringing" provided by his mother's brother and his wife. He left school in year 12 to undertake an apprenticeship which he did not complete. He had a range of jobs and, at the time of this offending, was employed as a professional fisherman and was residing on the prawn trawler "Brampton".
• [8] The appellant has a seven-page criminal history from Western Australia which commenced in 2010. His convictions include seven offences of property damage, three of burglary, two of assault, one of assaulting a public officer, one of aggravated common assault, five minor drug-related offences, and six convictions for breaching family violence restraining orders and police restraining orders. Although he had not previously been sentenced to actual imprisonment he had been sentenced to a suspended term of imprisonment and also placed on an intensive supervision order. He had been required to participate in programs and undertake community work.
• [9] The mental condition of the appellant at the time of the offending was considered. His Honour noted that the appellant had a diagnosis of attention deficit hyperactivity disorder from 2002 and in his teens he had been regularly seen by a psychiatrist who specialised in treating adolescents. As an adult he was reviewed by a psychiatrist every six months up until 2022. He had also been treated for a major depressive disorder. When he moved to Darwin in October 2022 he was placed on a waitlist to see a psychiatrist. In light of those matters his Honour ordered a report from a psychiatrist which was received into evidence.
• [10] The psychiatrist, Associate Professor Danny Sullivan, provided a detailed report in which he concluded the appellant met the diagnosis for severe substance misuse disorder involving nicotine, alcohol and cannabis. However, he went on to state that the appellant did not suffer from any psychotic illness nor any cognitive impairment and that he did not consider that "mental disorder was causally associated with defending (sic) as described. He is impulsive, but this was predominantly associated with intoxication with alcohol". There was and is no challenge to those conclusions.
• [11] The sentencing Judge concluded that the offending occurred because the appellant was disinhibited and that alcohol was the primary cause of the disinhibition. His Honour observed that the prospects for rehabilitation of the appellant would depend upon a number of things including, particularly, dealing with his alcohol problem. The appellant would be at risk of reoffending while under the influence of alcohol.

• [12] Offences of this kind are serious and the maximum penalty of imprisonment for life for the offence reflects that seriousness. It was correctly acknowledged on behalf of the appellant that the offending conduct in the present matter was a serious example of such offending because the value of the damage was high for arson of a motor vehicle and the conduct involved a degree of patience and persistence especially in light of a police warning not to engage in the threatened conduct.
• [13] The sentencing Judge noted that the offending followed a plan devised by the appellant. It took place over an extended period of time and involved him walking from the trawler to another area of the duck pond to obtain the forklift and then driving it to where the victim's vehicle was parked. He used the forklift to turn the vehicle over before returning the forklift to its original location. He then walked back to the victim's vehicle and set it alight. He made a photographic or video record of the process. He exercised patience in implementing his plan and his Honour noted it was not "classically impulsive behaviour". It was methodical. The plan was carried out in spite of a police warning to the contrary. He filmed the consequences of his actions and provided commentary in so doing. At the time of sentencing he showed neither remorse nor concern for the circumstances of the victim. There was no suggestion that he would pay compensation.
• [14] As the appellant submits, in considering the seriousness of the offending it should be borne in mind that the vehicle was, to the knowledge of the appellant, not occupied at the time the fire was set and the level of risk to other persons or property was, in the circumstances, limited. There was also reduced risk for first responders given the circumstances. This is by way of contrast with offending involving premises which are occupied or where there are neighbouring properties which may be put at risk.[3] In this case there were no injuries caused to others and no other property damaged.

• [15] In imposing sentence his Honour noted that there was no evidence to connect the offending with any mental health condition and that it is clear that the appellant was both under the influence of alcohol and angry. His disinhibited state was primarily caused by the excessive consumption of alcohol. It was accepted that the offending was unsophisticated but his Honour noted that the appellant acted in accordance with the plan he had devised. There was no suggestion of remorse. Reference was made to the relevant considerations referred to in Ajax v The Queen.[4]
• [16] His Honour adopted a starting point of imprisonment for five years which was reduced to imprisonment for four years to reflect the plea of guilty. Consideration was then given to whether the sentence should be suspended and his Honour determined there was "too much uncertainty in relation to the present extent of (his) rehabilitation". A non-parole period of two years and six months backdated to 24 July 2023 was imposed.

• [17] The principles governing an appeal against sentence based on this ground are well known and have been expressed in similar terms in numerous cases. They were recently restated first in AB v The King[5] and later in Ma_s_on v The King[6] in the following terms:

(a) The sentence is not to be disturbed on appeal unless error is shown.

(b) The presumption is that there is no error.

(c) Appellate intervention is not justified simply because the sentence is markedly different from sentences imposed in other cases.

(d) Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.

(e) Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.

(f) It must be shown that the sentence was clearly, not just arguably, excessive.

(g) There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.

[57] The relevant considerations in such an appeal are the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant; the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.

• [18] The Courts have observed that sentencing Judges must be accorded a wide measure of latitude which will be respected by appellate courts and that "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies".[7] The sentence will not be disturbed simply because it is stern or very stern or severe. It must be "so egregiously erroneous that the sentencing Judge must have made a sentencing error although that error cannot be identified".[8] The "sentence must be so far outside the range of a reasonable discretionary judgement as to itself bespeak error".[9]
• [19] Further, in assessing whether a sentence is manifestly excessive, comparison of the appellant's sentence with other sentences for similar offending will not be determinative of the appeal. There will, of course, be variation in the circumstances of the offending and of the offender in addition to the discretionary nature of the sentencing exercise. However, a collation of appropriate sentences may provide a standard for a particular crime, although not a fixed range departure from which will amount to demonstrable error.[10]
• [20] In AB v The King[11] this Court referred to the High Court decision in The Queen v Kilic[12] and went on to observe:

Regard to current practice is an essential part of the appellate function of minimising disparities in sentencing standards, and the process of comparison has long been recognised as a legitimate forensic tool for that purpose. The High Court in Kilic held that similar cases may provide a yardstick which assists in achieving consistency in sentencing, but that the yardstick:

... does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a "broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle".

• [21] The appellant did not seek to identify any specific error but, rather, submitted the sentence was unreasonable and plainly unjust. In support of this submission the appellant directed attention to a number of matters arising out of the sentencing remarks.
• [22] The appellant acknowledged that the quantum of damage caused to the vehicle placed the offending at the higher end for offences of arson of a vehicle but suggested it was in the mid-range for all arson offences. It was submitted that the starting point of five years imprisonment adopted by the sentencing Judge for an offence involving $70,000 damage, where there was no actual harm nor any risk to life and other property, was at the higher end and indicates some misapplication of principle.
• [23] The appellant submitted that reliance by his Honour upon the "considerable loss to the victim" as an aggravating factor contributed unacceptably to the severity of the sentence. In his written submissions the appellant acknowledged that the "damage caused was particularly high" in comparison with other charges of arson of a vehicle. In this case it is apparent that the loss to the victim went beyond the value of the vehicle and the personal property within the vehicle and extended to losses arising from the ability of the victim to use the vehicle in the pursuit of his employment. It can be accepted that the amount of damage is not necessarily a measure of the culpability of the offender but, nevertheless, the extent of the damage is relevant in the sentencing process. In this case the damage was a relevant consideration in determining an appropriate sentence.
• [24] The appellant submitted that the fact the vehicle was insured was a relevant consideration in lessening the seriousness of the offending. In our opinion, in the circumstances of this matter, this is not so. While the amount of damage caused is a primary factor, albeit not the only relevant factor, the fact that the damage may be covered by insurance so as to lessen the burden on the immediate victim is not necessarily a matter of moderation. The causing of the damage is the gravamen of the offending. The damage may have a flow on effect beyond the direct victim to others including an insurer and those who pay premiums for such insurance.[13]
• [25] The appellant also took issue with the assertion of the respondent that an aggravating feature of the offending was the motive of the appellant. That motive was revenge. The appellant submitted that the assessment of the seriousness of an offence of arson could not be significantly impacted by considering whether the offender had a motive to commit that offence. We do not accept that submission. The motive with which the offence was committed is plainly a consideration in determining the seriousness of an arson offence.[14]
• [26] In support of the proposition that the sentence was manifestly excessive the appellant provided two schedules of comparative sentencing in the Supreme Court covering the period 1 January 2015 to 25 October 2024. The first related to arson of a vehicle or conveyance and the second to arson of a building or dwelling.
• [27] As the appellant submitted, reference to the first schedule reveals a usual range of sentence, after application of a discount for a guilty plea, of one to three years. There were six sentences involving a disposition of less than 12 months' imprisonment, 15 sentences involving a disposition of 12 months' to less than two years' imprisonment, 15 sentences involving a disposition of two years' to less than three years' imprisonment, three with a head sentence of imprisonment for three years and three where the term of imprisonment was slightly greater than three years.[15] There was one sentence of imprisonment for four years, which was the highest sentence imposed for arson of a vehicle.
• [28] In that case, of Gregory Armstrong,[16] the offender had made two "Molotov cocktails", drove to the victim's house and threw the Molotov cocktails at the victim's car. The car caught alight but was put out with only minor paint damage. The head sentence for the count of arson was imprisonment for four years and a further 18 months was imposed in relation to the making of the Molotov cocktails.
• [29] In considering those sentences it is necessary to also bear in mind the observations of this Court over a number of years indicating that sentences imposed for arson in the Northern Territory are too low and need to be increased. This view was expressed in Ajax v The Queen[17] and, more recently, by this Court in The King v Mamarika.[18] This Court respectfully agrees with those observations and, contrary to the submissions of the appellant, we note that they apply to all offences of arson. The maximum penalty for the offence is imprisonment for life, reflecting the seriousness with which the offence of arson is to be regarded.
• [30] The appellant drew attention to the non-parole period of two years and six months and submitted this was also manifestly excessive. The head sentence was imprisonment for four years. Having determined that a partially suspended sentence was not appropriate in the circumstances of the offender, and having provided reasons for so doing, his Honour then set the non-parole period. Pursuant to the relevant provisions of the Sentencing Act 1995 (NT) the minimum non-parole period available was two years. No reason was provided by his Honour for determining that two years and six months was appropriate in the circumstances. Nevertheless, this was a discretionary matter and, notwithstanding that it may have been slightly more than expected, in all the circumstances, it was within the bounds of that discretion.
• [31] The respondent submitted this was a particular example of arson that was very serious. It was planned, deliberate, motivated by vengeance, committed in a public place, and caused significant damage. The appellant filmed the burning vehicle and he could be heard bragging about his conduct. He demonstrated no remorse and had a lengthy and relevant criminal history with uncertain prospects for rehabilitation.

• [32] Whilst it is to be acknowledged that arson is an offence which can be committed in a wide variety of circumstances, in our opinion this was a particularly serious example of this type of offending. As the respondent has submitted the offending was premeditated, deliberate, motivated by vengeance, committed in a public place and caused significant loss to the victim. The appellant proceeded with his conduct notwithstanding the warning from the police officer. He did so in circumstances where over a period of hours he developed a plan and implemented that plan and bragged to others about what he was going to do and then, after the event, what he had done. He took no action to extinguish the fire or call the fire brigade.
• [33] The circumstances of the appellant were that he had an extensive criminal history including some 55 entries for a wide range of offences including damaging property, wilfully and unlawfully destroying or damaging property and criminal damage or destruction of property. He had previously been sentenced to suspended sentences of imprisonment and community-based orders. On this occasion the offending was serious and the moral culpability of the appellant was high. He demonstrated no remorse. His prospects for rehabilitation were quite uncertain.
• [34] In our opinion and in all the circumstances the sentence imposed, whilst stern, was within his Honour's sentencing discretion.
• [35] Leave to appeal is allowed but the appeal is dismissed.

[1] Section 410(c) of the Criminal Code.

[2] In accordance with the guidance provided in Barr v R [2003] NTCCA 2.

[3] See generally the observations of Mildren J in Ajax v The Queen [2006] NTCCA 12 at [34].

[4] [2006] NTCCA 12 at [34].

[5] [2023] NTCCA 8 at [56] - [57].

[6] [2024] NTCCA 13 at [56] - [57].

[7] Markarian v The Queen (2005) 228 CLR 357 at 371 [27].

[8] Truong v The Queen [2015] NTCCA 5; (2015) 35 NTLR 186 at [37] citing Hanks v The Queen [2011] VSCA 7 at [22].

[9] Truong v The Queen [2015] NTCCA 5; (2015) 35 NTLR 186 at [37].

[10] AB v The King [2023] NTCCA 8 at [99].

[12] The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 at [22].

[13] R v Winters [2022] ACTSC 371 at [81].

[14] Aung v The State of Western Australia (2022) WASCA 175 at [39]; The Queen v Rindjarra [2008] NTCCA 9 at [97] read with [80], R v Wrigley [2015] ACTSC 114 at [34]. See also Cheung v The Queen [2001] HCA 67; [2001] 209 CLR 1 at [171].

[15] This excludes the seven sentences for arson of both a vehicle and a building, or where an aggregate sentence was imposed for arson with other offences.

[16] NTSC 22219819, 26 May 2023 Burns J.

[17] [2006] NTCCA 12; (2006) 161 A Crim R 293 at 294, 298-299 and 299.

[18] [2024] NTCCA 5 at [48].