Anderson v The Queen
[2019] VSCA 42
•6 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0258
| CRAIG ANDERSON | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2017 0268
| PETER GEORGE SMITH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 February 2019 |
| DATE OF JUDGMENT: | 6 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 42 |
| JUDGMENT APPEALED FROM: | DPP v Anderson (Unreported, County Court of Victoria, Judge Hampel, 10 November 2017); DPP v Smith (Unreported, County Court of Victoria, Judge Hampel, 24 November 2017) |
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CRIMINAL LAW – Appeal – Sentence – Arson and Attempted Arson – Arson for hire – Appellants commissioned by another to carry out arson attacks on premises of business rivals – Use of Molotov cocktails – Another arson by appellant Anderson for purposes of insurance fraud by another – Appellant Anderson sentenced on 10 charges to total effective sentence of 11 years and 9 months’ imprisonment with non-parole period 8 years and 9 months – Appellant Smith sentenced on two charges to 3 years and 6 months’ imprisonment with non-parole period of 2 years — Whether sentencing judge failed to give proper weight to assistance to authorities – Whether sentence manifestly excessive – Whether principle of parity infringed in appellant Smith’s case — Appeals allowed — Appellant Anderson resentenced to 8 years and 6 months’ imprisonment with non-parole period of 5 years and 6 months – Appellant Smith resentenced to 2 years and 4 months’ imprisonment with non-parole period of 16 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Anderson | Ms G Connelly | Doogue + George |
| For the Appellant Smith | Mr P G Nash QC with Ms J Swiney | Chris McLennan & Co |
| For the Respondent | Mr J McWilliams | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA:
Introduction
Pursuant to leave granted by Santamaria JA,[1] the appellants Craig Anderson (for convenience, ‘Anderson’) and Peter Smith (also for convenience, ‘Smith’), appeal against sentences imposed upon them by a judge of the County Court on charges of arson[2] (and, in Anderson’s case, charges also of attempted arson).[3]
[1]Anderson v The Queen; Smith v The Queen (Unreported, Court of Appeal, 16 March 2018, Santamaria JA).
[2]Crimes Act 1958, ss 197(1) and 197(6). By virtue of s 197(7), the maximum penalty is 15 years’ imprisonment.
[3]By virtue of ss 321M and 321P of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.
Anderson’s grounds contend, first, that the individual sentences on each charge, the orders for cumulation, the total effective sentence and non-parole period, are manifestly excessive; and, secondly, that the sentencing judge failed to give proper weight to Anderson’s ‘substantial and significant assistance to the authorities’. Smith’s single ground of appeal contends that the sentencing judge erred by imposing a sentence upon him that gives rise to a justifiable sense of grievance in light of the sentence imposed upon Anderson.
In our opinion both appeals must succeed and the appellants be resentenced in the manner later set out.[4] Our reasons follow.
[4]See [79] and [83] below.
Background
On 10 November 2017, Anderson was sentenced on seven charges of arson and three charges of attempted arson, as follows:
Charge Offence Sentence Cumulation 1 Arson 2 years 6 months 2 Arson 3 years 9 months 3 Arson 2 years 3 months 4 Arson 5 years 6 months Base 5 Attempted arson 1 year 6 months 6 months 6 Arson 3 years 9 months 7 Attempted arson 2 years 3 months 8 Arson 3 years 6 months 12 months 9 Attempted arson 3 years 9 months 10 Arson 4 years 6 months 18 months Total effective sentence: 11 years and 9 months’ imprisonment Non-parole period: 8 years and 9 months Pre-sentence detention: 8 days Section 6AAA declaration: 17 years’ imprisonment with non-parole period of 14 years and 6 months Other orders: Sentenced as a serious arson offender[5] [5]See s 6F of the Sentencing Act 1991. Anderson was sentenced as a serious arson offender on charges 2 to 10.
As will become clear, Smith was involved only in the commission of the offending embraced by charges 1 and 2. He received, however, the same individual sentences as Anderson on those charges. Thus, on 24 November 2017 he was sentenced as reflected in the following table:
Charge Offence Sentence Cumulation 1 Arson 2 years 6 months 2 Arson 3 years Base Total effective sentence: 3 years and 6 months’ imprisonment Non-parole period: 2 years Pre-sentence detention: 22 days Section 6AAA declaration: 7 years’ imprisonment with non-parole period of 5 years and 6 months Other orders: Sentenced as a serious arson offender[6]
Forensic sample order[6]Smith was sentenced as a serious arson offender on charge 2.
Circumstances of the offending
Anderson and Smith are two of four men charged over the arson attacks. At the time of their pleas, two other men, James Balcombe (‘Balcombe’) and Travis Ransom (‘Ransom’), were awaiting committal. (Balcombe has in the meantime apparently absconded.)
Balcombe operated a business that hired out ‘jumping castles’ and party equipment. He gave instructions for ten acts of arson to be carried out between 20 December 2016 and 6 March 2017. With respect to charges 1 to 9, Balcombe commissioned the appellants to carry out arson attacks against various business competitors. On charge 10, for the purposes, first, of deflecting suspicion from himself for involvement in the nine earlier arsons and attempted arsons; and, secondly, fraudulently recouping the value of a destroyed shed and equipment through insurance, Balcombe instructed Anderson to set fire to Balcombe’s shed located at his home, the shed being used to store jumping castles and other amusement equipment.
Anderson was involved in all ten attacks, but Smith was commissioned only for the attacks which were the subject of charges 1 and 2. The method adopted for the attacks generally was to douse the relevant premises (or part of them) in fuel, and throw a petrol-filled bottle with a burning piece of fabric inserted into the neck acting as a fuse (colloquially, a ‘Molotov cocktail’) to act as an incendiary device.
Charge 1 — Arson, CRP Tarps, Werribee, 20 December 2016 (Anderson and Smith)
On the evening of 19 December 2016, the appellants and a co-offender, Ransom, drove from Anderson’s home in Mill Park to Werribee. They parked their vehicle a short distance away from CRP Tarps, a business that specialised in textile fabrication and repair. At 2.10 am on 20 December 2016, Anderson and Smith were observed on closed circuit television (‘CCTV’) footage to walk the length of the driveway and inspect the outside of the premises. They smashed two windows, through which Anderson poured petrol. They attempted to set the petrol alight by throwing a Molotov cocktail, and then fled in the vehicle, driven by Ransom.
The attack was unsuccessful, since the fire did not take hold. When the proprietor attended the premises later that morning he observed the damage and found two unused Molotov cocktails, and other bottles. He reported the incident to police.
When later arrested and interviewed, Smith told police that he believed Balcombe intended that CRP Tarps would be burned down as the business owner was considering expanding into a party-hire business.
Charge 2 — Arson, Xtreme Party Hire, Tullamarine, 20 December 2016 (Anderson and Smith)
From Werribee, the appellants and Ransom proceeded to Xtreme Party Hire in Tullamarine, a jumping castle hire business. Ransom parked close to the premises and remained in the vehicle whilst Anderson and Smith walked along the driveway. At 3.38 am, they were observed on CCTV footage to approach a vehicle advertising Xtreme Party Hire. Anderson poured fuel onto and under the vehicle. Using pieces of material, Smith helped Anderson to set the fuel alight. They then ran back to the vehicle and returned to Anderson’s address in Mill Park.
The vehicle was completely destroyed. Although it was insured for $18,000, the amount recouped by the owner, less excess, was $15,439.45 (and the cost to replace the vehicle was significantly greater than that).
Charge 3 — Arson, Xtreme Party Hire, Hallam, 6 January 2017 (Anderson)
Several weeks later, in the early hours of 6 January 2017, Ransom and Anderson attended another Xtreme Party Hire outlet located in Hallam. They parked the vehicle around the corner and changed its registration plates. Anderson prepared bottles of fuel to use as Molotov cocktails. CCTV footage at 3.50 am shows their vehicle reversing down the pathway leading to the premises occupied by Xtreme Party Hire. Anderson got out of the vehicle and smashed the front glass door using a rock, through which he threw a Molotov cocktail. A small fire started in the reception area whilst Anderson returned to the vehicle. Both then fled from the scene.
A witness who worked at premises adjacent to Xtreme Party Hire observed what happened and called police. Inside the building, police identified a broken bottle at the centre of the scorched reception area and another, filled with petrol, underneath the window. Outside the building, two petrol-filled bottles were found at the entrance and a third next to the driveway on the grass. DNA testing found that one of the bottles contained Anderson’s DNA, and another had Ransom’s fingerprints on it.
The proprietor incurred $4,000 in repair costs for a new glass door and replacement for smoke damaged equipment. He spent two days cleaning and repainting the premises.
Charge 4 — Arson, A & A Jumping Castles, Hoppers Crossing, 11 January 2017 (Anderson)
Five days later, on 11 January 2017, Anderson and Ransom drove to A & A Jumping Castles in Hoppers Crossing. At 11.50 pm, both exited the vehicle. CCTV footage captured them first inspecting a truck parked outside the business, and then smashing a glass window through which Anderson threw a Molotov cocktail. A fire started inside the two storey building and spread to the adjacent truck which belonged to the proprietor. Adjoining premises also sustained significant fire damage before emergency services attended. The pair left the scene.
The business proprietor had been leasing the property from its owner. At the time of the arson, he had operated the business for ten years and stored a large number of jumping castles and other amusement equipment. All of the contents were destroyed and the premises were required to be demolished and rebuilt. The proprietor was uninsured, his equipment and personal belongings lost to the fire being valued at approximately $175,000. Additionally, he had been storing approximately $20,000 worth of jumping castles for other equipment hire businesses — including Xtreme Party Hire — and $30,000 worth of jumping castles and related items for World4Kids, a children’s out of school hours services provider. Urgent make-safe repairs to the property were valued at approximately $1.5 million, and reinstatement costs to the adjoining property were some $192,000.
Charge 5 — Attempted Arson, Xtreme Party Hire, Hallam, 18 January 2017 (Anderson)
A week afterwards, on 18 January 2017 at 4.00 am, Anderson went once more to the Xtreme Party Hire premises in Tullamarine. He travelled alone by motorcycle, carrying several Molotov cocktails in his backpack. Once at the premises, he removed and ignited several of the makeshift incendiary devices, before throwing them at the front door window and fleeing.
The premises did not, however, catch fire. At the time, the proprietor had been monitoring the live feed CCTV footage on his mobile telephone. He had taken to regularly checking his cameras remotely following previous attacks and notified police. Upon attending, police found a broken alcohol bottle and a smashed window that needed replacement. The premises smelled strongly of petrol.
Charge 6 — Arson, CRP Tarps, Werribee, 26 January 2017 (Anderson)
On 26 January 2017 at 3.50 am, Anderson revisited CRP Tarps in Werribee. He travelled by motorcycle and parked near a neighbouring property. Anderson then jumped the fence, and walked down the central driveway. He smashed a front window of the business, threw a Molotov cocktail and returned to the motorcycle to flee. The property sustained fire damage to the walls and a kitchen cabinet.
Charge 7 — Attempted Arson, Bailey’s Bouncers, Warragul, 29 January 2017 (Anderson)
Three days later, on 29 January 2017, Anderson travelled by motorcycle to Bailey’s Bouncers in Warragul, a jumping castle and party-hire business. Since he was unable to scale the perimeter fence, Anderson ignited four Molotov cocktails and threw them into the business’s car park from outside. The Molotov cocktails landed near parked vehicles, but defused and merely singed the ground. The proprietor of the business located glass and burn marks on the ground the next day and notified police.
Charge 8 — Arson, CRP Tarps, Werribee, 13 February 2017 (Anderson)
Anderson attended CRP Tarps for the third time on 13 February 2017. On this occasion, he was driven by Aaron Walker, an acquaintance. Walker waited in the vehicle, parked in the near vicinity. At 1.03 am, Anderson smashed a window and threw a Molotov cocktail, causing a small fire to ignite on the outside window of the premises. The Fire Brigade attended and the fire was extinguished, leaving the bricks below the broken window blackened and the windows and floors inside the premises damaged.
Charge 9 — Attempted Arson, Sumo Party Hire, Keysborough, 18 February 2017 (Anderson)
On 18 February 2017, Anderson attended Sumo Party Hire in Keysborough. He threw a Molotov cocktail at the window of the premises. Although the bottle broke the window, it fell to the ground outside the premises.
Anderson fled the scene. Unknown to him, the owner of the business had been asleep inside the premises and was awoken by the fallen bottle. The proprietor ran outside to find the burning bottle. Although a window was broken window, there was no fire damage.
Charge 10 — Arson, Balcombe’s shed, Kangaroo Ground, 6 March 2017 (Anderson)
As we have mentioned, charge 10 concerns a fire on 6 March 2017 at Balcombe’s shed at his home address, from which he operated Awesome Party Hire. On instructions from Balcombe, Anderson doused petrol from cans stored in the shed over the shed flooring. He lit the petrol, then fled on his motorcycle.
At the time, Balcombe and his family were in the nearby house, some 70 metres from the shed. A neighbour to the property was awakened by the flames and the sound of loud explosions emanating from the shed. He called emergency services, and, upon their arrival, assisted them to gain access.
The shed collapsed in the centre, with severe damage throughout. At the scene, Balcombe informed police the total damage would be approximately $1.2 million and that the property was insured for $800,000. That day, Balcombe lodged an insurance claim. The reserve allocated to the claim totalled $1.1 million.
Arrests and interviews
Ransom
Ransom was arrested and interviewed on 9 March 2017. He made admissions and provided a written statement.
Anderson
Anderson was arrested later the same day. An Apple iPhone was seized on which were images of Anderson wearing clothing worn during the Hoppers Crossing fire on 11 January 2017; a Hunter Bobber Motorcycle used in some of the offending; the addresses of businesses targeted in the attacks; and screen shots taken from a CFA mobile phone application, containing information about some of the fires at victims’ addresses.
When interviewed, Anderson confessed, telling police that he was introduced to Balcombe through Smith and was paid for setting the fires. He admitted preparing the bottles of fuel with material to start the fire at the scene of each fire and identified himself and others in stills from CCTV footage taken at the fire scenes. Initially, he said, he was approached by Smith. Later, he met with Balcombe who offered him $2000 for each arson attack. After the first two fires, he said, Balcombe was dissatisfied and was only willing to pay for one of the fires. Smith participated in the first two fires then did not want to continue, but Balcombe asked Anderson to do more. Anderson also identified Ransom as the person who drove him to the scene of several fires. He told police that the agreed payment continued to be $2000 in cash per fire, although a couple were not paid because the premises did not ‘go up’. Except for the last, Anderson met with Balcombe the morning after each fire and would make arrangements for the next fire. Anderson stated that he did it for the money and that it was ‘an easy option’.
Anderson said that when Balcombe showed him news reports of the fire at Hoppers Crossing he felt sick, but Balcombe told him he wanted the others done like that. He said that because Balcombe had paid for the first fire at Werribee without much damage to the property, he later felt he owed him for that, and the ‘job’ was ‘already paid for’. As to the Keysborough fire (charge 9), Anderson said that he heard music inside. He left after throwing one petrol bomb, and was paid the $2000 fee even though the fire did not take hold. Before the last fire he met up with Balcombe who took him to his property in Kangaroo Ground, showed him around and explained to him how to get access and set fire to the shed. Anderson said that Balcombe showed him empty jerry cans in the shed and said ‘on Sunday they’ll be full’. Balcombe told him, or he worked out, that it was for insurance. Anderson said that he had not been paid for this fire. He said that he believed that the reason for most of the fires was generally Balcombe’s desire to damage competitors, and his resentment to a person who had supposedly stolen his ideas.
Anderson was charged and bailed. Upon being released from police custody on 9 March 2017, he made a detailed written statement about the matters.
Smith
Smith was arrested and interviewed 14 March 2017. He made full admissions to the fires the subject of charges 1 and 2, and identified himself and Anderson in CCTV stills. Smith told police that previously he was employed by Balcombe and lost his job following a separation from his partner who also worked for Balcombe. He said that Balcombe asked on multiple occasions about carrying out attacks on rival businesses for payment. Smith said that he believed that the fire in Tullamarine was designed to ‘cancel out his competition’. Balcombe had told him ‘Chamika’ — the proprietor of CRP Tarps (charge 1) — was wanting to start his own party hire business. Smith understood this would add another competitor. Balcombe’s instructions were ‘to destroy them’, and he offered $10,000 to destroy five properties. Smith stated that he was desperate for money at the time. His Centrelink payments had been cut off for ten weeks; he had been trying unsuccessfully to find work; and he needed to pay his rent. Balcombe paid $2000 in cash, which was split between him and Anderson, after $400 was paid to Ransom. Smith said that he approached Anderson to assist him, and stated that Ransom was the driver. Anderson and Ransom were both long-term friends of his, and Ransom was needed for his vehicle. Smith said that even when he got in the car to head out to do the fires he knew it was wrong. He felt bad about the fires and told Balcombe that was all he would do.
Smith was charged and bailed. Later, he made a detailed written statement regarding the incidents of 20 December 2016.
The appellants’ pleas
Both Anderson and Smith pleaded guilty before a judge of the County Court on 2 November 2017. Anderson’s counsel made a plea for leniency that same day, and Smith’s counsel did so on 24 November 2017.
Anderson’s plea
Counsel for Anderson submitted that his motivation for the offending was a cash payment of $2000 offered by Balcombe for each ‘job’. Anderson used the cash to obtain illicit drugs to satisfy his addiction. Balcombe, who was motivated by a desire to destroy competing businesses, was the ‘architect’ of the plan. He nominated each address where the arson attacks were to take place and the method of causing the damage. Anderson’s role, counsel submitted, was limited to executing Balcombe’s plan.
Anderson’s methods, counsel submitted, were ‘relatively unsophisticated’. He would survey the locations, and then prepare Molotov cocktails to cause the fires. Anderson neither attempted to disguise himself, nor employ any strategies to minimise detection, and he did not persist in causing damage when his initial efforts were unsuccessful. Although the extent of the damage caused on each occasion varied, counsel conceded that the damage caused in relation to charge 4 was significant. Counsel argued that the nature and location of the various premises, and the times at which they were targeted, reduced the level of risk of damage or injury beyond those premises. On only one occasion, charge 9, was a person present in the premises attacked, although Anderson was not aware of that at the time.
Anderson was aged 30 during the period of offending, and was 31 at the time of the plea.[7] His childhood, counsel told the judge, was relatively unsupervised due to his father leaving the family home when he was eight years of age, and his mother having to work full-time as a real estate agent to support him and his two older sisters. Lack of supervision at home, and the lack of a father figure, contributed to his early association with an older negative peer group, use of cannabis and poor level of participation in schooling, which led to him leaving school at the beginning of Year 9. Notwithstanding these factors, however, Anderson enjoys a very good relationship with his mother and recognises the efforts that his mother made to ensure he was loved and looked after at home despite her challenging circumstances. A significant element of his remorse, counsel submitted, is the feeling that he has disappointed his mother who worked so hard to care for him and his sisters.
[7]His date of birth is 20 November 1986.
Anderson’s early use of cannabis continued through to his late teenage years and early adulthood life, albeit it was limited to recreational use. He maintained full-time work and a stable relationship with a long-term partner, Dallas Clune, who had two daughters from a previous relationship. Sadly, counsel submitted, Anderson’s level of drug use rapidly escalated following the breakdown of this relationship, accompanied by the introduction to heroin by a friend. His addiction to heroin was ‘instantaneous’ and he immediately started using daily. It was following his addiction to heroin in 2012 that he attracted his first prior convictions, his criminal history being directly related to his rapid addiction. When he was released in 2015 following a prison sentence Anderson was still recovering from his heroin addiction. He then began abusing methamphetamines despite being actively involved in a methadone program at the time.
Counsel informed the judge that, following his arrest for the instant offences, Anderson returned home to live with his mother once bailed. He also reconnected with his previous partner, Ms Clune. Anderson complied with his bail, attended all court dates, and has not re-offended since his arrest on 9 March 2017.
With respect to his criminal history, counsel submitted that it is limited to a period between 2012 and 2015. Although he has prior convictions for property offences, none was for damage by fire. His criminal history is directly related to his history of substance abuse. Despite his prior history, however, Anderson has ‘positive’ prospects for rehabilitation. Prior to 2012, Anderson lived a stable life with meaningful employment and a supportive family. His offending over five years is directly linked to his history of substance abuse. He still enjoys the support of his family and he has skills that he can rely on to seek employment in future.
It was submitted that Anderson immediately co-operated with authorities after his arrest and pleaded guilty at the earliest available opportunity. He deserved the maximum discount for his plea. It has both utilitarian value and reflects his remorse. Counsel told the judge that Anderson co-operated with police from the time that he was first arrested on 9 March 2017. Thus, he made an immediate confession and implicated the principal offender, Balcombe. In a lengthy record of interview he identified himself and co-offenders in CCTV footage. He confirmed the methods used for the arson attacks and described each incident in which he was involved. Significantly, he then provided a signed a statement to police in which he outlined his involvement in the offending, and the identity and role of others. He gave sworn evidence on the plea during which he undertook to give evidence against his co-offenders in accordance with his statement if called upon to do so by the prosecution. Counsel submitted that he was entitled to a substantial discount as a result of his co-operation.[8]
[8]Section 5(2AB) of the Sentencing Act 1991 provides that, if a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by an offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details. See also s 291 of the Criminal Procedure Act 2009, which gives a right of appeal to the Director of Public Prosecutions in the event of a failure to live up to an undertaking.
Ultimately, counsel submitted that the judge should impose a sentence of imprisonment coupled with a community correction order.
Smith’s plea
Smith’s counsel conceded that his offending was serious, but submitted that the damage arising from the offending on charges 1 and 2 was relatively minor ‘in a commercial sense’. She submitted that Smith came to be involved in the offending due to his ‘dire financial circumstances’. He was out of work due to no fault of his own, and was struggling to pay the rent. More significantly, his beloved dog had suffered an assault by his neighbour. As a result, he had veterinary bills in excess of $1200, and he was distraught at the distress of his pet. He was thus vulnerable to Balcombe’s suggestion of offending for gain. The fact that he walked away from further involvement, and his actions since, are a strong indication that specific deterrence is less important than would otherwise be the case.
Counsel told the judge that Smith grew up in the northern suburbs of Melbourne, and that he was close to his parents and his brothers, leaving home aged 24. With the death of his father, however, his family lost almost all contact with each other.
Smith attended school in Greensborough up to Year 11, although he did struggle academically. His work history is solid, albeit he has had periods of drug use and homelessness. Before going into custody he was living in a share-house arrangement with a friend who supports him by attending Court and doing his best to look after Mr Smith’s dog. He felt the loss of his pet most acutely.
Counsel submitted that there are a number of matters demonstrating Smith’s remorse, including that: he desisted after the incidents founding charges 1 and 2 because he did not want to be involved in further offending; he made candid admissions in his record of interview and made a statement which is accepted as truthful; he expressed willingness to give evidence in accordance with his statement;[9] and he entered an early plea of guilty. His remorse and contrition, counsel submitted, are strong indictors of his good prospects of rehabilitation.
[9]After the hearing of Smith’s application in this Court, we were informed that, consistently with his undertaking, Smith gave evidence at committal proceedings.
Sentencing remarks in Anderson’s case
Without setting out every aspect of her sentencing remarks on 10 November 2017, the judge observed that the fire on charge 2, Xtreme Party Hire, resulted in the complete destruction of a van insured for $18,000 (although the insurance payout was less than the cost of a replacement vehicle), and that the fire on charge 3, also Xtreme Party Hire, caused $4,000 damage. On charge 4, A & A Jumping Castles, the judge stated that the costs of destruction and rebuilding of the building came to $1.5 million; the reinstatement works for the adjoining building came to about $200,000; and the destruction of stock, assets and valued items came to about $250,000. As to charge 10, Balcombe’s shed, the judge noted the approximate value of the destroyed shed (and the property inside it) was about $1.1 million, based on the reserve allocated to Balcombe’s insurance claim.
Her Honour said Anderson’s was ‘appalling and amoral conduct’, and remarked that his ‘dispassionate account to the police of what [he] did and why [he] did it makes chilling reading’. She said that it ‘certainly does shake one’s faith in humanity to hear of conduct like this’. The judge also referred to the ‘incredibly moving’ victim impact statement of the victims on charge 4, and a similar statement by the victim on charges 2, 3 and 5.
The sentencing judge said that the ‘most significant factor’ counting in Anderson’s favour to balance against the considerations of punishment, denunciation and deterrence, is his ‘cooperation with the authorities’. She observed:
There are high policy reasons why offenders are to be encouraged to not only confess but also to implicate and to give evidence against their co-offenders. It is acknowledged that such cooperation can carry considerable risks not only from those who are as a result directly implicated but also from the wider cohort of prison population and for those generally who, whilst not in prison, engage in criminal activity and adhere to a code of conduct that says: ‘Don’t confess and don't give up anybody else’.
Each of these considerations, the high policy needs encouraging people not only to acknowledge their own wrongdoing but to implicate others, to treat with the contempt it deserves the so-called code of honour amongst people, co-offenders, that leads to people not implicating others, as well as the understanding of the considerable risk you bring upon yourself must be reflected in a reduction, a considerable reduction in the sentences otherwise appropriate for this appalling offending.
Her Honour said she took into account the plea of guilty, ‘entered at the earliest possible opportunity’, ‘for its utilitarian value and as further evidence of the advancing of the interests of justice’. She then observed:
I was not sure on the materials that were presented to me on the plea whether you were genuinely remorseful for what you had done, or you were simply making a pragmatic decision about the best way to achieve the lowest possible sentence for your role in the offending. On one level, it beggars belief that you could be so apparently amoral and cold-blooded in agreeing to participate in the scheme, in continuing to do so after the first fires and particularly in continuing to do so after the fourth one, after the devastating damage that had occurred. It beggars belief that you could be so unaware of or uncaring of the consequences for your victims up until the time of the arrest, but then suddenly come to an appreciation when arrested of the terrible harm that you had done your victims. So it was with a certain level of cynicism that I considered whether your cooperation was motivated by a desire to atone as best you could by assisting the prosecution and in the conviction of the co-offenders or whether you were simply seeking to advance your own position.
I have watched you carefully in the course of the plea hearing and the sentencing hearing today. You do appear to be distressed and ashamed.[[10]] I am not an expert in reading body language but you are certainly not sitting there as if you do not care and as if you are only interested in the numbers and the way it will advance you. But it does sit in stark contrast to the amorality of the behaviour, to compare the capacity to shut your mind down to the harm that you were doing or could be doing to others over the period of offending, compared to the apparent instant realisation of the moral culpability of your conduct at the time that you were questioned by the police.
Whilst I have come back from my view that this was motivated only by a desire to advance your own interests, … I am just not sure how deep and genuine that remorse is, or how much weight I give to it given that it is so clearly after the event and not something that troubled you at the time. But it is clear that your cooperation is significant, powerful and as complete, it would appear, as it can be. Therefore the reduction for that cooperation, no matter what misgivings I might have about the sudden appreciation of the wrongdoing or the extent of your moral culpability only after the event, you are still entitled to that significant reduction in the sentence because of the nature of the cooperation and the important policy considerations identified for acknowledging it.
Having used terms like ‘a substantial reduction’ in the sentence that is otherwise appropriate, it is also quite clear that there is no set figure by law to be allocated to cooperation. Under state law, unlike Commonwealth law, I am not required to state the percentage reduction to your sentence by reason of the cooperation. What I do say is that a significant proportion of the reduction in the sentence that I would have imposed but for your plea of guilty is attributable to your cooperation.
[10]As to a judge drawing adverse conclusions against a prisoner for the purposes of sentencing based on the prisoner’s attitude during the plea, see R v Kiss (1993) 69 A Crim R 436, 440 (Phillips CJ, Marks and Hampel JJ).
Having referred to, and cited from, Johnston,[11] the judge remarked that the ‘nature and gravity of the crimes here are significant’, and Anderson’s ‘moral culpability is very high’. Whilst ‘arson for gain may not be prevalent’, her Honour said, ‘there is a very clear need to impose a sentence that does deter those who … do it for the money’, and ‘those who like Balcombe … do it in order to gain for themselves or to cause harm to others’.
[11]R v Johnston (2008) 186 A Crim R 345. See [68] below.
The judge also set out Anderson’s personal circumstances, and made some observations about his criminal history, and expressed the view that his ‘prospects for rehabilitation should be classed as reasonable’.
Sentencing remarks in Smith’s case
In her sentencing remarks on 24 November 2017 with respect to Smith, the judge noted that Smith had told police that he had previously been employed by Balcombe, and that he had lost his job following separation from his partner (who also worked for Balcombe). Balcombe had asked him on multiple occasions about carrying out attacks on rival businesses for payment. Balcombe’s instructions were to destroy the people whose businesses he was asking Smith to attack and that he was offered, in total, $10,000 to destroy five properties. Smith also told police that he had recruited Anderson.
The sentencing judge observed that Smith made a full confessional statement, offered to assist authorities, gave an undertaking to give evidence and pleaded guilty at the earliest opportunity. Subject to considerations personal to Smith, the judge said, ‘punishment, denunciation and deterrence, both general and specific, loom large in the sentencing mix’.
Her Honour referred to authorities on sentencing those who cooperate with law enforcement bodies, and said that she took into account Smith’s plea of guilty entered at the ‘earliest possible stage’. The plea had utilitarian value and was evidence of remorse.
The judge then outlined Smith’s personal circumstances (including his criminal history), and said that she considered his prospects of rehabilitation to be ‘reasonable’.
Finally, with respect to the issue of parity, the sentencing judge outlined those ways in which Smith’s and Anderson’s cases were similar, and those ways in which they were dissimilar.
Submissions made on Andersons’ appeal
On the appeal, counsel submitted that, upon his arrest, Anderson immediately implicated the driver, architect and beneficiary of the offending, Balcombe; and, within hours of the record of interview, had provided a sworn statement to police that heavily implicated Balcombe and Ransom. The prosecution accepted that Anderson’s assistance was crucial in Balcombe’s prosecution.
Notwithstanding that the judge described Anderson’s undertaking to give evidence as being ‘of considerable weight’, and that his ‘cooperation is significant, powerful and as complete, it would appear, as it can be’, all components of the sentence imposed, counsel submitted, are simply outside the range of those open in the proper exercise of the sentencing discretion. It was submitted that the sentence imposed does not at all reflect any significant and substantial discount for cooperation. The failure by the sentencing judge to accord the applicant a sufficient and proper discount has produced a disproportionate and excessive sentence.
Although counsel for the respondent accepted that Anderson’s cooperation and assistance to authorities was of considerable value and deserving of a substantial discount, he resisted any suggestion that the sentence imposed failed properly to reflect that cooperation and assistance, or that the sentence was otherwise manifestly excessive.
Submissions made on Smith’s appeal
Putting parity considerations to the fore, counsel for Smith argued that, in light of the difference in the Smith’s and Anderson’s criminal records and levels of remorse — highlighted by Smith ceasing to offend while Anderson continued to not only offend but to escalate the offending — equality of treatment required the sentencing judge to impose sentences that reflected their relative criminality and allowed for a shorter term of imprisonment in Smith’s case on the two charges that they had in common. Smith, it was contended, should not have received the same sentence as Anderson on charges 1 and 2 (with a similar cumulation).
The respondent submitted in writing that although there were differences between Smith’s and Anderson’s situations, those differences did not require that different sentences should have been imposed on charges 1 and 2. Anderson had a longer and more varied criminal record than Smith; but neither had prior convictions for arson and their respective roles in relation to charge 1 and 2 allowed identical sentences to be imposed upon them.
Resolution of Anderson’s appeal
On Anderson’s plea, the prosecutor told the sentencing judge that the prosecution proposed to rely on the statements to police made by Anderson and Smith, and to call them to give evidence at Balcombe’s committal proceedings. Significantly, the prosecutor asserted unequivocally that ‘the case against Mr Balcombe depends on those statements’.
Moreover, in the course of argument in this Court, counsel for the respondent informed us that, consistently with the undertaking that he gave to the sentencing judge, Anderson had given evidence at Balcombe’s committal. (We were also informed that Balcombe failed to answer his bail at trial, and has apparently absconded.) The respondent’s counsel also acknowledged that Anderson’s statement ‘was of considerable value and deserving of a substantial discount’.
As was emphasised in Cartwright,[12] an offender’s full and frank co-operation must be encouraged (no matter the motive):[13]
In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender’s motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender’s co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.
Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve. The circumstance that objectively the information subsequently turned out to be effective may perhaps demonstrate that the information possessed such a potential if it is not otherwise obvious upon the face of the information itself, but such effectiveness is not a requirement. As we have already pointed out, the offender will not lose the discount because in fact (unknown to him) the authorities are already in possession of that information. Nor should he lose it if the authorities do not in the end act upon his information, because (for example) they subsequently receive or they have already received more cogent information from another source — or if the offender does not in the end give evidence as promised, because (for example) the person who is the subject of his information has pleaded guilty.
[12]R v Cartwright (1989) 17 NSWLR 243.
[13]Ibid 252–3 (Hunt and Badgery-Parker JJ; Mahoney JA agreeing).
With respect to the extent of any ‘discount’, each case must depend on its own facts. Although it will be unusual, there will be cases where the information provided is so extraordinary, and is of such a high level of benefit, that a sentencing court will be justified in imposing a sentence which represents less than fifty per cent of what otherwise might be thought to be appropriate. Hence, Nettle JA (with whom Buchanan and Ashley JJA agreed) made the following pertinent observations with respect to informer ‘discounts’ in Johnston:[14]
… Although, recognising that the quantification of informer discount involves a degree of arbitrariness which adherents to the shibboleth of intuitive synthesis may prefer to avoid, in the circumstances of this case I would set the discount at 50%.
So to say is not to suggest that the level of discount could not be less or more in another case involving drug-related offences. Each case is unique.[15] Nor is it to say that it is necessarily the only figure to which one could properly come in the circumstances of this case. It goes without saying that, within a given range of acceptability, views may reasonably differ. But, in my view, less than 50% would be an inadequate recognition of the quality of the information which the applicant has provided to authorities in this case, and the risks to which he has subjected himself by agreeing to do so; and more would tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale here involved. I am strengthened in that conclusion by the analysis undertaken by Wells J in R v Golding.[16]
[14]R v Johnston (2008) 186 A Crim R 345, 350–1 [20]–[21] (citations as in original). See also Cottee v The Queen [2010] VSCA 285, [23].
[15]R v Schioparlan (1991) 54 A Crim R 294 at 299, 305 (Young CJ, Marks and Brooking JJ).
[16]R v Golding (1980) 24 SASR 161 at 173-174; 3 A Crim R 26 at 37-38.
More recently, this Court (Weinberg, Priest and Beach JJA) said in Cooper:[17]
A discount of fifty per cent on sentence was thought to be justified in Johnston because of the very high level of assistance provided to authorities. It should not be thought, however, that there is a ‘tariff’ or standard discount, or that the assessment of the discount that should be given can generally be approached in a mechanical or mathematical way.[18] The amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including — but not limited to — the nature and extent of the cooperation; any willingness to give evidence against co-offenders; and any danger flowing from the cooperation. As was said in Freeman, however:[19]
… it is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.
[17]DPP v Cooper [2018] VSCA 21, [45] (citations as in original).
[18]R v Kohunui [2009] VSCA 31, [25], citing Vincent AJA in R v Cuthbertson (Unreported, Court of Appeal Victoria, 13 November 1995).
[19]R v Freeman (2001) 120 A Crim R 398, 405 [37] (Coldrey AJA, with whom Brooking and Tadgell JJA agreed), citing R v Su [1997] 1 VR 1, 78–9. See also Scerri v The Queen (2010) 206 A Crim R 1, 9 [35] (Maxwell P and Buchanan JA); R v Cartwright (1989) 17 NSWLR 243, 252–3 (Hunt and Badgery-Parker JJ; Mahoney JA agreeing).
Arson is a serious crime. It may be committed in a variety of ways and be committed for a variety of reasons. As the Court of Criminal Appeal of Western Australia observed in Dowell:[20]
A crime of arson may be committed for many reasons — revenge, to conceal the commission of another offence, as an act of vandalism or for financial gain. And it is often the case, but it is not this case, that the crime is associated with a mental disturbance. And circumstances can vary widely, it being a particular circumstance of aggravation which is not present in this case, that occupants of the house or of neighbouring houses are put at risk. This case, as we see it, is one of a burning for financial gain to be achieved by defrauding the insurer. It was for that reason unlawful (Criminal Code, s 442) and hence arson but without any other or further circumstances of aggravation. But having said that, it remains a serious if unhappily a not unusual case of arson. It is true that as the events turned out the insurance company was not defrauded. But this was because detection came too soon. It is also the case that as the events turned out the financial loss will fall mainly on the respondent and his wife and to an extent and in all probability upon the mortgagee as it would seem that for all practical purposes the mortgagee’s security has been destroyed.
The crime of arson is said to go undetected more often than not. See Thatcher, ‘Trouble with Arson’ in the Australian Journal of Forensic Sciences (1982), vol. 15, p. 32. It is apparently a difficult crime to detect and it is generally thought to be an offence calling for a deterrent sentence and hence for a sentence of imprisonment. …
[20]R v Dowell (1982) 6 A Crim R 113, 116 (Burt CJ, Wallace and Smith JJ). See also DPP v Perrone (1989) 43 A Crim R 366, 368 (Crockett, O’Bryan and Gray JJ) (‘Perrone’).
Some of the sentiments from the passage above were echoed by Murphy J in Halden, who said of arson:[21]
It is a crime which may be committed in a very wide range of circumstances. The property damaged may vary from a book to a mansion and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.
The penalty may also vary according to the circumstances in which the crime is committed …
[21]R v Halden (1983) 9 A Crim R 30, 38–9. See also Perrone, 368.
By and large, only modest damage was caused by Anderson’s offending. The exceptions are charge 2, destruction of the van; charge 4, destruction of premises and a large amount of equipment; and charge 10, Balcombe’s shed and other property (albeit that Balcombe was not an innocent victim, any loss he suffered flowing directly from his own wrongdoing). But, as the authorities make clear, the amount of damage caused is not the only feature by which the seriousness of a particular instance of arson is to be judged. In this case, Anderson was an arsonist for hire, doing the paid bidding of Balcombe who, on charges 1 to 9, wanted criminally to eliminate business rivals; and who, for the purposes of charge 10, wanted ultimately to defraud an insurer.
Furthermore, the use of makeshift bombs makes the instant case a serious example of arson (and attempted arson). So much is illustrated by Phillips,[22] a case in which an individual sentence of 18 months’ imprisonment had been imposed for criminal damage constituted by firing two shots from a shotgun into the fence of a residential property, and sentences of five months’ and six months’ imprisonment had been imposed on two charges of attempted arson of residential properties (involving the use of Molotov cocktails). It was contended that, when compared to the sentences for attempted arson, the sentence for criminal damage could be seen to be manifestly excessive. Rejecting that contention, Osborn and Priest JJA said:[23]
That contention is not persuasive, since we regard the sentences imposed on the two charges of attempted arson to be inadequate. In his sentencing reasons, the judge said that the ‘attempts at arson — by throwing Molotov cocktails — were towards the lower end on a scale of seriousness for this type of offending’. His Honour said that neither attempt ‘was ever likely to cause any serious damage’, and although ‘there was presumably some sort of sinister warning intended by the behaviour, neither offence involved any actual or threatened violence to others’. With respect, the seriousness with which the completed offence of arson is to be gauged is dictated only partially by the extent of damage caused, or by the value of the property destroyed or damaged. The method by which the arson is accomplished also dictates its objective seriousness. Winneke P made some observations in Ralph,[24] which conveniently may be adopted (and adapted) for present purposes:[25]
Arson is a serious crime in this State’s calendar, which not only has the capacity to severely impact upon the sense of security of its immediate victims, as occurred in this case, but also is destructive of the sense of safety and security of those who are indirectly affected by it, as likewise in this case were the neighbours. This crime was, I think, a serious example of its type. It was committed for no better reason than to exact revenge …
[22]Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313.
[23]Ibid [62] (citations as in original).
[24]DPP v Ralph [2004] VSCA 158.
[25]Ibid [12].
Given that Anderson was a paid arsonist; that the driving force behind his crimes (as he knew) was Balcombe’s desire to decimate his rivals; that his offending took place over a relatively protracted period; that his method involved the use of Molotov cocktails; and that, in the case of charge 4, entirely innocent victims suffered enormous loss; Anderson’s offending was very grave.
Moreover, Anderson has an unenviable criminal record. In her sentencing remarks, the judge summarised it as follows:
In your … mid to late mid-20s, following the breakup of the relationship with your partner, your life began to unravel and you began to use heroin. That, I was told, led to your involvement in the criminal justice system. You have amassed a significant number of previous convictions covering a wide range of offending between July 2012 and January 2015. On my count, there were six separate court appearances during that time. All of the appearances seem to involve what I would call consolidations of a number of separate sets of charges. On two occasions, you were placed on community corrections [sic] orders and you breached each of those. Twice you were sentenced to terms of imprisonment. The offences span a wide range of offending: dishonesty, burglary and aggravated burglary, driving offences, contraventions of the community corrections [sic] order and failures to appear on bail.
More significantly in terms of gravity of offending and relationship to this offending, you have a number of convictions for contravening family violence orders including contraventions committed with the intention of causing harm or fear in the protected person, threats to kill, use of a carriage service to menace, recklessly causing injury, assault, and reckless conduct endangering serious injury. You have a number of convictions for intentional damage to or destruction of property as well as some weapons, explosives and some minor convictions for use and possessing cannabis. So it covers a very wide range of offending indeed over that three-year period between 2012 and 2015. I am told all of it relates to your substance abuse.
Despite the seriousness of Anderson’s offending (and his poor record), however, in our view it is difficult to see that his cooperation and assistance were appropriately rewarded by adequate discounts in the individual sentences, the orders for cumulation, the total effective sentence thereby produced or the non-parole period. Put simply — and as the prosecution acknowledges — the prosecution does not have a case against the principal offender, Balcombe, who was the architect of, and driving force behind, the arson (and attempted arson), without Anderson’s evidence. Anderson made a full and frank confession immediately upon his arrest; and, in an account which is essentially accepted as being truthful and accurate, implicated others. Although some circumstantial evidence exists, the prosecution concedes it could not establish a case against Balcombe without Anderson’s evidence, and that Balcombe could never be brought to account for his serious offending without it. In our opinion, the sentence imposed by the sentencing judge does not adequately reflect the very great value of Anderson’s assistance, no matter whether that assistance be seen to be prompted by pure self-interest or by some other motivation.
Given the foregoing, Anderson’s appeal must be allowed. This Court’s intervention is called for, and Anderson must be resentenced. As will be obvious, in selecting the individual sentences for the purposes of the resentencing exercise, we have attempted to differentiate between charges so as to reflect the individual circumstances of their commission, whilst at the same time endeavouring to reflect the substantial ‘discount’ flowing to Anderson from his significant cooperation and assistance. We have selected the sentence on charge 4, which caused tremendous property damage and had a very severe impact on the victims, as the base sentence. In making the orders for cumulation, we have taken into account the fact that Anderson’s was a single (albeit protracted) course of conduct with a single motivation, interspersed with individual criminal episodes of variable seriousness. We have also had regard to the dictates of s 6E of the Sentencing Act 1991, but note, first, that the prosecution did not seek a disproportionate sentence; and, secondly, that in light of the ameliorating effects flowing from the cooperation and assistance, any more substantial cumulation would result in a sentence which offends principles of proportionality and totality. Finally, we have endeavoured to make appropriate allowance for cooperation and assistance in the non-parole period to be fixed.
Self-evidently, were it not for the level of Anderson’s assistance and cooperation, far more severe sentences would have been warranted (all other things being equal). Thus, the sentence to be imposed in resentencing should not be thought to be a useful comparator in other cases of arson (and attempted arson) committed in circumstances similar to those of the current offences, unless there be substantial mitigation flowing from cooperation and assistance (or other compelling feature or features, meriting a substantial reduction in sentence).
We would make orders resulting in a total effective sentence of 8 years’ and 6 months’ imprisonment, and would fix a non-parole period of 5 years and 6 months. Our overall intention is reflected in the following table:
Charge Offence Sentence Cumulation 1 Arson 12 months 4 months 2 Arson 2 years 8 months 3 Arson 18 months 6 months 4 Arson 4 years Base 5 Attempted arson 12 months 4 months 6 Arson 18 months 6 months 7 Attempted arson 12 months 4 months 8 Arson 18 months 6 months 9 Attempted arson 12 months 4 months 10 Arson 3 years 6 months 12 months Total effective sentence: 8 years’ and 6 months’ imprisonment Non-parole period: 5 years and 6 months
Pursuant to s 6F of the Sentencing Act 1991, we would cause to be entered in the records of the Court that Anderson is sentenced as a serious arson offender on charges 2 to 10 inclusive.
Further, fully cognisant of the artificiality of the exercise,[26] pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for Anderson’s pleas of guilty, we would have imposed a total effective sentence of 14 years’ imprisonment, upon which we would have fixed a non-parole period of 11 years.
[26]We respectfully adopt the views expressed by Kaye J in R v Flaherty (No 2) (2008) 19 VR 305. See also SD v The Queen (2013) 39 VR 487, 501–2 [63] (Ashley, Redlich and Priest JJA); Youil v The Queen [2013] VSCA 228, [36] (Priest JA); DPP v Cooper [2018] VSCA 21, [56] (Weinberg, Priest and Beach JJA).
Resolution of Smith’s appeal
Parity principles demand that Smith also be resentenced.
In our view, however, Smith’s and Anderson’s respective roles in the offending making up charges 1 and 2, and the differences in their criminal histories and personal circumstances, do not warrant Smith being the recipient of individual sentences on those charges any different to those imposed on Anderson. Thus, on charge 2, we would resentence Smith to imprisonment for 2 years; and on charge 1, to 12 months. We would order that four months of the sentence on charge 1 be served cumulatively with the sentence on charge 2, making a total effective sentence of 2 years and 4 months’ imprisonment, and we would fix a non-parole period of 16 months’ imprisonment.
Pursuant to s 6F of the Sentencing Act 1991, we would cause to be entered in the records of the Court that Smith is sentenced as a serious arson offender on charge 2; and pursuant to s 6AAA of the Act, we declare that, but for Smith’s pleas of guilty, we would have imposed a total effective sentence of 4 years’ imprisonment, upon which we would have fixed a non-parole period of 2 years and 6 months.
Once more, given the very unusual circumstances of this case, the sentence imposed on Smith will generally not be a useful comparator in cases of arson bearing a resemblance to the instant offending.
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