Brown v The King
[2025] VSCA 39
•18 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0182 |
| LUKE ANTHONY BROWN | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 March 2025 |
| DATE OF JUDGMENT: | 18 March 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 39 |
| JUDGMENT APPEALED FROM: | [2024] VCC 1363 (Pillay J) |
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CRIMINAL LAW – Appeal – Sentence – Co-accused – Reckless conduct endangering persons – Co-accused ignited blow-torch in house while occupants asleep – Appellant present during first ignition – Whether judge erred in finding housefire caused by two distinct origins – Whether judge erred in considering co-accused’s offending in sentencing the appellant – First ignition was minor and did not cause damage to house – Co-accused’s offending erroneously considered when sentencing the appellant – Specific sentencing error identified – Appeal allowed.
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| Counsel | |||
| Appellant: | Mr D McGlone | ||
| Respondent: | Mr JCJ McWilliams | ||
Solicitors | |||
| Appellant: | Kurnai Legal Practice | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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BEACH JA
T FORREST JA:
On 19 February 2025, leave to appeal was granted to the appellant against a sentence imposed on him by a judge in the County Court. The details of that sentence are set out in the table below:
| Charge on indictment | Offence | Maximum Penalty | Sentence | Cumulation | |
| 1 | Reckless conduct endangering persons[1] | 5 years’ imprisonment | 18 months’ imprisonment | Nil | |
| 8 | Breach condition of parole[2] | 3 months’ imprisonment and/or 30 penalty units | 2 months’ imprisonment | Nil | |
| Total Effective Sentence: | 18 months’ imprisonment | ||||
| Non-Parole Period: | 12 months’ imprisonment | ||||
| Pre-sentence Detention Declared: | 3 days | ||||
| Section 6AAA Statement: | 2 years and 2 months’ imprisonment | ||||
| Other relevant orders | Disposal order | ||||
[1]Contrary to s 23 of the Crimes Act 1958.
[2]Contrary to s 78A(1) of the Corrections Act 1968.
The appellant advances the following grounds of appeal:
Ground 1 – The learned judge erred in finding that there were two distinctive areas of origin of the fire and not taking into account that the fire originating from the television set was very minor and not the cause of the damage to the house.
Ground 2 – The sentencing judge erred by taking into account the subsequent offending of the [appellant’s] Co-accused, being Arson [sic], [as] a matter relevant to the offending of the [appellant] who was not charged with that offence.
It is convenient to deal with both grounds together as they are effectively indivisible.
Summary of the offending
First, we shall set out a very short factual summary of the offending both of the appellant and his brother Liam Brown:
(a)On 5 July 2020, Liam Brown had a verbal altercation with Rebecca Hume. Ms Hume was ordinarily an occupant of 85 Olympic Avenue, Shepparton, with her brothers David and Travis Hume.
(b)Some time later, at 7.46 am, Liam and Luke Brown attended at 85 Olympic Avenue. The occupants at that time were Travis Hume, David Hume and Emma Radford-Burner. They were asleep at this time.
(c)The appellant and Liam Brown entered the premises through an unlocked door.
(d)In the premises, Liam Brown took possession of a yellow propane blow torch.
(e)The blow torch was ignited. Liam Brown carried it into a bedroom where Travis Hume slept. A motion sensitive GoPro camera recorded over 8 seconds the criminal activity in that bedroom (‘the first bedroom’). We have viewed this footage. It shows Liam Brown applying the ignited blow torch to the plastic rim or bezel of a flatscreen television for approximately two seconds. The appellant did not enter the room but stood nearby. By his plea, he admits encouraging or assisting Liam Brown by his presence.
(f)The television did not ignite and suffered ‘minor heat effects’.[3]
(g)The appellant’s charged criminal activities in the house concluded at this point.
(h)Liam Brown then went to a second unoccupied front bedroom (‘the front bedroom’) and used the blowtorch to ignite the combustible material in that room.
(i)The appellant and Liam Brown left the premises at 7.49 am. An occupant of the house was awoken by loud banging and the smell of smoke. She roused the other occupants and they left the house.
(j)The house was extensively damaged and later demolished.
(k)The source of the fire that resulted in the extensive damage was the fire ignited by Liam Brown in the unoccupied front bedroom.[4] This is the undisputed evidence of George Xydias, a Victoria Police Forensic Scientist.
[3]Statement of Victoria Police Forensic Scientist, Mr George Xydias, dated 29 July 2020, 1 (‘Xydias Statement’).
[4]Xydias Statement, 3. Mr Xydias reported that ‘[The] main fire which had effectively caused all of the damage to the dwelling, was inside the master bedroom. The fire in the third/rear bedroom was very minor, involving a flat screen television located near the doorway’.
Consideration
We shall set out various passages from the reasons for sentence that are relevant to the two grounds of appeal.
When summarising the offending, His Honour said:
An arson chemist examined the scene. He concluded that there were two distinctive areas of origin of the fire – at or near floor level in the north-western corner of the master bedroom (being Rebecca Hume’s front bedroom), and on the edge of a flat screen television in the third bedroom (Travis Hume’s bedroom). Further, the cause of both fires was the ignition of combustible materials at each location. There was no indication that either fire was electrical or otherwise accidental in nature.[5]
[5]DPP v Brown and Brown [2024] VCC 1363, [26] (‘Reasons’).
If this paragraph is read as conveying that the fire that gutted the house was, in part, caused by the scorching of the television, then this misstates the expert opinion of Mr Xydias.[6]
[6]See paragraph [4(k)] of these reasons.
In considering the objective gravity of the offending, his Honour said:
… However, once inside you ascertained that at least one occupant was sleeping, and while that was occurring you, Liam Brown, attempted to light the television. That action of Liam Brown I accept as being spontaneous given my earlier finding that the blow torch was not carried into the premises.
On the evidence of Mr Xydias, the arson chemist, there was ignition of the fire from this activity. Nevertheless, you then did not wake Travis Hume or any other person at the premises but went to another area of the house where further ignition of combustible material has occurred. You both then left the house knowing that other persons were resident there and were likely asleep. No effort was made to alert the occupants of the house or to summon emergency services. You both then left the area.[7]
[7]Reasons, [42]–[43].
This misstates Mr Xydias’ opinion. Mr Xydias’ opinion was expressed as follows:
This rear corner bedroom had the doorway at the north-eastern corner, off the laundry/passage along the northern side. There was a double bed in the south-western corner and a timber chest of drawers along the northern wall, beside the doorway and the foot of the bed. A large flat screen television was one of the main items on top of this chest of drawers, angled facing south (towards the bed). There was a small area of burning (over [about] 10 square centimetres) at the central, eastern edge of the bezel, characterised by light scorching of the plastic outer frame of the appliance. This fire appeared to have either self-extinguished shortly after ignition, and had not spread to other items on the chest top or other items in the locality.[8]
[8]Xydias Statement, 4.
Further, at paragraph [71] of his reasons for sentence, the judge, in dealing with the appellant’s subjective circumstances and criminality said the following:
You admit that you were on an alcohol and drug-fuelled ‘bender’ when you accompanied your brother to the premises. [Defence counsel], who appeared on your behalf, pointed out correctly that your actions were confined to attending with your brother and proceeding to the first bedroom where an attempt was made to light the side of a television. At the time when you and your brother left the room, the television was not alight. I have referred above to the fact that Mr Xydias, the arson chemist, describes the seat of the fire as being the television, which Liam Brown attempted to light. However, this was not your action. You have been charged on the charge of reckless conduct endangering persons. Thereafter, you accompanied your brother when he lit other material in the front bedroom and you, and your brother then exited the property. You made no effort to wake those who were sleeping in the house.
Turning to consider the objective seriousness of the offence. For reasons set out above, I consider the offending to be moderate to high. There was an element of pre-meditation in attending the house. Thereafter, you, Luke Brown, were aware that your brother had a blow torch in the house and used it on the television. Further, that he had used it again to ignite combustible materials in the front bedroom. At the time when Luke Brown exited the premises, the fire was lit and no attempt had been made to wake the sleeping occupants. In those circumstances, though you were drug and alcohol affected, it does not lessen the objective seriousness of this offending.[9]
[9]Reasons, [71]–[72].
It may be that the judge, this time, correctly stated the limited consequences of the actions in the first bedroom, as opposed to the two earlier examples cited above. However his Honour then erroneously proceeded to evaluate the objective seriousness of the appellant’s conduct by reference to the activities of Liam Brown in the front bedroom, including failing to warn the occupants of the fire ignited by Liam Brown in the front bedroom.
Whilst it may appear that we are critical of his Honour, we observe that the genesis of the identified specific errors can be found in paragraph [26] of the Summary of Prosecution Opening (‘SPO’) which, regrettably, is a misleading and inadequate summary of Mr Xydias’ expert opinions. The SPO stated amongst other things that combustible material was ignited in each location – meaning each bedroom. This is just plain wrong and has led to sentencing error. Busy judges in the County Court are entitled to rely on these summaries as being accurate on all material matters.
We are satisfied that the appellant has identified specific error and both grounds are established. It will be necessary to resentence the appellant.[10]
[10]Criminal Procedure Act 2009, s 291(1).
Resentence
The appellant was 34 years of age at the time of offending. He is of indigenous descent and, as the judge accepted, suffered a difficult early life. His parents separated prior to his birth and he had a very limited relationship with his father. His mother ‘moved around’ frequently and the appellant was subjected to ‘very stern treatment’ by his mother and her then-partner, Barry.[11] At the age of 13 years, he moved in with his older sister. He was diagnosed with Tourette’s syndrome as an adolescent which manifested itself in facial tics. He was bullied at school as a result of these.
[11]Reasons, [67].
The appellant attended a regional secondary college in Shepparton and then received a scholarship to a boarding school in Ballarat. He successfully completed Year 12 there. He was an extremely talented junior sportsman excelling both at football and basketball. Like so many young people before the courts, drugs and alcohol have derailed his life.
After leaving school he worked at Rumbalara Aboriginal Cooperative while studying a Certificate IV in Youth Work and then obtained employment as an Aboriginal Youth Justice Worker. After this promising start, by his 20’s the appellant began to abuse substances, escalating in about 2016 after the death of a friend. In 2018 he was convicted of multiple offences including trafficking a drug of dependence in a commercial quantity, possessing a drug of dependence (8 charges) and dealing with the suspected proceeds of crime (3 charges). He was sentenced to an effective head sentence of 5 years’ imprisonment with a minimum term before parole eligibility of 21/2 years. By this stage he had been in custody for 659 days which was declared as pre-sentence detention. The reckless conduct endangering persons of serious injury charge (the subject of this appeal) was committed while the appellant was on parole for the 2018 offending. The appellant has other drug-related convictions incurred after the commission of the two offences that are the subject of this appeal. We do not take them into account.
The appellant has a long term partner who, at the time of the plea, remained supportive. They have no children. His partner is employed, working with young indigenous students in schools, managing an Indigenous Youth Leadership program. A psychological opinion was tendered on the plea.[12] Ms Rodgers, a psychologist, opined that the appellant likely suffered depression as a consequence of childhood disadvantage and trauma, however these symptoms were currently ‘well managed’.[13]
[12]Prepared by Ms Megan Rodgers, a psychologist.
[13]Report from psychologist, Ms Megan Rodgers, dated 17 February 2024, [42].
Reckless conduct endangering a person of serious injury carries a maximum penalty of 5 years’ imprisonment.[14] It must be borne steadily in mind that the appellant was not the principal offender in this charge — his role was to stand by, assisting and/or encouraging by his presence. The offending took place over a couple of seconds and ultimately amounted to very little. His brother, Liam, the principal offender, received the same head sentence on charge 1 — that is, 18 months. Notwithstanding that Liam was considerably younger than the appellant (23 at the time of the offending) and had a persistent albeit less serious criminal history, he (Liam) was the driving force behind the commission of charge 1. We consider there should be some meaningful distinction in sentence between the two co-offenders on charge 1.
[14]Crimes Act 1958, s 23.
The sentencing judge considered that the appellant had ‘very significant rehabilitative prospects having re-engaged in full time work, was in a steady relationship, had just purchased a house, and engaged with pro-social support such as football’.[15] We shall resentence him on the basis of these favourable findings. Nevertheless his conduct and criminal history required that the sentence give some emphasis to denunciation, general deterrence and specific deterrence.
[15]Reasons, [81].
We note that it was accepted that the appellant pleaded guilty at an early stage, and that the offending occurred only days after the death of his mother.
We propose to allow the appeal against sentence and resentence the appellant as follows:
(a)On charge 1 — reckless conduct endangering a person or persons of serious injury – 9 months’ imprisonment;
(b)On charge 8 — breach of a condition of parole — 1 months’ imprisonment to be served concurrently with charge 1.
Thus, the total effective sentence is 9 months’ imprisonment.
It will be further declared that but for the appellant’s plea of guilty, the Court would have sentenced him to a total effective sentence of 15 months’ imprisonment.
We declare 196 days have been served by way of presentence detention.
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