Davies v The Queen
[2019] VSCA 66
•28 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0188
| BRENDAN DAVIES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE, McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 4–5 February & 1 March 2019 |
| DATE OF JUDGMENT: | 28 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 66 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1101 (10 April 2017) (Judge Mullaly) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of five charges of arson – Whether convictions were unsafe and unsatisfactory – Circumstantial case – Inferences.
EVIDENCE –Admissibility – Videos allegedly featuring accused justifying arson attacks on society – Whether state of mind or tendency evidence – Benbrika v The Queen (2010) 29 VR 593, Elomar v The Queen (2014) 316 ALR 206, Fattal v The Queen [2013] VSCA 276, Higgins (a pseudonym) v The Queen [2016] VSCA 47, Parachoniak v The Queen [2017] VSCA 347, considered – Whether videos inadmissible under Evidence Act 2008 s 137.
EVIDENCE – Admissibility – Hearsay – Admission under business records exception without exhibiting document – Witness not having seen document – Evidence Act 2008 ss 48, 69 – Evidence inadmissible without tender of document – No substantial miscarriage of justice.
EVIDENCE – Admissibility – Coincidence evidence – Whether striking similarity in modus operandi required – Evidence Act 2008 s 98 – Tognolini v The Queen (2011) 216 A Crim R 188, distinguished; IMM v The Queen (2016) 257 CLR 300, R v Bauer (2018) 92 ALJR 846, applied.
EVIDENCE – Admissibility – Opinion evidence as to burn pattern – Witness experienced detective with three days’ formal arson training – Evidence Act s 79 – Honeysett v The Queen (2014) 253 CLR 122, applied.
EVIDENCE – Admissibility – DNA evidence – No evidence of innocent transference – Fitzgerald v The Queen (2014) 88 ALJR 779, distinguished – Whether DNA evidence inadmissible due to failure to call every member of forensics team – R v Sing (2002) 54 NSWLR 31, distinguished.
JUDGE’S DIRECTIONS TO JURY – Whether judge adequately related evidence to charges – Whether judge adequately warned jury against tendency reasoning – Whether adequate warning of identification evidence – Jury Directions Act 2015 ss 36, 37 – Agkul v R (2002) 5 VR 537 distinguished – Whether charge to jury unbalanced against applicant – Whether charge unfair – Whether judge erred in not giving hearsay directions relating to police logs – R v Vincent (2002) 133 A Crim R 206, R v Flood [1999] NSWCCA 198, Allen v R (2013) 39 VR 329, Walker v R [2014] VSCA 177 considered – Whether directions on inferences reversed the onus of proof – Knight v R (1992) 175 CLR 495, Peacock v R (1911) 13 CLR 619, Barca v R (1975) 133 CLR 82, R v Baden-Clay (2016) 258 CLR 308, Mannella v R [2010] VSCA 357 considered.
VERDICTS – Whether judge erred in taking majority verdicts – Whether judge allowed sufficient time for deliberations – Whether judge pressured jury to hasten its verdicts.
TRIAL – Whether trial miscarried due to applicant being unwell and unrepresented – Whether trial miscarried due to comments suggesting applicant was in custody.
BIAS – Whether judge biased – Actual bias – Apprehended bias – Protracted pre-trial proceedings – Unrepresented litigant – Witness examination – Interactions with jury – Whether miscarriage of justice – No evidence of actual bias – Fair minded lay observer would not reasonably apprehend judge might not bring an impartial mind to case – Ground not made out – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied – Sloan (a pseudonym) v The Queen [2015] VSCA 64 applied – Sloan (a pseudonym) v The Queen [2015] VSCA 240 applied.
SENTENCE – Total effective sentence of 14 years 6 months’ imprisonment – Non-parole period 12 years 3 months’ imprisonment – Whether sentence manifestly excessive – Whether judge erred in not finding that applicant’s autism spectrum disorder reduced his culpability – R v Verdins (2007) 16 VR 269, DPP v O’Neill (2015) 47 VR 397 considered –Whether delay in prosecution a mitigating fact – Applicant resentenced to 12 years 3 months’ imprisonment with non-parole period of 10 years 3 months – Incorrect presentence detention figure provided to judge by prosecution – Correct figure substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | In Person | |
| For the Respondent: | Madam Prosecutor | Solicitor for the Victorian Director of Public Prosecutions |
TABLE OF CONTENTS
Introduction
The application for leave to appeal
Circumstances of offences
Prosecution case ― charge 1 (Mount Waverley Police Station Fire, 20 January 2011)
Prosecution case ― charge 2 (St Mary’s Fire, 20-21 January 2011)
Prosecution case ― charge 3 (St Oswald’s Fire, 27 January 2011)
Prosecution case ― charge 4 (Tanner’s Fire, 31 January 2011)
Prosecution case ― charge 5 (Croxley Child Care Centre Syndal Fire, 3 February 2011)
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
Ground 2 ― admissibility of Internet exhibits
YouTube videos
Were the videos tendency evidence?
Motive of persons other than the speaker
Probative value
Unfair prejudice
Editing the videos
Website
Conclusion as to ground 2
Ground 3 ― Admissibility of other evidence
Telstra evidence
Coincidence evidence
Opinion evidence
DNA evidence
Conclusion as to ground 3
Ground 4 ― The convictions were unsafe and unsatisfactory
Analysis and conclusions on ground 4
Ground 5 — The judge failed to direct sufficiently as to which evidence related to which charges
Ground 6 —The judge gave inadequate identification evidence warnings
Ground 7 — The judge’s charge was unbalanced
Sub-ground 7.2
Ground 8 — The applicant suffered from being unrepresented, unwell and exhausted, and having autism, no equality of arms and facilities, communication delays/limits
Inequality of arms/unrepresented accused/Criminal Procedure Act s 197
Did the applicant’s ill health throughout the pre-trial and trial cause a substantial miscarriage of justice?
Ground 9 — Prejudicial evidence and comments such that it was likely apparent to the jury that the applicant was in or had been in custody
Analysis on ground 9
Ground 10 — The judge erred in the circumstantial evidence direction
Ground 10.1 (Miscellaneous directions)
Ground 10.2 (Directions concerning YouTube videos)
Ground 10.3 (Directions on inferences)
Ground 10.4 (Whether directions on inferences unbalanced)
Ground 10.5 (Directions on coincidence evidence)
Ground 11 — The judge was biased against the applicant
Legal principles
The applicant’s contentions
The respondent’s contentions
Analysis
Conclusion on ground 11
Ground 12 — Unlawful or unreasonable taking of a majority verdict
Ground 1 — Substantial miscarriage of justice
Conclusion on application for leave to appeal against conviction
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
Previous convictions
Background
Psychological evidence on the plea
Submissions on plea
Trial judge’s reasons for sentence
Ground 1 ― Whether sentences manifestly excessive
Childhood abuse and diagnosis of post-traumatic stress disorder
The application of the principles in R v Verdins
Delay
Judge’s assessment of the gravity of the offences and mitigating circumstances of offending
Judge’s refusal to permit applicant to cross-examine witnesses concerning damage to Tanner’s
Whether the judge gave excessive weight to the applicant’s previous conviction for arson and to the reasons for sentence of Judge Howie
The judge’s assessment of the applicant’s prospects for rehabilitation and risk of re-offending
The judge’s finding as to the applicant’s level of intellectual functioning
The judge erred in respect of maximum sentence
Comparable cases
New facts and circumstances — protective custody
Conclusion on ground 2
Ground 2 — Whether sentencing judge erred in applying incorrect pre-sentence detention
Re-sentence
KAYE JA
McLEISH JA
T FORREST JA:
Introduction
The applicant was charged on indictment with five counts of arson contrary to s 197(1) of the Crimes Act 1958 (‘Crimes Act’). Specifically, it was alleged that the applicant intentionally set fire to and damaged: Mount Waverley Police Station on 20 January 2011 (charge 1); St Mary’s Catholic Church Presbytery (‘St Mary’s’) in St Kilda East between 20 and 21 January 2011 (charge 2); St Oswald’s Anglican Church (‘St Oswald’s’) in Ashburton on 27 January 2011 (charge 3); Tanner’s Swiss Patisserie (‘Tanner’s’) in Syndal on 31 January 2011 (charge 4); and Croxley Child Care Centre in Syndal on 3 February 2011 (charge 5).
Following a three month trial in the County Court, the applicant was convicted of each charge. He was sentenced to a total effective sentence of 14 years and 6 months’ imprisonment, with a non-parole period of 12 years and 3 months. The applicant seeks leave to appeal both the conviction and sentence.
The applicant relies on the following grounds in support of his application for leave to appeal against conviction:
1.GROUND ONE ― The aggregate of all errors and prejudices (including individual particulars and submissions) did result in a miscarriage of justice (or a perceptible risk of same).
2.GROUND 2 ― The trial miscarried due to admission of Internet Exhibits (Youtube, FTM website).
3.GROUND 3 ― The trial miscarried due to further evidence being wrongly admitted.
4.GROUND 4 ― The convictions were unsafe and unsatisfactory, especially Charges #1, #2.
5.GROUND 5 ― The trial miscarried by a failure of trial Judge to give sufficient directions as to carefully explain which evidence related to which counts (and erred in identification directions).
6.GROUND 6 ― The trial miscarried due to inadequate Identification evidence warnings.
7.GROUND 7 ― The trial miscarried due to the unbalanced charge of the Judge.
8.GROUND 8 ― The trial miscarried due to (one or more) Davies being unrepresented, unwell and exhausted, autism, no equality of arms and facilities, communications delays/limits.
9.GROUND 9 ― The trial miscarried due to prejudicial evidence and comments such that it was likely apparent to the Jury that Mr Davies was in, or had been in, custody.
10.GROUND 10 ― Trial miscarried as Judge erred in the circumstantial evidence directions.
11.GROUND 11 ― The trial miscarried as the Judge was biased against accused. In the alternative, the particulars reveal an improper conduct of the trial that did combine to cause a miscarriage of justice.
12.GROUND 12 ― The trial miscarried due to the unlawful or unreasonable taking of majority verdicts, and/or due to the trial judge not accepting that the jury was at an impasse in its deliberations and/or due to the trial judge’s comments regarding delays and the time taken by the applicant during cross-examination and/or due to comments by the trial judge seemingly hinting with judicial authority at the preferred verdict.
The applicant’s sentence was constituted as follows:
| Charge on Indictment B10298545.2 | Offence | Maximum | Sentence | Cumulation |
| 1. | Arson | 15 years | 3 years | 15 months |
| 2. | Arson | 15 years | 2 years and 6 months | 12 months |
| 3. | Arson | 15 years | 1 year and 6 months | 6 months |
| 4. | Arson | 15 years | 7 years and 6 months | 4 years |
| 5. | Arson | 15 years | 7 years and 9 months | Base |
| Total Effective Sentence: | 14 years and 6 months | |||
| Non-Parole Period: | 12 years and 3 months | |||
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 1,123 days | |||
| 6AAA Statement: N/A | ||||
| Other relevant orders: Sentenced as a serious arson offender. | ||||
The applicant relies on the following two grounds in support of his application for leave to appeal against sentence:
1. GROUND ONE ― the sentence imposed is manifestly excessive.
2.GROUND TWO ― the sentencing judge erred to apply incorrect pre-sentence detention.
The application for leave to appeal
The applicant represented himself at the trial and also on the application for leave to appeal. In support of the application for leave to appeal against conviction, and the application for leave to appeal against sentence, the applicant filed substantial written cases that contained detailed references to the evidence in the trial and to legal authority. In addition, he provided a lengthy supplementary written case in respect of his application for leave to appeal against conviction, and he also provided detailed written responses to the written cases of the respondent in respect of the applications for leave to appeal against conviction and sentence. Those documents contained a multiplicity of points on which the applicant relied in support of each of the grounds of the application for leave to appeal against conviction and the two grounds in support of the application for leave to appeal against sentence. In oral submissions, the applicant expanded quite eloquently in relation to his written submissions, and additionally raised further issues. In his written documents, and in oral argument, the applicant demonstrated an admirable grasp of the evidence at the trial and a commendable understanding of legal principle.
In these reasons, we endeavour to deal with each of the points that were raised by the applicant. However, that was a difficult task, given the very significant (if not vast) number of points raised by the applicant in his written and oral submissions, and the variegated nature of those points.
Circumstances of offences
The applicant was born in July 1978. At the time of the offences he was unemployed, and he lived at 1 Yvette Drive, Rowville. Those premises were located on the north-east corner of the intersection of Yvette Drive and Clauscen Drive. The applicant was the registered owner of a white Mitsubishi Magna registered number WOT 962 (‘the white Magna’), which, the prosecution alleged, was implicated in each of the offences.
The fire, that was the subject of the first charge, occurred between 11pm on Wednesday 19 January and 6.40am on Thursday 20 January 2011 at Mount Waverley Police Station at 338 Stephensons Road, Mount Waverley. As a result of the fire, damage was caused to the outside ventilation grille and to the surrounding surface on the southern side of the police station. The fire damage spread inside the office area to the south east corner of the police station, resulting in sooting to the walls and inside the wall cavity. There was also sooting on the back of the wall data panel and inside the wall panel. The wiring inside the wall cavity was burnt.
On the following morning, a forensic chemist, Rachel Noble, attended the scene. She noted the pattern of burning on the vent, and the surrounding concrete strip and grass, that was consistent with the presence of burning flammable liquid. Moderately evaporated petrol was detected on the grass and in the soil adjacent to the ventilation grille. There was no direct burning or fire to the inside of the building or the offices in the police station. There was no sign of forced entry to the premises. Ms Noble expressed the view that petrol had been poured or squirted onto the grass and into the air vent and the brickwork, and then ignited. She considered the probable source of ignition to be a match or a lighter.
The fire, that was the subject of charge 2, was alleged to have been committed between 10.30 pm on Thursday 20 January and 7.00 am on Friday 21 January 2011 at St Mary’s at 208 Dandenong Road, St Kilda East. On the evening of 20 January 2011, Father Barry Moran, who resided at the presbytery, went to bed at 10 pm. He gave evidence that he was not aware of any fire damage to the exterior of the premises at that time. On the next morning, at 7.00 am, he noticed that the windows in the French double doors at the rear of the premises on the south side of the presbytery looked smoky. When he went outside to investigate, he observed signs of a fire. Detective Senior Constable Woodcock, who attended, observed that an accelerant had been poured at the base of the double timber doors on the ground level at the balcony area at the rear of the premises. He observed significant charring and burn marks on the double doors.
The fire, that was the subject of the third charge, occurred at about 1.30 am on Thursday 27 January 2011, when St Oswald’s at 100-108 High Street, Ashburton sustained fire damage to the downstairs lower outside rear doorway on the western side of the premises. The doorway was at the foot of a set of stairs that led to a covered walkway between the church and the hall. The doorway provided access to a room under the main level of the church hall. When police attended at 3.30 am, they observed the fire damage, and also observed a plastic bottle with coloured liquid standing in the doorway. The bottle was next to the fire damage on the door. The contents of the bottle were subsequently tested and found to contain petrol. Later on the same morning, a forensic chemist, Mr George Xydias, attended the scene. He noted that it did not appear that any flammable or combustible liquid had been poured onto the bottle or the doorstep. He also noted that the remnants of an intensely heat affected firelighter cube/block with a whitish interior were present on the step beside the bottle.
Subsequently, the bottle, that was found at the point of ignition, was tested for DNA. That testing produced a partial profile that matched the DNA profile of a reference sample taken from the applicant. Accordingly, he was not excluded from being a contributor to the DNA that was located on the bottle. A statistical analysis established that the applicant was at least 46,000 times more likely to be the source of the DNA that was found on the bottle than if the DNA had originated from another person chosen at random from the Australian Caucasian population.
Tanner’s, which was damaged by the fire that was the subject of charge 4, was located on 232 Blackburn Road, Syndal. At about 1.30 am on 31 January 2011, the premises sustained severe fire damage. The forensic chemist, Mr Xydias, who attended the scene, observed that the point of origin of the fire was at the rear of the premises in the vicinity of the doorway at the store room of the premises. Extensive burning had occurred throughout the eastern store room. Based on the pattern and extent of burning at the floor level in the vicinity of that doorway, Mr Xydias expressed the view that it was probable that a flammable or combustible material had been used to ignite the fire. He took a sample from immediately outside the step of the door, and later testing proved it to be kerosene. He considered that the fire was likely to have been ignited directly by a match or by a cigarette lighter.
The fire, that was the subject of the fifth charge, occurred shortly after 2.00 am at Croxley Child Care Centre that was located in Hunter Street, Syndal. The fire commenced against the southern exterior wall of the main pre-school building at the southern end of the property. There was severe damage caused to two central rooms along the southern side of the structure. Mr Xydias, who subsequently attended the scene, concluded that the point of origin of the fire was at the base of the wall beneath the windows on the southern side of the building. A sample of soil was taken from that area and found upon analysis to contain petrol.
At the time of the fire the police had, for some time, had the applicant under observation. At 2.14 am, smoke was observed by police to be coming from the end of Hunter Street. At 2.16 am, the applicant was observed running out of the laneway at the southern end of Shirley Avenue along the footpath and to his vehicle. Shirley Avenue is a short distance west of Hunter Street. The applicant’s vehicle then sped off. He was followed by police. A short time later, at 2.20 am, the applicant was intercepted on the Monash Freeway near the Blackburn Road entry ramp. He was arrested and taken to Glen Waverley Police Station.
After the applicant’s arrest, the police searched his home at 1 Yvette Drive, Rowville. Police located a number of items, including a blue cigarette lighter (in the applicant’s vehicle), vehicle documentation showing the applicant to be the registered owner of the white Magna, and a Fujitsu laptop computer. The computer was analysed and found to contain material on which the prosecution relied to establish a motive by the applicant to light each of the fires. In particular, it was alleged that the material demonstrated that the applicant harboured a deep seated hatred of society, and that he was motivated to commit each of the arson attacks as an act of vengeance against society.
The proceedings before the County Court judge were the subject of very lengthy pre-trial argument, in the course of which the judge delivered 19 written rulings. On two occasions, the applicant unsuccessfully sought to challenge rulings of the judge by way of interlocutory appeal to this Court.[1] The trial itself was punctuated by numerous arguments and objections raised by the applicant in the course of evidence.
[1]Sloan (a pseudonym) v The Queen [2015] VSCA 64 (‘Sloan’); Sloan (a pseudonym) v The Queen [2015] VSCA 240 (‘Sloan (No 2)’).
At trial, the prosecution relied, principally, on seven pieces of evidence to establish the guilt of the applicant.
First, the prosecution relied on recordings by a CCTV camera that had been fixed outside the home of the applicant. Those recordings depicted the times at which the applicant departed from his premises, and returned to those premises, relative to the time at which each fire was lit. The recordings also demonstrated that, on each relevant occasion, the applicant was by himself when he left his home and returned to it.
Secondly, the prosecution relied on data from a tracking device that had been fitted to the applicant’s white Magna from 19 November 2010. The product of the tracking device was tendered in evidence, and the jury was provided with a spreadsheet containing a chronology and narrative of that information. The device particularly established the time at which the applicant’s vehicle was in a static position proximate to the location of each of the five premises which were the subject of arson, at times which (the prosecution alleged) were close to the probable times at which the fires were ignited. The prosecution relied on the tracking device to demonstrate that each fire was lit during the early hours of the morning, that the applicant’s vehicle at that time was usually parked in a side street close to the place of the fire, and that the vehicle was usually stationary only for a short period of time at that location. In addition, the prosecution relied on the tracking data to establish the route taken by the applicant leading to the location of the fire and departing from that location to return home. In particular, the data demonstrated that on most occasions the applicant took a direct route from his home to the location of the fire, and from the location of the fire to his home.
Thirdly, after the second fire (St Mary’s on 20 to 21 January 2011), the State Surveillance Unit (‘SSU’) was engaged to undertake visual observation of the movements of the applicant. The surveillance was part of an ongoing police investigation that was referred to as ‘Operation Navarre’. The prosecution relied on evidence of observations of police members, who participated in the SSU operation, to support the tracking device evidence that the applicant was at or near the location of the fires, that were the subject of charges 3, 4 and 5, at the probable time at which they were lit.
Fourthly, the prosecution relied on forensic evidence that the applicant could not be excluded as a contributor to the DNA found on the bottle that was located close to the point of ignition of the fire that was the subject of charge 3 (the fire at St Oswald’s on 27 January 2011).
Fifthly, the prosecution relied on the generally similar way in which each fire was commenced, in order to support the inference that the same person had been responsible for each such fire. In particular, the prosecution relied on the fact that each fire was initially ignited in a relatively secluded part of the premises outside the access point, that the source of ignition of each fire was external to the premises, that each of the fires was lit in the early hours of the morning, and that accelerant was present at or near the point of ignition of each fire.
Sixthly, the prosecution relied on the evidence of motive, demonstrated by the content of three YouTube videos, that were downloaded from a YouTube address ‘ The prosecution case was that the applicant operated or was materially connected with an internet website called ‘Seer Travis Truman: the Forbidden Truth’ at ‘Seer Travis Truth TV’. The site contained messages which the prosecution alleged were delivered by the applicant under the pseudonym Travis Truman. In the three YouTube videos, his face was covered by a balaclava, and he wore sunglasses. In the videos, he provided instructions on committing arson, and explained that the commission of arson was legitimate because an arsonist is a tortured victim of society, who has been subjected to abuse and victimisation by society, so that society brings arson attacks on itself and deserves them. The prosecution particularly relied on the fact that, in the videos, the speaker (who the prosecution alleged was the applicant) made statements to the following effect:
·the arsonist should use either a box of matches or a cigarette lighter, and should use accelerant such as petrol, fuel or kerosene;
·the ‘smart arsonist’ does not have anything on his person or in his vehicle that could link him to the arson;
·the arsonist needs to have his own vehicle and to ensure that he is not being followed;
·the arsonist should use a timing device, meaning a cigarette or dry rag on which a small amount of accelerant is poured;
·the arsonist should leave the scene immediately because arsonists who are caught are those who remain around to watch their handiwork.
Seventhly, the prosecution relied on coincidence reasoning under s 98 of the Evidence Act 2008 (‘Evidence Act’), to establish, first, the improbability that each of the five fires were not lit by the same person, and, secondly, the improbability that the accused could be present at or near the scene of each fire but not be the cause of each of them. In respect of the first proposition, the prosecution relied on the similarities in the way each of the fires was said to have started, the close geographical proximity of the fires that were the subject of charges 2, 3, 4 and 5, and the close temporal connection between each of the five fires, occurring as they did in a 14 day period between 20 January and 3 February 2011.
Before turning to each of the grounds relied on in support of the application for leave to appeal against conviction, it is convenient to summarise the evidence relied on by the prosecution in relation to each of the five charges.
Prosecution case ― charge 1 (Mount Waverley Police Station Fire, 20 January 2011)
In January 2011, Sergeant Bernard Postma was stationed at Mount Waverley Police Station. The police station was located on the intersection of Stephensons Road and William Street, Mount Waverley. William Street intersects with Mummery Street, which is approximately 50 metres from the police station.
On 19 January 2011, Sergeant Postma was rostered for the afternoon shift from 3.00 pm to 11.00 pm. Before leaving the premises in the evening, he activated the alarm, secured the front door and checked the premises to ensure that no damage had been done. On returning to work at 6.40 am on the next morning (20 January), he noted that the police station smelt strongly of fire. He checked under a desk where the watch house keeper worked and found a large amount of burnt smoke material along the wall. He noted that the station had lost telephone, fax and internet server connections.
On 20 January 2011, Leading Senior Constable Shane O’Sullivan was rostered to commence work at Mount Waverley Police Station at 7.00 am. When he entered the station at 6.40 am, he noted a faint odour of burning which seemed to be coming from the area of the watch house. He had a look around but could not detect anything. Subsequently, he ascertained that the telephone lines at the station were not working. Accordingly, he inspected the telecommunication junction box that was located behind the desk on the wall of the watch house. He saw that there was a black sooty substance coming out of the right hand side of the box, and he could smell that that was where the odour was coming from. Subsequently, when tradesmen arrived, the lid of the box was removed, and Constable O’Sullivan noted that the wires at the base of the box were charred and blackened. He looked through the access hole to the wires, and could see the external brick wall of the station. Constable O’Sullivan then went outside. He noted that the grille on a vent on the east side of the station was blackened and charred, and that the area of grass directly in front of it was also blackened and charred.
On 20 January 2011, Robert Epifano, a senior technical officer with Prime Electrical and Data, attended at the police station. Sergeant Postma directed him to where the fire had occurred. Mr Epifano examined the telephone system and noted that the mainframe was charred and blackened. Upon opening the mainframe, he observed that the copper wire was fused together. At that stage he suspected that there had been an electrical fire, so he called an electrician who worked for the company. In the meantime, Mr Epifano went outside the police station to a point directly opposite where the Telecom mainframe was located. He noted that there was an air vent in that position. It looked as if the fire had commenced at that point, and that it had possibly been caused by an accelerant. The fire had extended about half a metre up the wall. He considered that, in order for the fire to have such intensity, it would have required a trigger which would not have been electrical.
Mr Troy Morgan, an electrician and data technician, attended at the police station at the request of Mr Epifano. He determined that there had not been any electrical fault. He examined the vent on the side of the wall outside the premises and noted the burn marks around it. He also noted that the fire had burnt quite quickly, and he concluded that some accelerant must have been used in order for the fire to burn in such a way.
Mr Adam Gelfe, a team manager at the Law Enforcement Liaison section of Telstra Corporation, gave evidence that was directed to the time at which there was an interruption to services to Mount Waverley Police Station on the morning of 20 January 2011. He stated that as part of its business records, Telstra keeps records as to when data services are interfered with or stop working. He stated that he was informed that the business records of Telstra, showed that on 20 January 2011 there was an interruption to services to Mount Waverley Police Station at 1.35.03 in the morning. As we will later explain, under ground 3, the evidence of Mr Gelfe was inadmissible and should have been excluded.
Ms Rachel Noble, a forensic officer at Victoria Police Forensic Services Centre (‘VPFSC’), attended the police station at 12.30 pm on 20 January 2011. She observed a patch of burnt grass on the outside of the building. She noted that the damage went inside the building, and that there was sooting and heat effects in the wall cavity directly behind where the burnt area was on the outside. She collected samples to determine whether there was the presence of flammable fluid. As a result of subsequent analysis, petrol was detected on the sample. Ms Noble stated that the burn patterns, and the soot around the vent and on the wall, were consistent with the burning of flammable liquid vapours. She noted direct burning or fire damage in the wall cavity but not inside the building. Ms Noble considered that the burn patterns, and the pattern of fire damage, were consistent with the fire starting outside the premises, and the heat and soot spreading into the wall cavity through the vent and the backs of the bricks. She considered that the fire had started in the outside area, assisted by the presence and use of petrol.
CCTV footage from the camera fixed outside the applicant’s home in 1 Yvette Drive, Rowville was tendered in evidence. It demonstrated that, on 19 January 2011 at 10.54 pm, the white Magna arrived at the applicant’s home and parked in a parking bay on the east side of Clauscen Street, which intersected with Yvette Street. A man, who was wearing white runners, alighted from the vehicle. Two hours later, at 12.49 am, a man who was alleged to be the applicant, was depicted coming out of his residence, standing next to the driver’s door of the car and then going back inside the house. He was wearing a dark long sleeved top, blue jeans and white runners. Ten minutes later, at 12.59 am, a man with short hair and solid build, who was alleged to be the applicant, wearing the same clothing, got into the driver’s seat of the vehicle and drove off. Subsequently, at 1.39 am, the footage depicted a man walking alone from the garage in the Yvette Drive home around the bush in the direction of the gateway to the main entrance to the residence.
The tracking device, that was attached to the white Magna, recorded the vehicle travelling southbound in Clauscen Drive, Rowville at 12.59 am. The vehicle then drove northbound along Westminster Drive, westbound along Wellington Road, westbound along the Monash Freeway, and then exited the Monash Freeway off ramp at Forster Road, Mount Waverley at 1.09 am. The vehicle then travelled along Forster Road and Waverley Road to Stephensons Road. It entered Mummery Street at 1.14 am, and was stationary in that street between 1.15 am and 1.24 am. It then drove along a direct route to the applicant’s home in Yvette Drive, becoming stationary there from 1.39 am.
Prosecution case ― charge 2 (St Mary’s Fire, 20-21 January 2011)
Father Barry Moran was the parish priest at St Mary’s at 208 Dandenong Road, St Kilda between 2000 and 2016. The church was located at the intersection of Dandenong Road and Westbury Street. It was possible for a pedestrian to enter the premises from Dandenong Road, Westbury Street or Alma Park.
As we have mentioned, on the evening of Thursday 20 January 2011, Father Moran went to bed at about 10.00 pm. He got up at about 6.30 am to 7.00 am on the next day. When he went downstairs, he noticed that the windows in the French doors looked smoky. He went outside, and he observed that there was charring, scorching and blistering to the bottom of the French doors to the presbytery on the ground level. The doors were approximately 50 to 60 metres from Dandenong Road.
Father Moran contacted St Kilda Police Station. Detective David Woodcock, a detective senior constable at St Kilda CIU, attended the premises at 10.00 am. He observed significant charring and burn marks on the double doors to a foyer area, and the concrete on the ground adjacent to the doors. He considered that they appeared to be the result of an accelerant having been poured on or near the doorway. There was a slight slope in the concrete, which was consistent with an accelerant having been poured, and pooling a short distance from the French doors, thus resulting in charring on the concrete.
An extract from the recording by the CCTV camera outside the Yvette Drive premises was tendered in evidence. It depicted the white Magna leaving the applicant’s premises at 9.23 pm on 20 January 2011. The prosecution produced evidence to establish that, at 10.03 pm, the applicant purchased approximately 14 litres of fuel from the BP Service Station on Marine Parade, Elwood, the purchase price of which was $20.16. Sergeant Woodcock obtained a copy of the receipt for the purchase of the fuel, which was tendered in evidence as exhibit E. He also obtained a disc containing footage from the CCTV of the store taken on 20 January. The disc was tendered in evidence, depicting the applicant wearing a black long sleeved top, blue jeans and white runners. It depicted a white vehicle at the premises at 10.11 pm. Mr Preyas Patel, the trainee manager of the service station, gave evidence. He identified exhibit E as a receipt produced by the service station. He confirmed providing to Sergeant Woodcock a copy of the disc taken from the CCTV cameras on 20 January for the period between 9.30 pm and 10.45 pm.
Subsequent analysis of the tracking device placed the applicant’s vehicle in the area of St Mary’s on eight occasions in a three hour period on the evening in question, between 9.52 pm and 12.16 am. On the last occasion, the vehicle was stationary in Dandenong Road outside St Mary’s for 10 minutes from 12.16 am until 12.27 am. The vehicle then drove off, travelling directly to the Yvette Drive premises, arriving there 24 minutes later at 12.51 am. The CCTV footage at the applicant’s premises then depicted the applicant walking into the house alone, wearing the same clothing as that depicted in the Elwood BP CCTV footage.
Prosecution case ― charge 3 (St Oswald’s Fire, 27 January 2011)
St Oswald’s was located at 100 High Street, Glen Iris. It is situated on the corner of High Street and Seaton Street. High Street runs in an east-west direction, and Seaton Street runs south from High Street. Mont Iris Avenue is parallel to Seaton Street and is one street further to the east of it.
In January 2011, Reverend Kenneth Hewlett was the vicar of the church. He did not attend at the church premises on 26 January. He was last at the premises between 5.00 pm and 6.00 pm on 25 January.
On the evening of 26 January 2011, Sergeant Bradley Guy and the informant, Detective Senior Constable Steven Wallace, were in an unmarked police vehicle in conjunction with surveillance that was being conducted that evening. At 2.40 am on 27 January, they attended at St Oswald’s and conducted an external search of it. At the rear of the church was a large door. They each noticed a bottle, at the base of the door, and that the bottle had fluid in it. There was also evidence of charring or burning at the top of the bottle and against the door close to the top of the bottle.
On the morning of 27 January, at the request of police, Reverend Hewlett attended the premises. He noted that there was some burnt rubbish on the concrete floor. He also observed the bottle with brown coloured liquid in it, and a fire mark on the door that led to a room in which gardening equipment was stored. Reverend Hewlett stated that he was in the habit of walking around the premises each evening to make sure that everything was in order. When he had walked around them on the evening of 25 January, the bottle and the rubbish were not there, and there was no sign of any burning to the door. A few days before that event, there had been a storm, and some water had flooded under the croft of the church. As a consequence, windows had been left open in the premises to air them out. Accordingly, if a person wished to effect entry into the building from the outside, that person could easily have done so by entering through the open windows. He also said that in order to access the doorway that was burnt, it was necessary to walk down a driveway, and then down some stairs which were beyond some archways. It was not possible to see the doorway, that was the subject of the fire, from the driveway. At the relevant time, Reverend Hewlett was living in premises that were near the church. He then had two dogs. He said that during the night in question, he heard the dogs barking between 1.00 am and 3.00 am, and he got up and let them into his house.
As we have noted, Mr Xydias attended the premises on 27 January. He observed fire damage against the exterior base of the door. There was a small amount of burning to the timber and the paintwork at the base. He noted the presence of the bottle and also partly burnt remains of a firelighter. On subsequent examination, the firelighter was shown to be a white spirit-based material that was commonly used. The contents of the bottle were found to be petrol. Mr Xydias concluded that the point of origin of the fire was at the base of the door from the exterior. There was nothing accidental about the fire. It was due to deliberate ignition by a match or cigarette lighter. He did not consider that there was any accelerant poured around the area. Mr Xydias examined the building and there did not appear to be any evidence of a break-in.
Ms Irene Jelic, a forensic officer within the biological sciences group at VPFSC, conducted an analysis of DNA on the bottle that was found at the scene. A sample was taken from the outer surface of the bottle and compared with a biological reference sample taken from the applicant. On testing of the sample taken from the bottle, there was found to be a partial DNA profile that matched the applicant’s DNA profile. On application of the statistical likelihood ratio, the applicant was 46,000 times more likely to be the source of DNA within the biological sample taken from the bottle than if that DNA originated from another person chosen at random from the Australian Caucasian population.
The CCTV footage at the Yvette Drive premises at 10.56 pm on 26 January 2011 depicted a person walking along the pavement towards the house, disappearing briefly, but then re-appearing to cross the street before disappearing again. The person then came out of the house, got into the vehicle and drove off. Mr John Thompson, who was then a surveillance operative with Victoria Police, was conducting surveillance on that evening. He identified the person depicted in the CCTV footage as the applicant. At 11.00 pm, Leading Senior Constable Thomas Prpic, who was also performing surveillance duties, observed the white Magna park on the east side of Clauscen Street outside Yvette Drive. He observed the applicant get out of the driver’s seat wearing blue jeans and a white tee-shirt. He walked out of view, but then reappeared at 11.04 pm. The applicant at that time stood briefly beside the vehicle and bent over. He then disappeared from view. Leading Senior Constable Jackson, who was also conducting surveillance, saw the applicant ‘doing squats’ at the rear of the vehicle. The CCTV footage, at 12.39 am on 27 January, depicted a man outside the premises with short hair, and wearing a dark long sleeved top, blue jeans and white runners.
Senior Constable Jackson next saw the applicant’s vehicle at 1.00 am in High Street near Stephensons Road, Mount Waverley. It was then travelling in a westerly direction. Senior Constable Jackson followed the vehicle to Huntingdale Road and pulled alongside it at the red lights. When he did so, he recognised the applicant as the driver of the vehicle.
Senior Constable Jackson next saw the vehicle in High Street at 1.05 am, and he subsequently saw it again at 1.20 am parked in Mont Iris Avenue approximately ten metres north of Dent Street. He saw the applicant get out of the vehicle and start to walk north down the centre of the roadway, a couple of paces from the vehicle. Senior Constable Jackson, who was then travelling west along Dent Street, did a U-turn, and returned to travel east. As he did so, he saw the applicant standing on the corner of Dent Street in the shadows. The applicant then walked away from that position and started to walk back towards his vehicle. By the time Senior Constable Jackson had returned again down Dent Street, the applicant’s vehicle had moved off.
At 1.25 am, Senior Constable Ray Cook, who was also conducting surveillance duties, observed the unoccupied white Magna parked on the kerbside facing north in Seaton Street, Ashburton. At 1.27 am, Leading Senior Constable Prpic was on the north side of High Street Road walking east towards Seaton Street. He saw the white Magna turn right from Seaton Street into High Street Road and drive off. Senior Constable Prpic was unable to see who the driver was, but he confirmed that there was one person only in the vehicle.
The evidence from the tracking device demonstrated that the white Magna had been stopped in Seaton Street for about six minutes from 1.17 am until 1.23 am. It then showed that the vehicle travelled directly from Seaton Street to Yvette Drive arriving home at 1.40 am. The CCTV footage fixed outside Yvette Drive showed the vehicle arrive at 1.41 am and drive straight into the garage.
Prosecution case ― charge 4 (Tanner’s Fire, 31 January 2011)
Tanner’s was situated at 232 Blackburn Road, Syndal, a short distance south of the intersection of Blackburn Road and High Street Road. It was located between Matthew Street and Tricks Court, which each ran from the west to east from the east side of Blackburn Road. Pimm Court is a short street that ran in a northerly direction from Matthew Street. Shirley Avenue and Hunter Street each ran south from Matthew Street and were respectively about 50 metres and 100 metres from Tanner’s. There was a laneway behind the shops that fronted Blackburn Road and which ran between Tricks Court and Matthew Street.
In January 2011, Mr Peter Schache was a baker and pastry chef and the owner of Tanner’s. On Sunday 30 January, he worked at the store until it closed at 1.30 pm. At about 2.10 am on 31 January, Mr Schache received a telephone call from his father, as a result of which he attended the store at 2.30 am. He observed fire trucks attending and a lot of smoke. He identified photographs which depicted the fire damage at the rear of the premises.
In January 2011, Daniel Tanner lived about 300 metres from Tanner’s ‘as the crow flies’. At 1.45 am on 31 January 2011 he was awake. He smelt an unusual smoke odour. Having checked his own home, he walked down Matthew Street, and noticed that, as he did so, the odour became stronger. He saw plumes of smoke when he got to the car park that was near the rear of Tanner’s. Accordingly, he telephoned triple zero at 1.54 am, but was told that a fire brigade was already on the way.
Ms Effie Portelli visited the home of her sister-in-law at Mount Waverley on the evening of 30 January 2011. When she and her daughter departed from there at 1.40 am, they noticed smoke in the sky. When they were opposite the Syndal shops on Blackburn Road, she passed Matthew Street, and turned right into Tricks Court. At that time, the flames were ‘as high as the building’, and she could hear a lot of sounds like explosions. She telephoned the emergency number triple zero at 1.50 am, and was told that she was the second person who had called. A short time later the fire brigade attended.
As we have mentioned, Mr Xydias attended the premises on 31 January and conducted an examination. He noted damage in the vicinity of the rear storeroom and door. He considered that the point of origin, or the seat, of the fire was next to the doorway in the south east corner at the rear of the bakery. The ignition point was at the right hand corner of the door. He noted spalling of the concrete ― that is, cracking or breaking and flaking of the concrete due to heat. On examining the premises internally, he noticed that the fire had progressed in the doorway. He also detected what he believed to be flammable or combustible material in the doorway. He took a sample from the soil and the charred debris from outside the rear door. On testing, it proved to contain kerosene. Mr Xydias said that there was no indication that the fire had resulted from an electrical fault or that it was accidental in origin. He considered that the fire was likely to have been ignited directly by a match or a cigarette lighter.
An extract from the CCTV footage outside the Yvette Drive premises depicted the white Magna reversing out of the driveway at 9.45 pm on 30 January. At 10.05 pm, the applicant was observed by Leading Senior Constable Rodney Heinan (a member of the SSU) to park the vehicle in Rosstown Road, Carnegie and to walk into an internet café.
At 11.28 pm, Detective Sergeant McGibbony, the team leader of the SSU operation on that night, observed the applicant enter the driver’s seat of the vehicle. Subsequently, McGibbony followed the applicant’s vehicle to Highbury Park. There the applicant parked his vehicle, and walked into the vicinity of the playground equipment. At 12.26 am, Leading Senior Constable Heinan observed the applicant return to his vehicle, open and close the boot, and then enter the driver’s seat and drive off. About ten minutes later, the vehicle returned to Highbury Park and parked again in Gareth Drive. The applicant exited the driver’s seat and entered the park. He then returned, opened his boot and closed it, entered the driver’s seat, and drove away at 12.52 am. The vehicle was then followed, but contact was lost at about 1.11 am while the applicant’s vehicle was travelling south in Stephensons Road, Mount Waverley.
At 1.19 am, Detective Sergeant McGibbony observed the applicant’s vehicle exit Pimm Court, Glen Waverley and travel west in Matthew Street, with the applicant driving. Sergeant McGibbony followed the applicant, and at 1.34 am observed his vehicle to park in the garage of 1 Yvette Drive, Rowville. CCTV footage that was tendered at the trial denoted that at 1.31 am (CCTV footage time) the applicant had returned to his home address. The CCTV footage depicted the applicant holding what appeared to be a large (two litre) plastic soft drink bottle.
The product of the tracker device noted that at 1.12 am the applicant’s vehicle had driven eastbound in Matthew Street crossing the intersection of Shirley Avenue. At 1.13 am it was stationary in Pimm Court. It remained stationary until 1.17.22 am. It was next detected at 1.17.53 am travelling south in Blackburn Road. From there it traversed a direct route to the applicant’s premises at Yvette Drive, Rowville.
Prosecution case ― charge 5 (Croxley Child Care Centre Syndal Fire, 3 February 2011)
Croxley Child Care Centre was located at 37-39 Hunter Street, Syndal. The child care centre was next to the railway line. Adjacent to the railway line was a walkway. It provided access to Shirley Avenue and to Hunter Street, each of which ran in a northern direction from the walkway.
The fire, that was the subject of charge 5, occurred a short time before 2.15 am on 3 February 2011. Mr Xydias, who attended the premises later that morning, observed that the fire had originated outside the southern end of the building against the southern exterior wall that was adjacent to the driveway. The fire had caused significant damage to several of the rooms that were on the southern side of the building, and on that side the windows had either melted or burnt away. There was no indication that anyone had broken into the premises. Mr Xydias was of the view that the point of ignition was a couple of metres from a unit attached to the building. He observed that there was severe burning down to the ground level. Mr Xydias considered that the fire was likely to have been ignited directly by a match or cigarette lighter. A sample of soil was taken from the area which Mr Xydias considered to be the point of ignition. On analysis it was found to contain petrol.
Sergeant Paul Stevens was the team leader of the group performing surveillance duties in relation to the applicant on the evening of 2 and 3 February 2011. At 9.47 pm on 2 February, Sergeant Stevens observed the applicant to park his vehicle in Edinburgh Street, and walk to Doherty’s Gymnasium. The applicant was then wearing a black singlet and black shorts, and he was carrying a red Eco shopping bag. At 10.33 pm, he was observed to exit the gymnasium, enter his vehicle and move off. The applicant was the driver and sole visible occupant of the vehicle. At 10.48 pm, Sergeant Stevens observed the applicant’s vehicle parked outside the Yvette Drive house. He saw the applicant exit the vehicle and move inside the house.
At 12.50 am on 3 February, the CCTV showed the applicant walking from his residence to the car that was parked on the street. He was then wearing a dark long sleeved top, blue jeans and white runners. He entered the vehicle and drove off. Between 1.31 am and 1.34 am, the tracker device detected the vehicle to be stationary in a car park behind a shopping centre in Holmesglen. At 1.34 am, Sergeant Stevens followed the vehicle to Myorra Court, Chadstone. The vehicle drove to the end of the court with its lights on. It then drove out of the court and turned right into the car parking area between Warrigal Road and Myorra Court. He observed the applicant get out of the vehicle and walk east on the footpath that ran along the south side of the railway line. The applicant was wearing a black long sleeved top, blue jeans and white runners. At 1.39 am, the applicant returned to his vehicle and drove off. At 1.42 am, Detective Senior Constable Myers, who was also attached to the SSU, observed the applicant exit his vehicle that was parked in Batesford Road near the intersection of Power Street. The applicant walked into a laneway leading to the rear of a strip of shops. At 1.42 am, the applicant exited the laneway, returned to the vehicle and drove off. The tracking device detected the applicant’s vehicle to be stationary at Ashwood Reserve Carpark between 1.48 am and 1.55 am. He then left the reserve and drove directly to Shirley Avenue.
At 2.10 am, Sergeant Stevens observed that the applicant’s vehicle had turned into Shirley Avenue which was a dead-end court. He saw the applicant get out of the vehicle and continue to walk into the bowl of the court. At the end of the court there is a laneway that leads to a further path that runs east-west along the railway line. At 2.16 am, Sergeant Stevens observed the applicant running out of the laneway into the bowl of Shirley Avenue, and get into his vehicle and drive away at a fast speed.
Leading Senior Constable Adam Kane was also attached to the SSU team on the evening of 2 February to 3 February. At 2.16 am, he made his first observation of the applicant. He was informed that the applicant had parked his vehicle at the southern end of Shirley Avenue, Glen Waverley and exited the vehicle, to walk towards Syndal Train Station. Leading Senior Constable Kane parked his vehicle on the west side of Blackburn Road and immediately walked towards the Syndal Train Station along the walkway that led immediately north of the railway line in a western direction. On his left were the rear of the addresses backing onto the railway line, and on the right was the retaining wall next to the railway line. Leading Senior Constable Kane walked in an easterly direction along the footpath. When he was about 40 metres from Hunter Street, he observed a male run from the north end of the street into the walkway. The male ran directly towards him in a westerly direction. He was wearing a black long sleeved top, blue jeans and white runners. As the male ran towards Senior Constable Kane, he looked up, slowed and then baulked, and reduced his speed to a shuffle to continue in a westbound direction. From the time that the man looked at Senior Constable Kane, he maintained eye contact with him until they passed shoulder to shoulder. Senior Constable Kane positively identified the man as the applicant from the photograph that had been shown to his team at the commencement of the shift. The photograph was tendered in evidence.
After they passed each other, Senior Constable Kane kept the applicant under observation and saw him make a right hand turn to be northbound at the end of Shirley Avenue. Senior Constable Kane relayed that information over his radio. He could hear Sergeant Stevens saying that he could observe the applicant go back to his vehicle, and the vehicle move off immediately. As Senior Constable Kane continued to walk to Hunter Street, he could see and smell a small amount of smoke over a timber fence. He noticed that the smoke was coming from under a weatherboard building that appeared to be a house. He could hear crackling of debris catching alight. Accordingly, Senior Constable Kane ran to the front door, believing that it was a house. He banged and kicked on the front door.
Senior Constable Kane then realised that the building was in fact a child care centre. He telephoned triple zero on his mobile telephone. By that time, the building was completely alight. A short time later the fire brigade arrived.
In his evidence, Senior Constable Kane stated that he positively identified the applicant before the applicant had passed him, about ten metres east of his position on the walkway. He said he could clearly tell that the person, who he saw, was the applicant, because the photograph of him was a very good likeness.
At approximately 2.15 am on 3 February 2011, Detective Sergeant Stormonth, of the Arson and Explosives Squad, received notification of the fire that occurred at the child care centre in Syndal. He was then in company with Detective Sergeant Scott Barnes. They monitored the radio, and intercepted the applicant driving the white Magna on the Monash Freeway just past the Blackburn entry ramp. At that point, the applicant was arrested and cautioned. He was subsequently conveyed to Glen Waverley Police Station. Detective Sergeant Barnes took possession of the applicant’s clothing, which included a dark long sleeved upper garment and a pair of white runners.
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
As noted earlier, the applicant relies on 12 grounds in support of his application for leave to appeal against conviction. For obvious reasons, we will defer considering and determining ground 1 (aggregation of errors), until we have analysed each of the other grounds.
Ground 2 ― admissibility of Internet exhibits
By his second ground, the applicant contends that the trial miscarried due to the admission of certain internet exhibits. The exhibits consisted of three YouTube videos, a short excerpt from a further video and extracts from a website entitled ‘Forbidden Truth Media’.
As we have mentioned, the YouTube videos show a man wearing a balaclava and sunglasses. The man calls himself ‘Travis Truman’ or ‘Seer Travis Truman’. His voice may have been disguised by the use of technology. The prosecution relied on an array of evidence in support of its case that the person appearing in the videos was the applicant. That evidence included a blue cigarette lighter found in the applicant’s car, a balaclava and a pair of sunglasses found in his bedroom and a silver cigarette lighter found in his bathroom. Each of these items was said to be worn or depicted in one or more of the videos or another short video excerpt featuring ‘Travis Truman’. In addition, evidence was given of PayPal, banking and telephone records which it was said showed that the applicant was responsible for a website which the speaker in the three YouTube videos described as ‘my website’. Those links were made through a Fujitsu laptop computer and a Toshiba hard drive found in the applicant’s bedroom.[2]
[2]The applicant did not accept that the prosecution had established that he was the sole occupant or user of the bedroom, the bathroom or the car, but it was plainly open to the jury to link the items found in those places to the applicant.
It will be necessary to set out the above ‘linking’ evidence at greater length when considering ground 4 (unsafe and unsatisfactory conviction). For present purposes, it suffices to say that the trial judge ruled that the YouTube videos were relevant because it was arguable that the applicant was the author of those videos and the man appearing in them. That ruling is not sought to be challenged. Instead, under ground 2, the applicant contends that the YouTube videos ought to have been excluded from evidence on a number of different grounds. In that context, the applicant contends that the trial judge overstated the probative value of the videos. It will be necessary for that purpose to have regard to some of the supporting evidence upon which the judge relied in finding that the videos were relevant.
The applicant makes more limited submissions in relation to the website extracts. It will be convenient to defer consideration of that aspect of ground 2 until after the arguments concerning the videos have been addressed.
YouTube videos
The YouTube videos constituted three of a total of 44 videos uploaded to the internet, copies of which were discovered on the Fujitsu laptop. The shorter excerpt video, which was relied on only to show the sunglasses worn by the speaker, was part of another of those 44 videos.
The videos had been uploaded to YouTube. The titles of the three videos were ‘Expert Arson Insight’, ‘Arson Insight Part I’ and ‘Arson Insight Part II’. Each of the videos shows the disguised man in close-up, addressing the camera. ‘Expert Arson Insight’ commences with a title page containing the words in capitals ‘Seer Travis’ Truth T.V. Series 2’, surrounded by images including pictures of Carl Williams, Ted Bundy (an American serial killer) and a man with a gun to his head. In the video which follows, the speaker describes the ‘tools’ of ‘the arsonist’, including leather gloves (which he is wearing and shows to the camera), matches or a ‘more reliable’ cigarette lighter. He refers also to accelerants such as petrol or kerosene, which he says are not necessary (giving the lighting of bushfires as an example).
The speaker goes on to say that ‘all arsonists are just simply the victims of society … of extreme child abuse, bullying, subjugation and victimisations by their society’. He continues:
In actual fact, he is using arson to strike and hit his society back, as a form of justice, of vengeance, his own personal justice against his society that has wronged him. And this actually is justice, folks, it is a form of justice and vengeance, that the individual arsonist often savours.
The speaker then refers to two ‘psychological types’ of arsonist. Both are ‘trying to get back’ at society, but the first is only trying to damage property without trying to harm anybody, whereas the second, being ‘much more victimised and abused’, lights fires in the hope that they will kill people. The second type of arsonist is said to lack the initiative or courage to kill people face to face but ‘really is, in his mind, a serial killer’. The video concludes with an expression of hope that it has been found ‘informative’, and with a reference to the speaker’s website for ‘more information’.
In ‘Arson Insight Part I’, the speaker states that ‘the arsonist’ is a ‘tortured victim creation of society’ and is ‘like a serial killer’ because he ‘is attacking his enemy, society, and trying to do it harm and damage’. The speaker says that arsonists ‘have every right’ to take such action. He repeats the statements about two ‘types’ of arsonist and says, as to the second type:
Now, this type of arsonist, well … he is motivated by much deeper rage, but even so if he was to burn hundreds of human beings to death with no remorse, and he would go out and do it again … he has still every right to do this … he’s just reflecting his life experiences as shown by his lie based society. … Society is guilty … of heinous genocides, and is in no moral position to pass any legitimate judgment, let alone punishment, even on this class … of arsonist.
In this video, the speaker goes on to mention the ‘equipment’ an arsonist needs to attack society ‘and possibly murder human beings via arson attacks’. He says that the person cannot take taxis or public transport because they often have cameras and are traceable. Instead, he should use his own car, ensuring that it is not followed and that no police tracking device is installed on it. He should also make ‘timing devices’. He then describes the construction and use of such a device.
‘Arson Insight Part II’ continues from the previous video, repeating the last part of the material before describing how the timer described earlier will work in practice. The speaker advises ‘you should never stand around and watch because this is how most arsonists are apprehended by their society’. Later, he says:
You should also never ever return to the scene of the crime or … have anything in your home or connected with you, that could ever be identified, not only with the making of the timing device but with the actual crime scene. Doing things this way will ensure optimum revenge on society experience for … many people.
The speaker suggests ‘maximum caution’ in returning to the scene of a fire, and says that a nearby train line might be a good way of observing ‘your handiwork’. The video concludes:
I hope that that has been instructive. Whether or not you are an arsonist or perhaps you are a student studying criminology, or … for just your personal informational needs, I hope that this video has been quite informative on the subject of arsons. However, at the same time, I really couldn’t care less what you – whether or not you do these things or … whether or not you find any value in this video. I am making this video for my benefit, for my reasons and I am going to post this video, okay, as I see fit. Okay. Now, my final word is, is that society brings these attacks on itself and it absolutely deserves them. The individuals who undertake these actions have got every right to do so and society is … a rotten, vile, disgusting system of … arsehole citizen slaves who absolutely deserve whatever criminals thrust their way.
The speaker again concludes with a reference to ‘my website’ for ‘more information’.
The judge identified three purposes for which the prosecution sought to adduce the evidence of the videos. First, it was submitted that the videos gave instructions as to modus operandi, especially about how not to get caught when committing arson. Secondly, the prosecution sought to establish that the motive for the speaker on the videos was to exact retribution or revenge upon society for what it was said to have done to the speaker, in particular that the speaker had been a victim of the evils of society. Finally, the evidence was said to show that the speaker had an interest in and support for the crime of arson.
The judge determined that the evidence was circumstantial evidence rather than tendency or coincidence evidence, as the applicant had argued. In that regard, he relied on a number of cases involving Commonwealth terrorism offences, namely Benbrika v The Queen,[3] Elomar v The Queen,[4] Fattal v The Queen[5] and Higgins (a pseudonym) v The Queen.[6] The judge noted that the applicant had argued that these cases were of little relevance because in each of them an element of the offences involved a particular state of mind, whereas in the present case the issue in dispute was identity rather than any state of mind or intent. The judge accepted that the distinction was correctly drawn but held that the cases nonetheless established general principles that had application in the present case. The judge held, relying on the above cases, that evidence of motive may involve a general animosity towards a particular country or society. The judge held that ‘the expressions of the man in the balaclava when he speaks [of] revenge and retribution and why arson is justified are words that give significant insight into the accused’s motive to commit the crimes’. The judge held that it was well open for the jury to consider that the man in the balaclava was the applicant and that he was someone who says that he has been hurt and damaged by society and society must therefore pay the price. The judge stated that the fact that it was open to the jury to conclude that the accused was the man in the balaclava speaking on the YouTube videos elevated the probative value of the evidence to a very high level indeed.
[3](2010) 29 VR 593, 655 [283]–[286] (Maxwell P, Nettle and Weinberg JJA) (‘Benbrika’).
[4](2014) 316 ALR 206, 272–81 [325]–[378] (Bathurst CJ, Hoeben CJ at CL and Simpson J) (‘Elomar’).
[5][2013] VSCA 276 [39]–[47] (Buchanan AP, Nettle and Tate JJA) (‘Fattal’).
[6][2016] VSCA 47 (Redlich, Weinberg and Osborn JJA) (‘Higgins’).
The judge then turned to the question whether the evidence was tendency evidence within the meaning of the Evidence Act 2008. He held that the prosecution was not seeking to prove that the applicant ‘had a particular tendency … to act in a particular way’ within the meaning of s 97(1). Rather, the prosecution was seeking to prove that the accused made three videos about arson and uploaded them to YouTube. The purpose of proving that the accused made the videos was so that when the prosecution presented other evidence, it could inform the jury that the probability that he in fact lit the fires was increased by reason of the fact that he had a motive of revenge against society. In addition, if the jury were satisfied that the applicant was the speaker on the videos, the features of some of the fires that aligned with the video instructions or modus operandi added to the probabilities that the applicant was the arsonist. The YouTube evidence was a piece of circumstantial evidence, not being led for tendency purposes. The judge stated that the evidence allowed the jury to pull together a range of pieces of evidence so as to draw the conclusion beyond reasonable doubt that the applicant was the arsonist in one, some or all of the fires, rather than calling on tendency reasoning. As such, the requirements of s 97 of the Evidence Act did not arise for consideration.
The applicant had sought to have the evidence excluded, in the alternative, by operation of s 137. He had argued that the probative value of the evidence was low and insufficient to outweigh the unfair prejudice of the overall look, tone and words of the videos. He argued that the videos merely discussed arson and the motivation of arsonists as ‘amateur criminology’. He also argued that the speaker referred to other persons and was not speaking of himself and his own interests. Further, the applicant submitted that the three videos had been ‘cherry picked’ from many others that did not have any aspect of motive for arson in them at all. He submitted that the same applied to the whole website which was said to cover many topics unconnected with criminal motives or activity.
The judge considered these arguments to be of little moment and to amount only to points about the weight of the evidence which should be put to the jury. He also considered that the submissions significantly underplayed the words and intent of the videos. The judge pointed out that, at the end of the ‘Arson Insight Part II’ video, the speaker states: ‘I hope that that has been instructive … I hope that this video has been quite informative on the subject of arson’. The speaker then went on to say that he could not care less if it was of any value because he was making the video ‘for my benefit, for my reasons’.
The judge also considered that the time gap between the present offences and the uploading of the videos did not diminish the probative weight of the videos, as the applicant had contended. The times involved were months if not weeks, whereas in Elomar, the gap was one of many years.
The judge concluded that, by reason of the purposes of motive, interest in arson and to a lesser extent modus operandi, the YouTube videos had significant or very high probative value in proving that the applicant was the arsonist in one, some or all of the fires. He then turned to consider the question of unfair prejudice. The applicant submitted that unfair prejudice attached because the speaker was in a balaclava and the content was at times extreme. The judge held that, in his view, the jury would quickly come to see that the fact that the speaker was wearing a balaclava was to avoid identification, rather than because he was a person who committed all manner of violent crimes. He held that any prejudice that flowed from the disconcerting appearance of the man in the video could be ameliorated to a large degree by direction. Further, any remaining prejudice was not of a kind or dimension that meant that the very significant probative value of the evidence did not outweigh the danger of unfair prejudice.
The judge then considered whether unfair prejudice arose as a result of the content of the videos. He noted that there were individual lines used that were ‘problematic’ and which could be said to give rise to a degree of unfair prejudice, but held that none were sufficient for the evidence of that particular line to be excluded. He described the high point of this as being when the speaker referred to two types of arsonists, and made it clear that the ‘serial killer’ type of arsonist was well justified because the evils of society were such that society had in effect brought the calamity upon itself.
The judge held, taken in context, these references were not so prejudicial as to require the evidence to be excluded. He held that the jury would well understand that the speaker was making the point that the evils of society are such that arson that takes lives, or the arsonist who intends to take life, are still justified. The jury would not conclude that the speaker intends to take lives or has characteristics of a serial killer, rather that the speaker was endeavouring to give an informative overview of the types of arsonists. The judge noted that the speaker said at the end of one video ‘I hope you found this video informative’.
The judge declined to exclude the evidence by operation of s 137. He held that for the same reasons, the discretion in s 135 was not engaged.
Finally, the judge noted that, if he was asked to do so, he would give the jury a firm direction not to engage in tendency reasoning in relation to the videos. He would further direct the jury not to be disconcerted or distracted because the speaker wore a mask and referred to serial killers, and that the sole purpose of the evidence was to establish that the accused had a motive, an interest in arson and support for it, and to establish aspects of the modus operandi spoken about in the videos.
Out of an ‘abundance of caution’ the judge also ruled that, if the evidence was properly characterised as tendency evidence, he would have ruled that it was of very significant probative value and that this value substantially outweighed the prejudicial effect on the applicant, such that the evidence would not be excluded by operation of ss 97 and 101 of the Evidence Act.
There were several aspects to the applicant’s submissions under this ground. It is convenient to set them out briefly at the outset. In short, the applicant submitted that:
(a) the YouTube evidence ought to have been characterised as tendency or coincidence or context evidence and the terrorism cases relied upon by the judge were distinguishable in that regard;
(b) the videos did not establish that the speaker was referring to his own motive, rather than that of others;
(c) the probative value of the videos was low because:
(i) there was insufficient evidence to link the videos to the applicant through material on the Fujitsu laptop found in the applicant’s bedroom;
(ii) there was a ‘temporal gap’ between the creation of the videos and the offences;
(iii) the motive articulated in the videos was too generalised and vague to connect it with the offences; and
(iv) the modus operandi material could describe almost any fire and should not have been admissible in relation to all charges in any event;
(d) the videos were unfairly prejudicial; and
(e) the videos ought to have been admitted, if at all, only in edited form.
It is convenient to consider these arguments in turn.
Were the videos tendency evidence?
The applicant submitted that the videos amounted to tendency evidence. He pointed to the alleged similarity between the offences and the modus operandi in respect of both the actions and state of mind of an arsonist as described in the videos. In addition, he submitted that an interest in arson was itself a tendency or propensity, and that a motive of lighting fires as a result of perceived injustices of society was effectively the same as a tendency or propensity to light fires.
The applicant submitted that the cases relied on by the judge were distinguishable because they involved offences where the relevant state of mind or motive of the accused was an element of the offence. In particular, the cases required the Crown to show that the accused was a member of a terrorist organisation or had engaged in conduct relating to a terrorist act, which involves proof of the accused’s state of mind with respect to the terrorist element of the relevant offence. In addition, the speaker in the videos addresses the motives of other persons, rather than his own.
Section 97 of the Evidence Act, which contains the ‘tendency rule’, applies to evidence adduced ‘to prove that a person has or had a tendency … to act in a particular way, or to have a particular state of mind’. In respect of the prosecution’s reliance on the video evidence for the purpose of establishing motive or an interest in arson, the tendency asserted by the applicant is a tendency to have a particular state of mind. In respect of the use of the evidence to show elements of modus operandi, the tendency is to act in a particular way. The cases relied on by the judge, which the applicant seeks to distinguish, concern the ‘state of mind’ limb of tendency evidence.
Benbrika concerned charges of membership of a terrorist organisation and related offences. It was argued that the trial judge ought to have warned the jury not to reason that, because the applicant had possession of videos in which people were beheaded, he was likely to be the kind of person who would commit acts of that kind.[7] Reliance was placed on s 398A of the Crimes Act, which formerly provided for the admissibility of propensity evidence. This Court rejected the argument that the evidence of the videos was led as evidence of a propensity to commit offences of the nature charged. Instead, the evidence was tendered ‘as direct proof of the actual offences charged’.[8] The whole point of the evidence was that possession of the videos was a mark of membership of a terrorist organisation. Such possession could be used, along with other evidence, ‘to infer a willingness to engage in just such conduct’.[9]
[7]Benbrika (2010) 29 VR 593, 655 [283] (Maxwell P, Nettle and Weinberg JJA).
[8]Ibid 655 [284].
[9]Ibid 655 [285].
The distinction drawn in Benbrika between evidence being led by way of propensity and evidence led by way of direct proof of an element of the actual offence is illustrated by subsequent cases. In Fattal, which concerned an alleged conspiracy to do acts in preparation for or planning of a terrorist act, evidence was admitted of two recorded conversations in which the accused had expressed ‘thanks to Allah’ for the fact that factories were closing, the Black Saturday bushfires had occurred and Melbourne’s water storage was ‘empty’, commenting ‘these filthy people they are coming down … hard, by Allah’.[10] The Court did not address the possibility of tendency reasoning. It held instead that motive was an integral part of the Crown’s circumstantial case of intent, and the remarks were powerfully relevant to that issue.[11] The Crown had advanced the importance of motive on the basis that, without evidence of motive, a rational jury might well not be persuaded that an Australian citizen would engage with others to undertake acts preparatory to a suicide attack on an army barracks. Knowledge that the accused despised Australian non-Muslims as ‘filthy people’ and exalted in the perceived decline of Australian society, was a powerful reason for thinking that his actions and intention were as alleged.[12] The Court accepted this reasoning.
[10]Fattal [2013] VSCA 276 [39] (Buchanan AP, Nettle and Tate JJA).
[11]Ibid [44].
[12]Ibid [43].
The judge’s finding as to the applicant’s level of intellectual functioning
The applicant further submitted, under ground 1, that the judge erred in finding that the applicant was of above average intelligence.
In support of that submission, the applicant relied on an extract from a report of a psychologist, Ms Vicki Bitsika, who examined the applicant in 1994 when he was 16 years of age. Ms Bitsika administered testing to the applicant, which revealed that the applicant then achieved a verbal scale IQ of 81, a performance scale IQ of 94, and a full scale IQ of 86 (plus or minus six points). Ms Bitsika noted that that result placed the applicant within the low average range of intellectual ability. She stated that the 13 point difference between the verbal and performance scales was consistent with the pattern of skills, strengths and weaknesses that are characteristic of Asperger’s disorder.
The judge was not bound to act on the test results obtained by Ms Bitsika. Ms Bitsika had undertaken the tests some 22 years earlier than the plea. On the other hand, Mr Watson-Munro examined the applicant, over a period of ten sessions, during the period of ten months that preceded the plea. Mr Watson-Munro did not administer any intellectual quotient testing. However, he was an experienced psychologist, and he had the advantage of examining the applicant during those ten sessions. As mentioned, Mr Watson-Munro considered that the earlier testing of the applicant’s intelligence was an underestimate, and he stated that the applicant was ‘obviously of high average to superior intellect’.
Further, and relevantly, the judge had the opportunity to observe and listen to the applicant over a particularly long period of time during both the pre-trial proceedings and the trial itself. As mentioned, in the trial, the applicant engaged in very detailed and focussed cross-examination of a number of witnesses. He raised a large number of objections to the admissibility of evidence, often on very technical grounds. His final address to the jury was structured and focused, and very detailed.
The judge’s conclusion, as to the applicant’s intellect, was relevant to aspects of sentencing. First, it was relevant to the issue of the applicant’s moral culpability, which we have already discussed. Clearly, even on the evidence of Ms Bitsika, the applicant was possessed of sufficient intellectual functioning to understand the nature and quality of his actions, to know that what he was doing was wrong. Secondly, the finding by the judge, as to the applicant’s intelligence, was relevant to the issue of specific deterrence. In his reasons for sentence, the judge stated that specific deterrence was a concept that was well understood by the applicant, in light of his experience in the criminal justice system and his intelligence. That proposition would hold good, even if one were to prefer the evidence of Ms Bitsika as to the level of the applicant’s intellect. Axiomatically, the proposition was on an even stronger basis given the judge’s appropriate finding as to the applicant’s level of intellectual functioning.
The judge erred in respect of maximum sentence
The applicant further submitted that because the indictment charged the applicant with an offence against s 197(1) of the Crimes Act, rather than s 197(6), the applicable maximum sentence for each offence is 10 years’ imprisonment. The applicant therefore submitted that the judge erred in sentencing the applicant on the basis that the maximum sentence, for each offence, was 15 years. In the indictment, each charge was expressed in the same manner.
Charge 1 was in the following form:
CHARGE 1The director of Public Prosecutions charges that BRENDAN IAN DAVIES at Mount Waverley in Victoria on the 20th day of January 2011 intentionally and without lawful excuse damaged by fire property, namely the Mount Waverley Police Station, belonging to Victoria Police.
Statement of Offence — Arson contrary to s 197(1) of the Crimes Act 1958.
In our view, the judge was correct in stating that the maximum sentence, for the offence thus charged, was 15 years’ imprisonment. Section 197(1) of the Crimes Act provides that a person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to a maximum of 10 years’ imprisonment. Section 197(6) and (7) state:
(6)An offence against this section committed by destroying or damaging property by fire shall be charged as arson.
(7)A person guilty of arson is liable to level 4 imprisonment (15 years maximum) despite anything to the contrary in the section.
Thus, the offence of arson, charged in the indictment, was correctly described in the indictment as an offence against s 197(1) of the Crimes Act. The description of the offence as that of arson, in each charge, had the effect that ss 197(6) and 197(7) applied to that charge. It would have been preferable if the statement of offence contained in the indictment had referred to sub-s (6). However, its omission to do so did not obviate the point that the offence, that was charged against the applicant, was that of arson, so that the maximum sentence for that offence, prescribed under sub-ss (6) and (7), was applicable to it.
Comparable cases
The applicant further contended, under ground 1, that the total effective sentence, and the sentences imposed on charges 4 and 5, were so significantly outside the range of sentences imposed in the cases to which he referred the judge as to be inconsistent with current sentencing practices for the offence of arson.
Certainly, the total effective sentence imposed on the applicant was substantially higher than the sentences imposed in cases involving multiple offences for arson, to which the applicant referred in the course of the plea before the trial judge, including the cases of Director of Public Prosecutions vChapman,[164] Director of Public Prosecutions vPeter Leslie Martin,[165] and Director of Public Prosecutions v Devereaux.[166] Further, the individual sentences imposed on the applicant on charges 4 and 5 were substantially higher than the individual sentences imposed on the offenders in each of those cases, and also in the cases referred to and relied on by the prosecution on the plea, notably, Luciano v The Queen,[167] Machhour v The Queen,[168] McDonough v The Queen,[169] Crowley v The Queen,[170] and R v Hasan.[171] The individual sentences, on charges 4 and 5, were also higher (although not substantially higher) than the individual sentences imposed on the offenders in R vNoonan[172] and R vKCF,[173] to which the prosecution also referred on the plea.
[164][2016] VCC 469.
[165][2012] VCC 1577.
[166][2016] VCC 1528.
[167](2015) 45 VR 844.
[168][2014] VSCA 225.
[169][2011] VSCA 310.
[170][2009] VSCA 176.
[171][2004] VSCA 137.
[172][2007] VSCA 5.
[173](2006) 167 A Crim R 475.
In considering the applicant’s submissions on this aspect of the sentence, two points must be kept in mind.
First, a reference to so-called ‘comparable cases’ is relevant in order to determine, in a broad manner, current sentencing practices for the nature of the offence committed by the offender. However, the limitations involved in examining comparable cases, for that purpose, must be understood. In Lieu v The Queen,[174] Beach and Kaye JJA stated:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[175]
[174](2016) 263 A Crim R 173.
[175]Ibid 186 [46].
Secondly, as the High Court has emphasised in recent cases, current sentencing practices, as revealed by the sentences imposed in comparable cases, do not constitute the fixed boundaries within which sentences, in a particular case, must be fitted. Rather, current sentencing practices, are but one of a number of factors, that are required to be taken into account by a sentencing judge pursuant to s 5(2)(b) of the Sentencing Act.
In R v Kilic,[176] the Court stated:
Their Honours in the Court of Appeal observed, correctly, that examination of cases of causing serious injury by fire may provide a relevant ‘yardstick’ by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases 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’.[177]
[176](2016) 259 CLR 256.
[177]Ibid 267 [22].
Subsequently, in Director of Public Prosecutions v Dalgliesh (a pseudonym),[178] Kiefel CJ, Bell and Keane JJ stated:
[178](2017) 91 ALJR 1063.
The balancing of the factors listed in s 5(2) of the Sentencing Act in order to arrive at a sentence that is just in all the circumstances is a matter of instinctive synthesis, as explained in Wong v The Queen by Gaudron, Gummow and Hayne JJ:
‘[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features’.
This statement was referred to, with evident approval, by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen.
While the instinctive synthesis must be informed by each of the factors listed in s 5(2), the extent to which each factor bears upon the case is inevitably a matter for judgment. The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge. The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances. Nevertheless, it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried. The question raised for determination by the Court of Appeal in the present case was whether the sentence imposed on the respondent was manifestly inadequate.
The appeal to this Court is concerned with the significance accorded by the Court of Appeal to the consideration referred to in s 5(2)(b) of the Sentencing Act in determining the question before it.
In this regard, it may be said at the outset that the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor.[179]
[179]Ibid 1067 [5]–[9] (citations omitted).
Thus, the fact that the sentences imposed on the applicant on charges 4 and 5, and the total effective sentence, were higher than those imposed on the offenders in the ‘comparable cases’ put before the judge, does not, of itself, constitute sentencing error.
However, that consideration is relevant to the ground of appeal relied on by the applicant, namely, that the sentences imposed on him on charges 4 and 5, and the total effective sentence, were manifestly excessive. In order to establish that ground, the applicant must demonstrate that those sentences were ‘wholly outside the range of sentencing options’ available to the judge in all the circumstances of the case.[180] In substance, to establish that proposition, the applicant must demonstrate that the sentences were so excessive that they must have been the product of some error in the exercise by the judge of his sentencing discretion, notwithstanding that the applicant has not been able to establish any specific error contained in the reasons for sentence.[181]
[180]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[181]House v The King (1936) 55 CLR 499, 505; McPhee v The Queen [2014] VSCA 156 [9]–[11].
As we have noted, the total effective sentence, and the sentences imposed on the applicant on charges 4 and 5, could be fairly characterised as being at the high end of the range of sentences imposed in comparable cases, if not at the top end of those ranges. That consideration, alone, does not have the consequence that the sentences were manifestly excessive. As the judge correctly pointed out, each of the offences, and in particular the offences that were the subject of charges 4 and 5, were serious. They were part of a campaign formulated and enacted by the applicant to effect vengeance on society for the wrongs that he perceived had been done to him by the various institutions of society. The offences were pre-meditated, and were calculated to destroy various institutions which, it would seem, the applicant considered epitomised the wrongs that society had done to him. In the last two cases, the offending was successful, resulting in substantial damage. Thus, objectively the gravity of the offending was high.
The subjective culpability of the applicant for the offending was also high, in that he well understood the nature and consequences of what he was setting out to achieve. As we have already discussed, his culpability was mitigated, to a moderate degree, because his offending was driven by a motivation that, on the evidence, was relevantly causatively connected with his autism spectrum disorder.
In addition, there were three mitigating circumstances, two of which were accepted by the judge. First, as accepted by the judge, as a result of the applicant’s disorder, a sentence of imprisonment would bear more harshly on him than otherwise. Secondly, the applicant was not considered to qualify for parole when the minimum term, imposed by Judge Howie, had expired, because the applicant was awaiting trial, on remand, in respect of the arson charges. As noted by the trial judge, in accordance with the principles stated in R v Renzella,[182] the applicant was entitled to have that factor taken into account in his favour. Thirdly, as discussed, the judge ought to have, but did not, take into account, as a mitigating factor, the considerable delay that had occurred between the date of his arrest on the arson charges and the date of sentence.
[182][1997] 2 VR 88 (‘Renzella’).
Notwithstanding those mitigating circumstances, we do not consider that the sentences imposed by the judge on charges 4 and 5, and the total effective sentence, were manifestly excessive, as being wholly outside the range of sentences available to his Honour. As a consequence of the specific sentencing errors, that we have found to have been established, it will fall to this Court to re-sentence the applicant. In doing so, we have formed the view that we would have sentenced the applicant to terms that were less than those imposed by the sentencing judge on charges 4 and 5, and to a lower total effective sentence. However, we emphasise that, by doing so, we will be exercising the sentencing discretion anew. The fact, that the sentences imposed by us, on re-sentencing, are less than those imposed by the sentencing judge, does not have the corollary that the higher sentences imposed by the sentencing judge were manifestly excessive in accordance with the principles that we have outlined.
New facts and circumstances — protective custody
Finally, under ground 1, the applicant has sought to rely on an affidavit sworn by him setting out the circumstances in which he has been kept, and will be kept, in prison. He submitted that those circumstances demonstrate the true significance of the proposition, accepted by the trial judge, that, as a consequence of his disorder, a sentence of imprisonment would be more onerous on him.
In short, the affidavit of the applicant states that subsequent to the sentence, due to threats that were made in relation to his safety, he was removed from the mainstream compound at Barwon Prison and initially placed in the Banksia High Security Management Unit for a period of time. While he was in that unit, the applicant was in circumstances akin to ‘solitary confinement’ with a 23 hours per day lockdown. He was subjected to regular pat down searches which stressed him due to his autistic condition, and he had no proper exercise or recreation. Subsequently, the applicant was removed from that unit, and placed into the Hoya Protection Unit. In his affidavit, the applicant has set out, in some detail, his circumstances in that unit. It is sufficient to note that those circumstances are materially more burdensome, and more restrictive, than the circumstances of a prisoner in the mainstream system. The applicant has deposed that the Hoya Unit has less space and freedom of movement. In addition, the Hoya Unit has substantially less recreational and exercise facilities. The cells are less comfortable, and the living conditions in Hoya are more cramped and less favourable than those in the mainstream unit. The applicant has also found that he has been able to have substantially less companionship with his fellow prisoners in the Hoya Unit than he did in the mainstream unit.
The matters, contained in the applicant’s affidavit, add substance to the proposition, accepted by the trial judge, that, due to the applicant’s autism spectrum disorder, a sentence of imprisonment would be more onerous on him. As we have already concluded that the sentencing discretion is reopened, on other grounds, it is not necessary for us to decide whether the matters relied on by the applicant, as to his conditions of custody since sentence, would enliven the principles that permit a court to re-open the sentencing discretion on such a ground.[183] On re-sentencing, the matters, contained in the applicant’s affidavit, are relevant to the sentencing consideration that the applicant has served, and will serve, his sentence of imprisonment in circumstances which, due to his autism spectrum disorder, are more onerous for him.
[183]See, eg, R v Eliasen (1991) 53 A Crim R 391, 394 (Crockett J); R v Rostom [1996] 2 VR 97, 101 (Charles JA); R v Babic [1998] 2 VR 79, 20 (Brooking JA); R v Duy Duc Nguyen [2006] VSCA 184 [36] (Redlich JA).
Conclusion on ground 2
For the foregoing reasons, we have upheld two of the propositions advanced by the applicant, under ground 1. First, we consider that the judge ought to have concluded, on the evidence, that the applicant’s subjective culpability for the offending was, to a moderate degree, mitigated because of the causal connection between the applicant’s congenital psychological condition and the offending. Secondly, as a result of the assurances given by the judge to the applicant in the course of sentencing submissions, his Honour ought to have, but did not, take into account, as a mitigating factor, the substantial delay between the applicant’s arrest on the arson charges and his conviction and sentence for those charges. Otherwise, we have not accepted the other propositions, advanced by the applicant, under the rubric of ground 1, as constituting any specific error by the judge. In addition, the applicant has not established that the individual sentences, or the total effective sentence, are manifestly excessive.
As we have upheld ground 1, albeit on two specific matters, it will be necessary to re-sentence the applicant. Before doing so, it is necessary to consider ground 2 of the application.
Ground 2 — Whether sentencing judge erred in applying incorrect pre-sentence detention
Ground 2 is directed to the declaration by the judge, under s 18(4) of the Sentencing Act, that the applicant had served 1,123 days on remand in respect of the offences for which he was convicted and sentenced. The applicant submitted that that calculation was incorrect, because it failed to take into account and include the period of 18 months during which he would have been entitled to parole in respect of the sentence imposed by Judge Howie, but which was denied to him because he was then on remand in respect of the arson charges.
In response, the respondent has contended that, pursuant to s 18(4) of the Sentencing Act, the calculation of pre-sentence detention was not to take into account any period during which the applicant was being held, not on the charges for which he was sentenced, but, instead, pursuant to a term of imprisonment on other charges.
The submissions made by the respondent are correct. Section 18(1) of the Sentencing Act provides that if an offender is sentenced to a term of imprisonment in respect of an offence, any period during which that offender was held in custody in relation to proceedings for the offence must be reckoned as a period of imprisonment or detention already served under the sentence. In R v Broad,[184] this Court held that s 18(1) does not apply to any period of detention served by the offender under a separate sentence. Thus, the period of pre-sentence detention in this case did not include the term of the sentence imposed by Judge Howie. On the other hand, as recognised by the trial judge in his reasons for sentence, the period during which the applicant was so in custody pursuant to the sentence of Judge Howie, and the circumstance that, because at the expiration of the non-parole period set by that sentence he was denied parole because he was also in custody on the arson charges, were factors that were to be taken into account, in the applicant’s favour, in exercise of the sentencing discretion.
[184][1999] 3 VR 31, 34–5 [11].
In sentencing the applicant on 13 April 2012, Judge Howie made a declaration that the applicant had been held in pre-sentence detention, in respect of the charges for which he was sentenced, for a period of 337 days. Section 18(2)(d) of the Sentencing Act has the effect that that period (337 days) is not reckoned as a period of pre-sentence detention for the purposes of the sentence imposed by the trial judge in this case.
For those reasons, we do not accept the submission made by the applicant that the pre-sentence detention, declared by the judge, should have included the period in respect of which he would have been entitled to, but was denied, parole under the sentence imposed by Judge Howie.
In the present case, the sentencing judge declared 1,123 days by way of pre-sentence detention. That declaration was based on the figure that was provided to the judge by the prosecution. The respondent has pointed out that that figure involved an arithmetic error, and that the correct pre-sentence detention should be 1,125 days.
In its revised response to the applicant’s written case on sentence, the respondent helpfully provided a chronology of the proceedings and pre-sentence detention. That chronology reveals that the pre-sentence detention, declared by the trial judge in this case, commenced on the date on which the sentence imposed by Judge Howie (as modified on appeal) was completed, namely, 12 March 2014. Thus, the pre-sentence detention, directed by the sentencing judge, was for the period from 12 March 2014 to 10 April 2017, the date of sentence in the present matter. As noted, the pre-sentence detention, declared by Judge Howie on 13 April 2012, was for a period of 337 days. The applicant was arrested on the arson charges on 3 February 2011. It would therefore appear that the pre-sentence detention, declared by the trial judge, did fail to take into account, and give credit for, the period between 3 February 2011 and the date at which the period of pre-sentence detention, declared by Judge Howie, commenced. It is common ground that that period was a total of 99 days. It follows that the pre-sentence detention, declared by the judge, should have been 1,224 days.
To that extent, ground 2 succeeds. As it will fall to this Court to make a fresh declaration of pre-sentence detention as from the date of re-sentencing the applicant, that period will be added to and included in the pre-sentence detention so declared.
Re-sentence
By reason of the conclusions that we have reached under ground 1, it is necessary to re-sentence the applicant.
In order to do so, it is not necessary for us to set out, at length, the observations that we have made concerning the offending, and the relevant mitigating factors, when considering the specific points raised by the applicant under ground 1. In short, the offending in the case was serious, particularly the offending that was involved in charges 4 and 5. Each of the offences was planned and pre-meditated. The applicant’s motives for the offences, to exact revenge on society for the wrongs that he considered to have been done to him, added to the gravity of the offending.
The fact that the applicant had a previous conviction for arson, and the circumstances in which that offence was committed, were matters of particular concern. By reason of that conviction, he fell to be sentenced as a ‘serious arson offender’ under s 6B(2) of the Sentencing Act. As such, the protection of the community is the principal purpose for which sentence is to be imposed and there is a presumption as to cumulation of individual sentences, while making some allowance for the principle of totality: ss 6D(1) and 6E. In addition, the offences for which the applicant was sentenced by Judge Howie, while not previous convictions, nevertheless underlined the need to protect the community from the applicant, at least until he has had the opportunity to reflect on his offending, and to gain some insight into it. In that respect, it is relevant that the judge concluded (in our view correctly) that the applicant’s prospects for reform and rehabilitation were particularly low.
As we have stated, the subjective moral culpability of the applicant was mitigated, to a moderate degree, by the relevant connection between the applicant’s congenital psychological condition and his offending. Nevertheless, the applicant well knew what he was doing, and he knew that it was illegal. His motivating purpose was to offend against society. The applicant is intelligent. In those circumstances, he is an appropriate vehicle for specific deterrence. In view of the seriousness of the offending, and the applicant’s previous conviction, it is necessary that the sentences are sufficient to bring home to him the lesson that, if on his release from custody, he were to re-offend, he would suffer a further lengthy period of imprisonment.
We have also noted that the principles of general deterrence are not moderated by reason of the applicant’s psychological condition. In short, the applicant is a suitable medium for the imposition of a sentence of imprisonment, which is of sufficient severity to bring home to any like-minded members of the community that any offending, of the kind committed by the applicant, will result in the imposition of sentences involving the deprivation of the offender’s liberty for a substantial period of time.
On the other hand, in re-sentencing the applicant, it is necessary to take into account, as a mitigating circumstance, the substantial period of delay that has taken place between the applicant’s arrest and his sentencing (and now his re-sentencing). In addition, it is appropriate to take into account, in the applicant’s favour, the fact that, because he was awaiting trial for the arson charges, he was not considered for parole at the expiration of the non-parole period set by Judge Howie.[185]
[185]Renzella [1997] 2 VR 88, 98.
Taking those matters into account, we re-sentence the applicant as follows:
Charge 1— 3 years’ imprisonment
Charge 2— 2 years and 6 months’ imprisonment
Charge 3— 1 year and 6 months’ imprisonment
Charge 4— 6 years’ imprisonment
Charge 5— 7 years’ imprisonment
The sentence on charge 5 will be the base sentence, we direct that 15 months of the sentence on charge 1, 12 months of the sentence on charge 2, six months of the sentence on charge 3, and two years and six months of the sentence on charge 4, be served cumulatively on each other, and on the sentence imposed on charge 5.
The total effective sentence is therefore 12 years and three months’ imprisonment. We direct that the applicant serve a minimum of 10 years and three months’ imprisonment before he is eligible for parole.
Pursuant to s 18(1) of the Sentencing Act, we declare that the period of 1941 days be reckoned as already served under the sentence which we impose. We shall cause a notation to be made in the records of the Court that that declaration was made.
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