Dennis Michael Gray v The Queen

[2004] ACTCA 12

DENNIS MICHAEL GRAY v THE QUEEN
[2004] ACTCA 12 (23 June 2004)

CRIMINAL LAW – appeal against sentence – appellant pleaded guilty to one count of causing a bushfire – whether sentence imposed was manifestly excessive and whether appropriate weight was given to the circumstances of the appellant – offence committed when state of extreme fire emergency –sentence not manifestly excessive.

Criminal Code 2002 (ACT), s 105
Crimes Act 1900 (ACT), s 341

Lowndes v R (1999) 195 CLR 655

Wong v The Queen (2001) 207 CLR 584

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 33-2003
No. SCC 29 of 2003

Judges:        Crispin P, Gray and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:           23 June 2004

IN THE SUPREME COURT OF THE     )          No. ACTCA 33-2003
  )          No. SCC 29 of 2003
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DENNIS MICHAEL GRAY

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Crispin P, Gray and Lander JJ
Date:  23 June 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 33-2003
  )          No. SCC 29 of 2003
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DENNIS MICHAEL GRAY

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  23 June 2004
Place:  Canberra

REASONS FOR JUDGMENT

GRAY and LANDER JJ

1. The appellant appeals against a sentence imposed upon him by a judge of this Court on 25 September 2003.

1. The appellant was charged with causing a bushfire, contrary to s 105 of the Criminal Code 2002 (ACT). The elements of the offence are that he intentionally caused the fire and was reckless about the spread of the fire to vegetation on property belonging to someone else.

1. He pleaded guilty.  His plea, of course, was an admission to both elements of the offence.  The maximum penalty provided for in the Code is 15 years’ imprisonment.  He was sentenced to imprisonment for a period of five years, the non-parole period to commence on 25 September 2003 and to expire after two and a half years on 25 March 2006.

1. The sentencing judge took into account in imposing the sentence that the appellant had spent 14 weeks in custody before the sentence was imposed.

1. Numerous grounds have been advanced on behalf of the appellant.

1. A Statement of Facts was agreed by the appellant and prosecuting counsel and placed before the sentencing judge.

1. At about 11.00 pm on 22 January 2003, two security officers, who were standing outside the Chifley on Northbourne Hotel, saw the appellant near the corner of Masson Street and Northbourne Avenue in Turner.  He was crouched down near the fence surrounding a building site and was using a lighter to set fire to grass near the fence.

1. The grass caught fire and spread to an area about eight metres by three metres behind the fence.

1. The appellant walked away from the fire but was apprehended by one of the security officers.  When apprehended, he said: ‘I’m not a firebug anymore.  I won’t light a fire again’.

1. The other security officer extinguished the fire with the assistance of other members of the public.

1. Police attended and the appellant was searched and a gas lighter was found in his right trouser pocket.  He was arrested and taken to the city watch house and interrogated.  During the course of his interrogation, he denied any involvement in the lighting of the fire.  He said that, initially, he had not even seen the fire but, later, admitted he had noticed the fire as he ran past it.  He claimed he was carrying the lighter because he was a smoker.

1. He first appeared in the ACT Magistrates Court on 23 January 2003 and was remanded in custody.

1. On 4 March 2003 he pleaded not guilty and applied for and obtained bail.  He was committed to the Supreme Court for trial.  He appeared again in the Magistrates Court on 10 March 2003 in relation to a breach of his bail.  He was remanded in custody between 10 March 2003 and 3 April 2003 when the Supreme Court released him on bail again.

1. He was due to be arraigned in the Supreme Court on 15 May 2003 to enable him to plead guilty to the offence, but he failed to appear.  A warrant was issued for his arrest and he was arrested on 29 August 2003.  He remained in custody between that date and the date upon which he was sentenced.

1. The appellant was born on 29 August 1982 and thus was 20 years of age at the time of the offence.

1. He has previous convictions and appearances in Courts.  He first appeared before the ACT Children’s Court in December 1998 when he was released without conviction on a good behaviour bond in relation to a charge of attempted theft.  In November 1999 when he was reprimanded in relation to an offence of minor theft.  In December 1999 he was convicted of unlawful possession and placed upon a good behaviour bond.  In July 2000 he was committed to an institution for six months with a recommendation that he be subject to immediate psychological and psychiatric examination.  He appealed and that sentence was set aside and he was released subject to a probation order.  On 23 April 2003, subsequent to this offence, but in relation to offences committed prior to this offence, he appeared in the ACT Magistrates Court and pleaded guilty to 10 counts of minor theft, one count of making a false statutory declaration and possessing a prohibited substance.  He was sentenced to three months’ imprisonment but the sentence was suspended on him entering into a bond to be of good behaviour, a condition of which was that he undertake any mental health assessment directed.  He has never served a sentence of imprisonment.

1. The appellant had no prior convictions for arson or other offences relating to damage to property.

1. The appellant was born in the ACT, the only child of parents who separated when he was young.  He resided with his mother until age 13.  He then lived with his father and then, intermittently, with his mother interspersed with periods of homelessness.

1. The appellant told ACT Corrective Services, who had the responsibility of writing a Pre-Sentence Report, that if he were released he could live with his mother again.  His mother later told the ACT Corrective Services that that would not be possible.  The Corrections Officer was told that she felt that he needed mental health treatment before she would be willing to support him again.

1. The appellant was educated to a Year 10 level but was expelled during Year 11.  He has not undertaken any study since that time.

1. He has been mainly unemployed and has been reliant on Centrelink for income since leaving school.  He has no assets or savings and he has debts of nearly $3,000.

1. The appellant has used cannabis since the age of 14, and he says that he has used that drug since the age of 18 for pain management.

1. He was diagnosed with Crohns disease when he was 10 years old and had an ileostomy at the age of 15.  His condition is chronic and of a degenerative nature.  His medical condition will require ongoing treatment.  The appellant requires regular medication.  He has been advised by his medical practitioner that he ought to consult a dietician.  He has ignored that advice.

1. Apart from suffering from that disease, his general practitioner advised that the appellant ‘may meet the diagnostic criteria for a Personality Disorder and Impulse Control Disorder’.

1. The appellant did not undertake any psychiatric assessment or put any psychiatric evidence before the sentencing judge.  The Pre-Sentence Report stated that he ‘could benefit from psychiatric assessment as indicated by his treating practitioner if he agreed to comply with any reporting conditions’.

1. The appellant advised the author of the Pre-Sentence Report that he started the fire because he was intoxicated by alcohol, and angry and confused because of the break-up of a five-month relationship with a girlfriend.  He said that he knew the fire would not cause any problems as he was in the Boy Scouts for two years and he was aware of how to light ‘safe’ fires.  He said that this was not a ‘serious offence’.

1. The Pre-Sentence Report states -

Mr Gray demonstrated little remorse or responsibility for the matter now before the Court, laughing during interviews and stating that it was not a serious matter.  His explanation for the offence changed on several occasions.

Mr Gray appears to have little insight into the serious nature of his offending and has indicated he has a fascination with fires.  It is a concern that Mr Gray believes he would not receive a custodial sentence in regard to any offending behaviour due to his chronic medical condition.

Mr Gray has been assessed at moderate to high risk of re-offending due to his minimisation of the effects and significance of his offending behaviours, and his admission of having a fascination with fire for at least the past ten years.  It is also a concern to this Officer that Mr Gray has not been willing to accept the need for psychiatric intervention.

1. The appellant wrote a letter to the sentencing judge on the morning of his sentence, in which he explained why he lit the fire.  That explanation was consistent with the explanation he gave to ACT Corrective Services.  He also expressed his remorse and contrition in relation to the commission of the offence.

1. In his sentencing remarks, the sentencing judge said that the offence was one of significant seriousness.  He said -

5.…  22 January 2003 was four days into the bushfire emergency.  In early January of this year a major fire started in the hills to the west of Canberra.  The precise cause of that fire is yet unknown with any certainty, and indeed Magistrate Doogan is currently commencing a Coronial Inquiry into the causes of that fire.  As I understand the situation, at least publicly, the most likely cause at the moment is seen to have been lightning strikes somewhere in those mountains, whether on the Australian Capital Territory side of the surveyors line that divides the Australian Capital Territory from New South Wales in that wilderness area, or on the New South Wales side of that line, will no doubt be determined in due course.

6.But nonetheless it is a matter of notoriety that that fire spread.  And on 18 January 203 it hit the western areas of the Australian Capital Territory with great savagery.  It was the largest natural disaster that this community has ever suffered.  Four of our fellow citizens lost their lives.  Some 500 houses were destroyed, businesses were destroyed, thousands of people lost their homes, taking into account that they were family homes.  Many people lost their businesses and their livelihoods.  Our community is still recovering.

7.In the pre-sentence report it is recorded that you stated to the Corrections Officer that you were unaware of the emergency conditions.  I will accept that you may not have known that there was a state of emergency declared, that is a legal concept, but I find it incredible that any person who was resident, or in the Australian Capital Territory, in that week beginning 18 January 2003 was unaware that we were in a state of extreme fire emergency.  The skies were black for over a week, the sound of helicopters was a constant refrain.  Everybody in this town knew that we were facing a fire emergency.

1. It was contended on this appeal that the sentencing judge placed undue weight on the surrounding circumstances to which we have referred.  It is said that his Honour went to considerable length to describe the circumstances that prevailed in the ACT at the time of the ACT bushfire crisis in January 2003.  It was contended that whilst the picture painted by his Honour was graphic and probably accurate, the appellant was not allowed an opportunity of putting evidence in respect of the findings made by his Honour.

1. In our opinion, there is nothing in that complaint.

1. The appellant was charged with intentionally causing a fire and being reckless about the spread of the fire to vegetation on property belonging to someone else.  It was important, for the purpose of understanding the appellant’s criminality, to put the offence in its context.  It would be one thing to attempt to light a bushfire on a cold, wet day in July and another thing to light a bushfire on a fiercely hot day in January whilst other bushfires are raging close by.  In our opinion, the sentencing judge was not only entitled to have regard to the surrounding circumstances in assessing the appellant’s criminality, he was obliged to have regard to those other matters.

1. The appellant submitted that the fire he lit posed no risk because it was lit in the city of Canberra and at night.

1. It was contended, however, that the sentencing judge did not have sufficient regard to the particular circumstances of this offence.  It was contended that the fire did not spread and was quickly extinguished by people passing by.  No accelerant was used.  The fire did not pose a risk of spreading beyond the construction site on which it was lit.  There was no evidence to suggest that wind or fuel conditions gave rise to such a risk.  There was no evidence that fire authorities were even aware of the existence of the fire.  Therefore, their resources were not diverted, nor their lives or health put at risk.  No damage was done, apart from the burning of an area of grass of eight metres by three metres.

1. All of those matters, of course, were relevant in having regard to the particular circumstances surrounding the offence.  There is no reason to think that the sentencing judge ignored those matters.  He referred to the agreed Statement of Facts.  He described how the fire was lit and the spread and containment of the fire.  By doing so, he necessarily had regard to the matters referred to in the previous paragraph.  He did say that during this period of time emergency workers were putting themselves in grave danger to restore emergency services, and if the security officers had not observed the appellant’s behaviour and the fire had not been put out, the fire could have spread to North Canberra ‘at a time when the fire and emergency protection available to Canberra was stretched almost to breaking point’.  In our opinion, the sentencing judge was there only pointing out the danger that the appellant created by committing this offence.  If those matters had not occurred, as the sentencing judge said, there was a risk that the fire could spread at a time when the emergency services in Canberra were stretched to breaking point.

1. Next, the appellant complains that insufficient weight was given to subjective considerations.  The appellant says that his criminal history only included relatively minor offences.  There was no suggestion that the sentencing judge proceeded otherwise.  In fact, the sentencing judge made no mention of the appellant’s previous convictions.  In those circumstances, it must be assumed that the sentencing judge had no regard to those previous offences and treated the appellant more favourably than he otherwise might.  He said he took into account the fact that the appellant had not previously been convicted of an offence of arson.

1. It was contended that the sentencing judge did not have regard to the appellant’s pre-existing Crohns disease.  We do not agree with that submission.  On two occasions the sentencing judge said, in arriving at his sentence, that he had taken into account the appellant’s health condition.

1. The appellant complains that the sentencing judge failed to have appropriate regard to the guilty plea and the expression of contrition and remorse.

1. The sentencing judge said in his remarks that he took into account the fact that the appellant had pleaded guilty to the offence, although the sentencing judge thought that he had done so in the face of an overwhelming Crown case.  The sentencing judge was right, in our opinion, to take into account the plea but he was also entitled to take into account the strength of the case against the appellant in determining whether the plea was any indication of contrition or remorse, or merely the inevitable consequence of the strength of the prosecution case.

1. In our opinion, the case against the appellant was overwhelming.  He was observed committing the offence and apprehended at the scene of the crime.  He made admissions to one of the security officers at the scene.  It is difficult to conceive of any defence which might have been raised by the appellant.

1. There was evidence in the Pre-Sentence Report that the appellant had demonstrated little remorse or responsibility for the matter.  As we have already indicated, it was observed that he laughed during interviews and said that it was not a serious matter.

1. The letter written to the sentencing judge, of course, did express contrition and remorse but the sentencing judge was entitled to treat that sceptically.  There was evidence before the sentencing judge inconsistent with those expressions contained in the letter.

1. Lastly, in relation to the subjective matters, it is claimed that the circumstances of the offending, together with the Pre-Sentence Report, indicate that the appellant may suffer from a psychiatric illness.  It was submitted that his Honour could have pursued this issue further.

1. In relation to the question of any mental illness, the sentencing judge said -

I take into account that there have been some suggestions for psychiatric assessment or treatment which you have not complied with in the past, but you indicated in your letter to me today that you would be prepared to take part in.  It seems to me that that is something that can occur following the passing of a sentence.

1. It was for the appellant to put before his Honour any matters relevant to his personal circumstances.  If the appellant wished to establish that he suffered from a psychiatric illness, which warranted a lower penalty, it was for the appellant to put that evidence before the sentencing judge.  There were suggestions that the appellant did suffer from a psychiatric illness.  His mother and his general practitioner told the Corrections Officer that they suspected the appellant suffered from some sort of mental illness.  However, the appellant was represented before the sentencing judge.  There was no suggestion that his counsel could not obtain proper instructions from the appellant or did not apply his mind to the question of the appellant’s mental condition.  Presumably, no evidence or submissions were put in relation to this matter for a reason.  Indeed, it was not suggested on this appeal that any such evidence still existed, only that his Honour should have pursued the question.  In our opinion, the sentencing judge did not have an obligation to pursue the question of mental illness.

1. If, in fact, he had established that he did suffer from a mental illness, then that might have meant, as the appellant contended, that less weight needed to be given to questions of deterrence.  However, the appellant did not attempt to establish that he suffered from a mental illness or impairment and, in those circumstances, the sentencing judge was entitled to proceed upon the basis which he did.

1. In our opinion, the sentencing judge did not err in regard to that issue.

1. Lastly, it was put that, if this Court is not satisfied that the sentencing judge erred in failing to have regard to a relevant matter, or had regard to an irrelevant matter, or misapplied principle, the sentence itself indicates error.  It was submitted that the sentence was manifestly excessive.

1. In our opinion, the sentence imposed was severe but we are not prepared to say that it was manifestly excessive.

1. This offence was committed in the circumstances described by the sentencing judge.  It was a senseless and stupid, but even more importantly, a highly dangerous offence.  It could have caused greater damage both to property and to persons in the ACT than in fact was suffered in January 2003.

1. The sentencing judge was entitled to view the offence as very serious. The offence called for punishment: s 341 Crimes Act 1900 (ACT). There was a need for personal deterrence: s 341(b). There was evidence before the sentencing judge that the appellant had been fascinated by fires for some years. There was a need for general deterrence. The wider community had to understand that the Courts would treat offences of this kind very seriously. Those who are likely to commit offences of this kind had to know that if they did so they would be likely to receive a lengthy term of imprisonment: s 341(b). There was a need to make it clear that the community, through the agency of the Court, viewed this behaviour as reprehensible: s 341(d).

1. Whilst the appellant is a young man and his personal circumstances indicate that he has had an unfortunate and, to an extent, dysfunctional life, this offence required the offender to immediately serve a term of imprisonment.  We may have set a term lower than the sentencing judge but it is not for an appeal court simply to substitute its opinion for that of the sentencing judge.  The sentence must be shown to be manifestly excessive in the sense understood in the authorities: Lowndes v R (1999) 195 CLR 655 at 671-672; Wong v The Queen (2001) 207 CLR 584 at 605 per Gaudron, Gummow and Hayne JJ.

1. In our opinion, none of the grounds made out in the notice of appeal, as expanded upon in the appellant’s written submissions and in oral argument, have been made out.

1. The appeal should be dismissed.

   I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours, Justice Gray and Justice Lander.

   Associate:

   Date:     23 June 2004

IN THE SUPREME COURT OF THE     )          No. ACTCA 33-2003
  )          No. SCC 29 of 2003
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DENNIS MICHAEL GRAY

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:   23 June 2004
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. For the reasons so ably expressed by Lander J, it is clear that no appealable error has been demonstrated and that the appeal must be dismissed.

1. Whilst the sentence of five years imprisonment may have been a severe one, the offence to which the appellant pleaded guilty involved not only lighting a grass fire on a building site in a Canberra suburb but being reckless as to the spread of that fire to surrounding vegetation.  When it had spread to cover an area of approximately 24 square metres he had simply walked away, leaving it to spread unchecked save by the chance intervention of others.  Furthermore, the offence was committed only four days after another bushfire that had swept through Canberra suburbs, killing four people and destroying hundreds of homes. 

1. It is true that the fire lit by the appellant had been quickly extinguished and that the evidence did not establish that it was likely to have developed into a similar conflagration.  However, it was extraordinarily irresponsible to act as he did when the danger of uncontained fires had just been so graphically demonstrated and, as the sentencing judge pointed out, when emergency services had already been stretched to breaking point.  The potential danger to other people and property was starkly obvious.  His Honour was plainly obliged to give considerable weight to the need to deter the appellant and others from such behaviour.  In the circumstances, I am unable to accept the appellant’s contention that the sentence was manifestly excessive.

   I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

   Associate:

   Date:         23 June 2004

Counsel for the Appellant:  Mr K Archer

Solicitor for the Appellant:  Legal Aid Office (ACT)

Counsel for the Respondent:  Mr R Refshauge SC

Solicitor for the Respondent:  Director of Public Prosecutions (ACT)

Date of hearing:  14 May 2004

Date of judgment:  23 June 2004