Director of Public Prosecutions v Hagan
[2024] ACTSC 257
•19 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hagan |
Citation: | [2024] ACTSC 257 |
Hearing Date: | 12 August 2024 |
Decision Date: | 19 August 2024 |
Before: | Christensen AJ |
Decision: | See [58] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – causing a bushfire – damaging property – lighting unauthorised fires – leaving a fire without extinguishing – fires lit in suburban area during bushfire season – assessment of offence of causing bushfire – potential and actual harm and risk to property, persons, and ecosystems – deterrence – substance use – promotion of rehabilitation – drug and alcohol treatment order imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 63, 80O, 80S, 80T, 80W, 80Y, 80ZE |
Cases Cited: | Stanger v The Queen [2021] VSCA 25 |
Parties: | Director of Public Prosecutions ( Crown) Matthew Scott Hagan ( Offender) |
Representation: | Counsel G Meikle ( Crown) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 91, 92 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Matthew Hagan is to be sentenced for a series of offences involving the lighting of fires in a suburban area in October 2023. Mr Hagan seeks, if the term of imprisonment imposed is such that he is eligible for a drug and alcohol treatment order (treatment order), that the Court make such an order: s 12A Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
2․The offences for which Mr Hagan is to be sentenced include indictable charges and related summary offences. The indictable charges are offences of causing a bushfire contrary to s 405(1) of the Criminal Code 2002 (ACT) (Criminal Code) and an offence of damaging property contrary to s 403(1) of the Criminal Code. The related charges involve four offences of lighting unauthorised fire contrary to s 125(1)(a) of the Emergencies Act 2004 (ACT) and six offences of leaving a fire without extinguishing contrary to s 126(1) of the same Act.
The offending
3․On 25 October 2023 between 3:45am and 5am, Mr Hagan engaged in conduct involving seven fires across four streets in Isabella Plains and Richardson. Mr Hagan was in the company of another male at the time of the offending. This male has since passed away in unrelated circumstances.
4․Each of the distinct fires and the offences arising from them will be considered in turn.
Fire oneLight unauthorised fire – CAN 2023/10534
Leaving fire without extinguishing – CAN 2023/10538
5․At about 3:53am, Mr Hagan and the other male walked down Muir Close in Isabella Plains. Mr Hagan was holding a plastic water gun which he aimed at a patch of grass on the side of the road and used to propel liquid for a period of about 10 seconds. He then lit a fire on the patch of ground and walked away. The fire remained alight for 45 seconds before extinguishing on its own.
Fire twoLeaving fire without extinguishing – CAN 2023/10539
6․At about 4:15am a fire was observed by a community member “coming out of a storm drain” and which appeared to be “creeping up the grass a bit towards somebody’s back fence”. The community member also saw near to this area two males, with later investigations determining this to be Mr Hagan and the other male.
7․The fire service was called and arrived at 4:29am. The fire was approximately 1 metre by 1 metre in size and was observed to be a “small fire at the base of a tree, in an open drain, grassed area, beside the road”. The fire was extinguished by a fire officer.
Fire three Light unauthorised fire – CAN 2023/10535
Leaving fire without extinguishing – CAN 2023/10540
8․The next fire was identified from around 4:30am with a call to emergency services. The facts provide that a couch that was “completely involved in fire” was located at a residence on Bucknell Circuit. It is not clear where at the premises the couch was located, but it appears from the facts that it was outside of the house.
9․The flames from the fire were some four metres high. Residents had tried to extinguish the fire with a garden hose, but were unsuccessful. A fire officer extinguished this fire at 4:41am. This fire officer deemed the fire suspicious as it was “fully involved on arrival which may have indicated accelerant being used or the nature of the material within the couch being high [sic] flammable once ignited”.
Fire four Light unauthorised fire – CAN 2023/10536
Leaving fire without extinguishing – CAN 2023/10541
10․At around the time of the call for fire three, emergency services were also called to attend at an address at 25 Moonbi Crescent in response to fire four. This fire was detected by a community member who was woken when a fire was lit outside of her house. She called Triple Zero. After extinguishing fire three, the fire officer attended in relation to this call, arriving at fire four at 4:44am.
11․A small smouldering fire was observed in the front garden and was extinguished by fire officers.
12․At around this time, Mr Hagan, rang the doorbell of another house in Moonbi Crescent. Mr Hagan was standing outside the door, and he asked to come into the house. The female occupant told him she would call the police and he replied that he did not care if she did. He then apologised for waking her and walked away.
Fire five Causing a bushfire – Count 1 (SCCAN 2024/67)
13․At about 4:48am, another fire officer was dispatched to a fire reported to be proximate to 13 Moonbi Crescent. The fire was on a nature embankment at the edge of Isabella Plains. The embankment had light tree cover, and the ground was a mixture of grass and leaf/bark mulch.
14․Fire five was approximately 20 metres by 20 to 30 metres in size and was described as “spreading quickly”. It was extinguished by two fire officers.
Fire six Property damage – Count 2 (CAN 2023/10544)
Leaving fire without extinguishing – CAN 2023/10542
15․The resident of 17 Moonbi Crescent observed the emergency services responding at about 4:30am. The resident had been woken by a shuffling noise outside of his house.
16․At about 5:14am, after departing fire five, one of the fire officers noticed an item “heavily involved” in flame at 17 Moonbi Crescent. Fire officers attended at the house and used their hoses to extinguish a fire next to the garage. The fire was set on a wooden TV unit which was burned and damaged.
Fire seven Light unauthorised fire – CAN 2023/10537
Leaving fire without extinguishing it – CAN 2023/10543
17․A community member observed the final fire being lit as he went to work at around 5am. He saw a man, later identified as Mr Hagan, lighting a fire on the corner of Parrabell Place and Groveland Crescent. Emergency services were contacted.
18․This fire was otherwise observed by another fire officer who was leaving fire five. The officer noticed a small smouldering fire and extinguished it using a high pressure hose reel. The fire was located in a garden bed next to the road and footpath and was approximately 1 metre by 1 metre in size.
Arrest
19․At about 5:33am, a police officer observed a person later identified as Mr Hagan, on the greenbelt running alongside a street near to where the fires were lit. When approached, the officer noticed that Mr Hagan smelled of accelerant or petrol. There appeared to be burn marks on the cuffs of his jumper. A jet lighter was found under branches in a fallen tree near to where he was located.
20․The officer asked Mr Hagan why he smelled of petrol and he responded that he had been working on a motorbike.
Nature and circumstances of the offending
21․In assessing the objective seriousness, and in the absence of ACT authorities that have considered s 405 of the Criminal Code, I was assisted by counsel on behalf of the offender with interstate authorities that have considered similar offences: Stanger v The Queen [2021] VSCA 25 and R v Mills [2005] NSWCCA 175. The prosecution assisted with reference to the factors that inform the objective seriousness of the offence of arson: R v Wrigley [2015] ACTSC 114.
22․I find that the factors relevant to informing the objective seriousness of the offence of cause bushfire include:
(a)the mechanism used to cause the fire, and the extent of planning involved;
(b)the extent of damage and harm caused to persons, property, and ecosystems;
(c)the location of the fire, including the proximity to residential properties;
(d)the extent of resources involved to respond to the fire;
(e)the likelihood of detection of the fire, having regard to location and time of day;
(f)the weather and fuel hazard conditions; and
(g)whether the fire was caused during a declared bushfire danger period.
23․Further, in considering the objective seriousness of the offence, the potential harm is relevant. The seriousness of the offence is informed not only by the actual harm caused, but the potential harm to persons, property, and ecosystems. The moral culpability of the offender is informed by the extent to which the offender appreciates those risks.
24․Fire one was itself a serious example of the offending, with the use of an accelerant deployed very deliberately, and leaving the fire after having used an accelerant. Fortunately, the fire extinguished on its own, but it is not clear that Mr Hagan was aware of that.
25․Fire two was extinguished by fire officers. It appears that it was a fire in an open drain, but the spread of it to a grassed area demonstrates the high risk from Mr Hagan leaving the fire without extinguishing it. The inherent risks involved in the offending are also demonstrated by the outcome of fire three, with it fortunate fire officers were able to rapidly attend and extinguish the fire that appears to have been lit in a location proximate to a residence with occupants likely inside. Similarly, fire four was lit, and left without being extinguished, in an area proximate to a house with at least one occupant.
26․Fire five, being the most serious of the fires lit, warrants particular consideration. It is not established that an accelerant was used, but the capability for a fire to ignite in the conditions, even without an accelerant, must have been well understood by Mr Hagan by this time. The size of this fire was significant considering there was a rapid response by fire officers. The weather and fuel hazard conditions were such that there was harm caused rapidly to the nature embankment. The potential harm to a greater area of the ecosystem, and to the neighbouring homes and community members was high.
27․Fire six then involves again a concerning risk given the nature of the location where the property damage was done, and the mechanism of damage, being fire. The item itself does not appear to be of particularly high value, but it was likely still distressing for the owner to have lost use of the furniture in such circumstances. It would have been of inconvenience to arrange disposal of the damaged property.
28․Fire seven involves similar concerning risks given its proximity to a residence. The size of this fire, by the time it was extinguished, was not insignificant.
29․At the time of all of the fires, the minimum temperature for the day was 10.6 degrees, with a maximum of 20.1 degrees. It was submitted on behalf of Mr Hagan that the location of the fires, being the Tuggeranong Valley, was such that the Court would be satisfied that lower temperatures were involved. I am not satisfied I can draw this conclusion given the Bureau of Meteorology evidence that was relied upon, but I do accept that the weather conditions, in the early hours of the morning, were not necessarily conducive to an extreme fire risk. It was though the bushfire season, albeit at the beginning of the season.
30․There is no explanation given by Mr Hagan for this offending behaviour, beyond substance abuse as outlined below (see at [36]). The behaviour was, at a minimum, deliberately reckless and nuisance conduct with the potential for gravely serious consequences. On any explanation for it, Mr Hagan has a high degree of moral culpability in acting in such a manner that exposed community members, and their property, to such risk. The fire officers were also put at risk in responding to the offending behaviour.
31․The potential for harm from the offending is such that the principle of general deterrence is of particular importance. Specific deterrence is also of importance, with a level of planning involved in terms of having possession of an accelerant and an ignition mechanism, as well as there being a persistence in the conduct. Further, denunciation of the conduct is important given the high level of danger, and devastation, associated with fires in residential areas and bushfires.
32․While it seems a relatively small number of officers attended to respond to the fires, emergency services were receiving multiple reports in this period of time, and there was no doubt a high level of alarm being experienced by first responder services as a result of the offending. There were limited periods of time available to fire services to extinguish the various fires, and ensure that there was not a more serious outcome. That there was not such an outcome is entirely to the credit of the fire officers and not as a result of anything done by Mr Hagan to rectify his offending behaviour nor mitigate the risks arising from it. From the outset of the offending, with fire one, Mr Hagan demonstrated a complete disregard for the actual and potential consequences of his actions.
Subjective circumstances
33․Mr Hagan is now aged 35 years and was aged 34 years at the time of the offending. He was born and raised in Canberra, and describes a mostly positive childhood and largely positive relationships with his parents and siblings.
34․He completed schooling that led to a culinary apprenticeship and progress in employment to a position of Head Chef. He has otherwise engaged in various forms of employment including with automative painting, house rendering, and furniture removal.
35․Mr Hagan has experienced challenges with the deaths of multiple people that had played a meaningful role in his life. He has experienced mental health challenges, particularly since he was involved in a motor vehicle accident in 2014 that also caused physical health issues.
36․He began the use of illicit substances initially recreationally, and then progressed to regular use of methamphetamine, as well as other substances, from the age of approximately 25 years. He has a son that he does not have a relationship with, with the circumstances of the relationship breakdown with his son’s mother, and the distance from his son, being contributing factors to his increased substance abuse. He first used heroin from this time, as it “numbed the pain”. He now utilises opioid maintenance therapy.
37․Mr Hagan is in a long-term relationship, and he resides with his fiancé and her three children. In a letter to the court, Mr Hagan’s fiancé speaks of her support for him. She describes Mr Hagan as having regret for his offending, regret for the impact of it on the community, and on his family, and his desire to be a better role model for his stepchildren. She says that she will support Mr Hagan with his rehabilitation, and that his return to their home will enable her to have the support that she needs. Mr Hagan’s fiancé confirms that there is employment available for him as a removalist through a family member’s company.
Criminal history
38․Mr Hagan does not have previous convictions of this type of offending. He does though have previous convictions, including for drugs, violence, weapons, driving, burglary, and damaging property offending. This limits the leniency that can be afforded to Mr Hagan. It also emphasises the role of community protection in the sentencing decision, although Mr Hagan has not previously been convicted of fire related offences.
39․In considering the need for community protection, it is relevant that, somewhat unusually, in circumstances of offending that arises from a long-standing substance abuse problem, the first occasion on which Mr Hagan appeared before a court was in November 2016, when aged 27 years. Thereafter, there are periods during which Mr Hagan was in the community without offending.
Pleas of guilty
40․Mr Hagan pleaded guilty after the matters were committed for trial and prior to the criminal case conference. While not the earliest opportunity to have done so, it remains that there is utilitarian value to the plea of guilty. A reduction in the range of 20 per cent is appropriate.
Maximum penalty
41․The most serious of the indictable charges, causing a bushfire, carries a maximum penalty of 15 years imprisonment and/or 1500 penalty units. The other indictable charge, of damaging property, carries a maximum penalty of 10 years imprisonment and/or 1000 penalty units.
42․The summary charges of lighting unauthorised fires carry a maximum penalty of 1 year imprisonment and/or 100 penalty units. The charges of leaving fires without extinguishing them carry maximum penalties of 100 penalty units. These charges have increased penalties due to the offending having occurred during the bushfire
season: s 119(1) Emergencies Act 2004 (ACT).
Presentence custody
43․Mr Hagan has been remanded in custody since 25 October 2023, and it was agreed that this period is appropriately taken into account for any backdating of the sentence pursuant to s 63 of the Sentencing Act.
Consideration
44․In relation to the offences where the maximum penalty includes imprisonment, I am satisfied, having considered possible alternatives, that no penalty other than imprisonment is appropriate.
45․It was submitted on behalf of Mr Hagan that the Court may conclude that the aggregate term of imprisonment to be imposed is below the range enlivening eligibility for a treatment order: s 12A(1)(b) Sentencing Act. I do not accept this submission. The serious aspects of the offending, and the need to reflect deterrence and denunciation in the sentence, are such that eligibility, at least in terms of the period to be imposed, is met.
46․The need for a deterrent sentence is, in addition to the matters outlined above (at [31]), warranted given the extent of remorse and insight is, as the prosecution submitted, limited. Mr Hagan’s immediate response to the police does not evidence any immediate remorse, and his subsequent equivocal explanations for the offending do not evidence significance gains being made in this regard. As the prosecution further submitted, the circumstances of the offender are such that promotion of his rehabilitation is a highly relevant sentencing purpose.
47․As to the fine-only offences Mr Hagan has a capability to meet financial penalties, given adequate time to pay, and this form of penalty provides some recompense to the community for the resources expended as a result of the offending behaviour. The fines to be imposed for each offence will, while ensuring that double punishment is avoided, reflect the increasing seriousness in consecutively leaving each fire, placing more onerous demands on emergency services and aggravating the risks involved. The totality principle informs the appropriate financial penalty, as it does the entire sentencing exercise.
Drug and alcohol treatment order
48․Mr Hagan attributes the use of methamphetamine as a contributing factor to his offending behaviour. While he had sustained a period of approximately 12 months abstinence prior to the day of the offending, at that time, he shared a methamphetamine pipe with a friend who was experiencing difficulties and using substances. They then engaged in the offending behaviour, “lighting fires…being an idiot”.
49․Mr Hagan has not previously engaged in any alcohol or drug treatment, and plainly has an ongoing issue with substance use given urinalysis testing while in custody on 29 November 2023 returned a positive result for amphetamine. He has goals to be drug free, and to be “a respected person in society”, to be working and to have things to look forward to with a young family.
50․I am satisfied that Mr Hagan is dependent on a controlled drug and his dependency substantially contributed to the commission of the offences: s 12A(2)(a)(i), (ii) Sentencing Act. I am also satisfied that Mr Hagan will live in the ACT for the term of the sentence except as directed by the Court: s 12A(2)(a) Sentencing Act.
51․The Canberra Health Services suitability assessment report dated 6 August 2024 finds Mr Hagan to be suitable for a treatment order. He is described as displaying insight into the contributing factors for his substance use and as being motivated to address these underlying issues and his substance abuse. Mr Hagan’s interest in a day program for rehabilitation is supported by Canberra Health Services, with the Karralika Matrix program considered suitable.
52․Similarly, the ACT Corrective Services suitability assessment report dated 8 August 2024 assesses Mr Hagan as suitable for a treatment order. This report does observe that Mr Hagan’s previous compliance with community based orders has been mixed, but concludes that Mr Hagan expresses accountability for his offending behaviour and that he has demonstrated a shift in behaviour while in custody.
53․Mr Hagan has given informed consent to such an order as required by s 12A(2)(c) of the Sentencing Act.
54․I consider, having taken into account the relevant sentencing considerations that apply to Mr Hagan, that there is no information as to concerns of a victim about their safety or welfare, and taking into account the objects of a treatment order, that the order is appropriate: s 12A(2)(b) Sentencing Act.
55․I am satisfied that Mr Hagan is both eligible and suitable for a treatment order: ss 80S, 80T Sentencing Act. Such an order reflects both the purposes of sentencing, and the objects of such an order, including promotion of community safety: s 80O Sentencing Act.
56․In determining the suitability of such an order, I have had regard to the prosecution submission that it is unlikely that Mr Hagan would, if an escalation of treatment options became necessary, be eligible for a residential rehabilitation program given the nature of his offending. I am satisfied that appropriate arrangements for the administration of a treatment order remain practicable in the circumstances: s 80S(c) Sentencing Act. The current recommendations are such that residential rehabilitation is not envisaged as necessary. In the event it was to become so, cancellation of the order may be considered: 80ZE Sentencing Act.
57․The remaining term of imprisonment to be served will be suspended for the purposes of a treatment order.
Orders
58․For those reasons the following orders are made:
(1)Matthew Scott Hagan be convicted of light unauthorised fire (CAN 10534/2023) and he be sentenced to 1 month and 18 days imprisonment, reduced from 2 months imprisonment on account of his plea of guilty, to commence from 25 October 2023 and end on 12 December 2023.
(2)Matthew Scott Hagan be convicted of light unauthorised fire (CAN 10535/2023) and he be sentenced to 2 months and 12 days imprisonment, reduced from 3 months imprisonment on account of his plea of guilty, to commence from 12 November 2023 and end on 23 January 2024.
(3)Matthew Scott Hagan be convicted of light unauthorised fire (CAN 10536/2023) and he be sentenced to 3 months and 6 days imprisonment, reduced from 4 months imprisonment on account of his plea of guilty, to commence from 23 December 2023 and end on 28 March 2024.
(4)Matthew Scott Hagan be convicted of light unauthorised fire (CAN 10537/2023) and he be sentenced to 4 months imprisonment, reduced from 5 months imprisonment on account of his plea of guilty, to commence from 2 February 2024 and end on 1 June 2024.
(5)Matthew Scott Hagan be convicted of leaving fire without extinguishing it (CAN 10538/2023) and a fine of $500.00 be imposed to be paid within 12 months from today, 19 August 2024.
(6)Matthew Scott Hagan be convicted of leaving fire without extinguishing it (CAN 10539/2023) and a fine of $600.00 be imposed to be paid within 12 months from today, 19 August 2024.
(7)Matthew Scott Hagan be convicted of leaving fire without extinguishing it (CAN 10540/2023) and a fine of $700.00 be imposed to be paid within 12 months from today, 19 August 2024.
(8)Matthew Scott Hagan be convicted of leaving fire without extinguishing it (CAN 10541/2023) and a fine of $800.00 be imposed to be paid within 12 months from today, 19 August 2024.
(9)Matthew Scott Hagan be convicted of leaving fire without extinguishing it (CAN 10542/2023) and a fine of $900.00 be imposed to be paid within 12 months from today, 19 August 2024.
(10)Matthew Scott Hagan be convicted of leaving fire without extinguishing it (CAN 10543/2023) and a fine of $1,000.00 be imposed to be paid within 12 months from today, 19 August 2024.
(11)Matthew Scott Hagan be convicted of damage property (CAN 10544/2023) and he be sentenced to 4 months and 25 days imprisonment, reduced from 6 months imprisonment on account of his plea of guilty, to commence from 25 March 2024 and end on 18 August 2024.
(12)Matthew Scott Hagan be convicted of cause a bush fire (SC CAN 67/2024) and he be sentenced to 14 months and 6 days imprisonment, reduced from 18 months imprisonment on account of his plea of guilty, to commence from 19 August 2024 and end on 24 October 2025.
(13)The total term of imprisonment is 2 years, commencing from 25 October 2023 and ending on 24 October 2025.
Drug and Alcohol Treatment Order
(14)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Matthew Scott Hagan in respect of the eligible offence of cause a bush fire (SC CAN 67/2024), of which Matthew Scott Hagan has been convicted and for which he has been sentenced to a total term of 14 months and 6 days imprisonment.
(15)It be noted that conviction and sentence imposed for the eligible offence have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(16)The Drug and Alcohol Treatment Order be for 14 months and 6 days from today, 19 August 2024, to 24 October 2025.
(17)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 14 months 6 days from today, 19 August 2024, until 24 October 2025.
(18)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offence be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 19 August 2024, until 24 October 2025.
(19)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
(b)Matthew Scott Hagan undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;
(c)Matthew Scott Hagan not return a positive test sample under alcohol and drug testing;
(d)Matthew Scott Hagan not consume illicit drug, cannabis and prescription drugs not prescribed to him;
(e)Matthew Scott Hagan not carry fire lighting equipment or accelerants in a public place;
(f)Matthew Scott Hagan reside at 2 Hawkins Close, Kambah ACT 2902 and he not leave his place of residence between 9:00pm each day and 7:00am next day other than for a medical emergency, and he present to the front door of his residence if required by an officer of ACT Policing;
(g)Matthew Scott Hagan comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(20)Matthew Scott Hagan be directed to sign a sealed copy of this Order before he leaves the Court precincts.
(21)Matthew Scott Hagan be directed to appear in Court in person on Tuesday 27 August 2024 at 11:30am.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: |
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