Director of Public Prosecutions v Jesse Draper (a
[2023] ACTSC 109
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Director of Public Prosecutions v Jesse Draper (a pseudonym) |
| Citation: | [2023] ACTSC 109 |
| Hearing Date: | 28 April 2023 |
| Decision Date: | 15 May 2023 |
| Before: | Baker J |
Decision: | 1. | For the offence of arson, the offender is sentenced to a term of imprisonment of 15 months, reduced by two |
| months for the offender’s plea of guilty, to a term of | ||
| imprisonment of 13 months, backdated to 4 December 2022. | ||
| 2. | This sentence will be suspended after nine months on the condition that the offender enter into a Good Behaviour Order for a period of six months thereafter, during which time he is to accept the core conditions of such an order as well as the supervision of the Director- General and to obey all such directions as are imposed upon him in respect of mental health treatment and the treatment of his drug and alcohol problems. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Arson – arson while in custody – where there was risk to a cell mate – |
| mental health of offender – where the offender diagnosed with paranoid schizophrenia – application of Verdins principles | |
| Legislation Cited: | Criminal Code 2002 (ACT) s 404(1) Crimes (Sentencing) Act 2005 (ACT) ss 35, 64(2)(e), 72 |
| Cases Cited: | Biddle v Gatherer [2021] ACTSC 236 |
| De La Rosa v R [2010] NSWCCA 194; 79 NSWLR 1 Porter v R [2008] NSWCCA 145 | |
| R v Booth [2004] ACTCA 21 | |
| R v Newby [2022] ACTCA 20 R v Rappel [2019] ACTCA 11 | |
| R v Relph [2002] ACTCA 6 | |
| R v Snowden [2022] ACTSC 186 | |
| R v Verdins [2007] VSCA 102; 16 VR 240 R v Wrigley [2015] ACTSC 114 | |
| Parties: | ACT Director of Public Prosecutions (ACT DPP) |
| Jesse Draper (a pseudonym) (Offender) | |
| Representation: | Counsel |
| L Crocker (DPP) | |
| S McLaughlin (Offender) | |
| Solicitors | |
| ACT DPP | |
| ACT Legal Aid (Offender) | |
| File Number: | SCC 299 of 2022 |
| BAKER J: | |
| Introduction |
1․ The offender, who is to be referred to by the pseudonym Jesse Draper, is to be
sentenced for a single count of committing arson to a building, contrary to s 404(1) of
the Criminal Code 2002 (ACT).
| 2․ | This offence carries a maximum penalty of 15 years’ imprisonment and/or a fine of |
| $240,000. |
3․ The offender entered a plea of guilty to this offence in the Magistrates Court on
7 November 2022.
Background
The Offending
4․ The entirety of the offending is captured on CCTV footage. Some aspects of the
offending which are not clear in the CCTV footage are set out in an Agreed Statement
of Facts.
| 5․ | At the time of the offending, the offender was a detainee at the Alexander Maconochie |
| Centre (“AMC”). He was housed in the Remand Unit with one cell mate. | |
| 6․ | At around 5:18am on 15 April 2022, the offender began to pace around the cell. His |
| cell mate was asleep at the time on the lower bunk-bed. The offender walked towards | |
| the cupboards and set some paper on fire with a flint from a lighter. The offender added | |
| paper towel, a blanket and a pillow to the fire. Once the fire was lit, the offender stood | |
| back and observed the fire, standing with his arms flung outwards. The offender then | |
| positioned a chair in front of the fire and sat down, watching the fire. | |
| 7․ | At about 5:22am, the offender’s cell mate woke up to the fire and smoke. The offender |
| and his cell mate then threw blankets on the fire to smother it. The offender and his cell | |
| mate successfully extinguished the fire. | |
| 8․ | Corrections officers later attended the cell and extinguished the remnants of the fire. |
| The officers also provided the offender and his cell mate with smoke hoods and | |
| escorted the offender and his cell mate from the cell. | |
| 9․ | Police inspected the cell later that same day. The cell was significantly damaged. The |
| room was coated in fire extinguisher powder, the cupboard and wall to the right-hand | |
| side of the cell where the fire was lit was damaged, and there was substantial | |
| discolouration to the ceiling. The estimated cost of repairing the damage caused by the | |
| fire is $20,000. |
10․ The offender took part in a record of interview with police on the same date as the
offending. He explained that he lit the fire “in an attempt to gas himself”. However, as
outlined further below, when the offender was interviewed by a psychologist in March
2023, he reported that he lit the fire to “rebel against corrections”. He said that he was
“trying to make a statement… it’s a circus in here”.
11․ The offender was subject to a suspended sentence order at the time that the present
offence was committed. On 27 February 2023, Magistrate Campbell cancelled the
suspended sentence and resentenced the offender to a term of imprisonment for seven
months, to be suspended after five months. The offender has been in custody solely in
relation to the present offence since 4 December 2022.
Subjective circumstances
Introduction
12․ The offender was 35 years of age at the time of the offending. He is now 36 years old.
His subjective circumstances are summarised in a Pre-Sentence Report dated
23 January 2023 and a report of Dr Jenna Bollinger, psychologist, dated 14 March
2023.
13․ As discussed further below, the offender has been diagnosed with a number of mental
illnesses, including paranoid schizophrenia. When interviewed by Dr Bollinger, the
offender demonstrated signs of paranoia.
14․ Dr Bollinger noted that there were inconsistencies in the offender’s report of his drug
use and his developmental history. She said that the offender’s narrative memory is
“limited and the information he provides is fractured, at best”. Dr Bollinger was of the
view that these inconsistencies “may reflect different states of [the offender’s] mental
health and what he is prepared to discuss”.
15․ Despite these inconsistencies, it is apparent that the offender had a difficult childhood.
He told both Dr Bollinger and the author of the Pre-Sentence Report that his parents
separated when he was young and he had little contact with his father following the
separation. He was subjected to physical and verbal abuse from his mother and
stepfather from a young age. The offender’s mother died in June 2021, and he has had
little contact with the remainder of his family since that time.
16․ Apart from the abuse that he suffered as a child, the offender has also suffered a
number of traumatic events. He reported that his house burnt down in a bushfire when
he was in high school. In 2012, he was the victim of violent and prolonged physical and
sexual assaults at the hands of an offender (“C”) to whom he owed a drug debt. This
traumatic event has been independently verified. C ultimately pleaded guilty to charges
of forcible confinement, assault occasioning actual bodily harm, indecent assault and
sexual assault without consent. That offending was the subject of a Supreme Court
decision, which describes a course of offending against the offender that is striking in
its cruelty. There can be little doubt that this experience has had life long consequences
for the offender.
Alcohol and drug use
17․ The offender started drinking alcohol and smoking cannabis when he was 16 years old.
He started using heroin from when he was 30 years old. He has also used other illicit
substances, such as methamphetamines and dexamphetamines. The offender told the
author of the Pre Sentence Report that he is no longer dependent on alcohol or heroin,
and it is somewhat unclear whether the offender remains addicted to any illicit
substances at present.
18․ The offender has expressed an interest in re-engaging with drug and alcohol
rehabilitation and/or counselling, however he said that he was not interested in any
residential rehabilitation program upon his release from custody.
Homelessness
19․ The offender has experienced frequent periods of homelessness. The offender was in
receipt of Jobseeker payments prior to entering custody. He has financial difficulties,
and owes debts to two emergency accommodation services in the ACT.
20․ Prior to being remanded in custody, the offender was living in a property managed by
the Justice Housing Program. The author of the Pre-Sentence Report noted that the
offender was unlikely to be found suitable to return to this program and that the offender
was unable to nominate alternative accommodation options. The author noted that
while the offender may be eligible for the Everyman Australian’s Men’s Accommodation
and Support Service program, it is likely he will be reliant on emergency
accommodation upon his release from custody.
Mental health
21․ The offender has significant mental health issues. Dr Bollinger reported that the
offender suffers from depression, anxiety, Post-Traumatic Stress Disorder (“PTSD”)
and paranoid schizophrenia. Canberra Health Services records also indicated that the
offender has been diagnosed with depression, cluster B personality traits,
polysubstance abuse and has experienced incidents of drug-induced psychosis.
22․ The offender has previously experienced self-harm and suicidal thoughts. He has
demonstrated “erratic behaviour” in custody, including “paranoia, delusional thoughts,
strange verbalisations, self-harm and suicidal ideation”. The author of the Pre-
Sentence Report noted that service records detail that the offender was experiencing
poor mental health in the period prior to and following the offence.
23․ Dr Bollinger reported that:
[The offender] struggled to articulate his experiences in a coherent way. Having read previous reports, it appears that [The offender] may have been experiencing a period of increased paranoia or psychosis at the time of the assessment. The narratives that [The offender] was providing were incoherent and difficult to follow. Therefore, it is extremely difficult to determine what his thought process was at the time. His account was that he wanted to make a statement about the treatment he was receiving in custody, which would indicate he had the ability to exercise appropriate judgement and made a decision to light his cell on fire. Given his paranoia, however, it may be the case that he was operating from a place of extremely unstable mental health and was entirely unable to exercise appropriate judgement.
24․ She also reported that whilst the offender’s account to her suggested that the offender
“had made a decision to make a political statement”:
… the state of his mental health at the time of the assessment, may indicate that he was
unable to make calm and rational choices or to think clearly. He reported experiencing voices that he hears outside of his head and that they can give commands to him. He may have been acting on the basis of hallucinations.
25․ Dr Bollinger considered that it was “likely” that the offender’s mental health had a
disinhibiting effect on his behaviour.
26․ Dr Bollinger was of the view that the offender’s mental health was “clearly
deteriorating”, based on his presentation on her assessments. She expressed the view
that this deterioration “may be contributed to by his ongoing imprisonment and his
refusal to regularly take his medication”. On this basis, she concluded that custodial
imprisonment “may have a particularly negative effect on his mental health”.
27․ Dr Bollinger also considered that being held in custody would be “likely” to have a
greater effect on the offender in comparison with a person without such an impairment.
In particular, Dr Bollinger stated that the offender is:
… susceptible to increased paranoid thinking and feelings of persecution which are likely to
be activated in a prison setting, wherein assaults and other such problematic behaviours can
be rife.
28․ Dr Bollinger also described the offender’s vulnerability within the prison population. She
explained that if the offender was compliant with his medication, he may find it difficult
to think clearly and to make competent decisions (due to the side effects of the
medication). On the other hand, if he were non-compliant with medication, he will likely
experience paranoia, hallucinations and delusions which will “at best, make his living
situation challenging internally, [and] at worst it may make him a target within the
population”.
The offender’s criminal history
26․ The offender has a criminal history which dates back to 2005. However, the majority of
his offending has occurred since 2020.
27․ The offender has two previous convictions for damaging property, with one of those
offences involving him setting fire to public rubbish bins and electric scooters. The other
offence involved him damaging government property.
28․ The offender’s behaviour since being in custody has been poor. He has been subject
to multiple disciplinary incidents.
Sentencing Considerations
Objective seriousness of the offence
29․ It is well-established that arson is a serious offence, and that the need for deterrence
must generally be given substantial weight: R v Booth [2004] ACTCA 21.
30․ An assessment of the seriousness of the particular arson requires consideration of the
following matters:
(i) How the fire was lit (for example, whether an accelerant was used);
(ii) Whether the offending was intentional and the degree of premeditation or
planning;
(iii) The reason why the arson was committed;
(iv) The degree of potential injury to life or harm to others; and
(v) The extent of the damage caused by the fire.
See R v Wrigley [2015] ACTSC 114 at [34].
31․ In the present case, the offender intentionally lit the fire using a flint and paper. No
accelerant was used. There is no evidence of any planning or premeditation and I note
that the offender was involved in extinguishing the fire. The cost of repairing the property damaged by the fire is estimated to be $20,000. The community will bear the
cost of that repair.
32․ The most important aspect of the objective circumstances of the offending was the risk
of harm to others. The lighting of the fire in the cell caused a significant danger to the
offender’s vulnerable cellmate, who was asleep and locked in the cell, and was unable
to remove himself from the fire. More generally, the fire risked the security and safety
of others at the AMC, including the correctional officers who extinguished the fire.
Guilty Plea
33․ The offender entered a plea of guilty early, before a brief of evidence was prepared.
34․ Section 35 of the Crimes (Sentencing) Act 2005 (ACT) (“the Sentencing Act”) provides
for the reduction of sentence for a guilty plea when there is a real likelihood that the
court will sentence the offender to imprisonment. The timing of the plea is of importance
in determining the extent of the reduction: s 35(5) of the Sentencing Act. However,
s 35(4) provides that:
… in deciding any lesser penalty, the court must not make any significant reduction for the
fact that the offender pleaded guilty if, based on established facts, the court considers that
the prosecution’s case for the offence was overwhelmingly strong.
35․ As Mossop J held in R v Snowden [2022] ACTSC 186 at [47], what is a “significant
reduction” will vary from case to case. In some cases, it will be relevant to consider the
percentage by which the sentence is to be reduced. In other cases, particularly where
the head sentence is long, the actual term reduced will be of more importance.
36․ In the present proceedings, there is no dispute that the case against the offender was
“overwhelming”. The whole of the offending was captured on CCTV, which clearly
depicts the offender intentionally lighting the fire.
37․ It follows that there must not be a “significant reduction” of the sentence by reason of
the guilty plea. Of course, this does not preclude the giving of a limited discount for the
guilty plea: R v Newby [2022] ACTCA 20 at [49]. In the present case, the guilty plea
was entered before a brief of evidence was prepared. I will afford a discount, albeit not
a “significant reduction”, in view of the plea.
Moral Culpability
Relevant principles
38․ As outlined above, Dr Bollinger has diagnosed the offender as suffering from paranoid
schizophrenia, cannabis use disorder and stimulant use disorder. Dr Bollinger is also
of the opinion that the offender may suffer from major depressive disorder and PTSD.
The existence of these conditions is not disputed by the prosecutor.
39․ In Verdins v R [2007] VSCA 102; 16 VR 269 at [32], the Victorian Court of Appeal held
that a mental illness may be relevant to sentencing an offender in at least the following
six ways:
(i) The offender’s mental condition may reduce the offender’s moral culpability.
Where such a finding is made, the need for punishment and deterrence may be
reduced;
(ii) The condition may have a bearing on the kind of sentence imposed and the
conditions in which it should be served;
(iii) The need for general deterrence may be moderated or eliminated, depending
on the nature and severity of the offender’s symptoms, and the effect of the
condition on the offender’s mental capacity (whether at the time of the offending,
or at the date of sentence, or both);
(iv) Similarly, the need for specific deterrence may also be moderated or eliminated,
depending on the nature and severity of the offender’s symptoms, and the effect
of the condition on the offender’s mental capacity (whether at the time of the
offending, or at the date of sentence, or both);
(v) The existence of the condition at the date of sentencing (or its foreseeable
recurrence) may mean that the sentence “will weigh more heavily on the
offender than it would on a person in normal health”; and
(vi) Where there is a serious risk of imprisonment having a significant adverse effect
on the offender’s mental health, this will be a factor in mitigation.
40․ To the above factors must also be added a seventh, namely, that while an offender’s
mental illness may mitigate a sentence in each of the ways described above,
conversely, it may be that because of an offender’s untreated mental illness, an
offender presents more of a risk to the community. This may warrant a need for
increased weight to be given to the need for protection of the community: De La Rosa
v R [2010] NSWCCA 194; 79 NSWLR 1 at [77].
The parties’ submissions
41․ The offender’s counsel noted Dr Bollinger’s opinion that the offender “was operating
from a place of extremely unstable mental health and was entirely unable to exercise
appropriate judgement”. He submitted that the offender’s moral culpability was
accordingly reduced, and that the weight to be given to general deterrence, specific
deterrence and punishment should be significantly moderated. He also submitted that
the offender’s mental condition was such that the sentence would weigh more heavily
on the offender, and that there was a risk that imprisonment would have a significant
adverse effect on the offender’s mental health.
42․ In contrast, whilst the prosecutor accepted that the offender’s moral culpability would
be reduced if the offender lit the fire in an attempt to self-harm, he submitted that the
offender’s moral culpability would not be reduced if the offender committed the arson
as an act of protest. In particular, the prosecutor submitted that the making of a protest
“is indicative of someone who does appreciate the wrongfulness of the conduct”.
43․ The prosecutor further submitted that the Court could not be satisfied on the balance
of probabilities that the offender lit the fire in an attempt to self-harm, noting that
Dr Bollinger had described the offender as “a poor historian” with a limited narrative
memory. The prosecutor further submitted that Dr Bollinger’s report “indicates an
unwillingness by the offender to engage with the treatment and the medication that has
been offered to him in prison” and that he does not believe that he requires
psychological help. In circumstances where the offender has indicated that he does not
wish to engage in treatment for his mental health issues, the prosecutor submitted that
the Court should not accept that incarceration would weigh more heavily upon the
offender because of his mental health. The prosecutor also did not accept Dr Bollinger’s
conclusion that imprisonment would be more onerous for the offender because he
would feel “targeted in actuality or in his mind”. The prosecutor submitted that this
finding was not supported by the history provided by the offender to Dr Bollinger.
Conclusion
44․ As the offender’s counsel properly acknowledges, the seriousness of the offending is
such that a term of actual imprisonment must be imposed. Accordingly, the second
Verdins consideration is not enlivened.
45․ However, I am satisfied on the balance of probabilities that each of the remaining
Verdins considerations are relevant in determining the sentence to be imposed on the
offender.
46․ The offender has provided conflicting reasons as to why he committed the offences. In
his record of interview, the offender said that he started the fire in an attempt “to gas
himself”, whereas he later told Dr Bollinger that he was “trying to make a statement”
about his treatment in custody. As noted above, Dr Bollinger stated that these
inconsistencies may themselves have arisen from the offender’s mental health
condition.
47․ In my view, it is unlikely that the offender set the fire as a well-thought-out protest
against his conditions in custody. As the offender’s counsel submitted,
it would be a very odd protest indeed to protest by lighting a fire but then say you are trying
to kill yourself. … if it was, in fact, the protest it perhaps presents some even more disordered
and illogical state of mind than an attempt to take one's own life.
48․ I note that Pre-Sentence Report records that the offender experienced episodes of poor
mental health prior to and following the offence. There is no dispute that the offender
suffers from paranoid schizophrenia, amongst other conditions. I am satisfied that the
offender’s paranoid schizophrenia played a role in the offending. In particular, I am
satisfied that the condition impaired the offender’s ability to make calm and rational
choices, made him more disinhibited and impaired his ability to understand the
wrongfulness of his actions.
49․ On the balance of probabilities, I am also satisfied that, as a result of this condition, a
sentence of imprisonment will weigh more heavily on the offender than it would on a
person in normal health. I also accept that there is a risk that imprisonment will have a
significant adverse effect on the offender’s mental health. In making these latter
findings, I acknowledge that part of the reason why the offender’s condition is
deteriorating in custody is his refusal to take medication. However, this refusal is itself
an aspect of his mental condition and his paranoia.
Remorse
50․ The offender has displayed limited remorse for his offending. Dr Bollinger reported that:
[The offender’s] attitude indicated that he experiences some level of remorse, however this
appears linked to his extra time in custody, rather than any knowledge of the implications of
his actions.
51․ However, I have taken into account Dr Bollinger’s opinion that the offender’s mental
health impacts his ability to understand the wrongfulness and the seriousness of what
he has done. In this respect, I also note that the author of the Pre-Sentence Report
stated that the offender demonstrated “some understanding of the effect his poor
mental health has upon his offending behaviours”.
Risk of re-offending and prospects of rehabilitation
52․ The author of the Pre-Sentence Report is of the opinion that the offender’s risk of re-
offending is high. I agree with this assessment. The offender’s response to prior
supervision has been poor, and he has been subject to breach action on multiple
occasions as a result of contravening Court ordered conditions. As previously noted,
his behaviour in custody has also been poor and he has been subject to multiple
disciplinary incidents.
Comparative Sentences
53․ The prosecution provided a helpful table of comparative sentences for arsons
committed in custody. That table, which is annexed to this judgment, shows that
sentences have been imposed for arsons in custody which range from a good behaviour order to a starting point (before discount) of imprisonment for 27 months. As
the offender’s counsel noted, a starting point of 12 to 18 months of imprisonment is
commonly imposed for offending of this nature.
Determination
Purposes of sentencing
54․ As the Court of Appeal held in R v Relph [2002] ACTCA 6 at [26] – [28], an offence of
arson is an offence of “great gravity, particularly if there is an element of recklessness
or intent in relation to the possible endangering of human life”. See also Porter v R
[2008] NSWCCA 145 at [81].
55․ An arson within a custodial setting is particularly serious. The need for general
deterrence is particularly high, primarily because of the risk that arsons pose to
inmates, who by reason of their incarceration, are in a position of acute vulnerability.
Arsons within correctional setting also create real risks for the corrections officers who
must serve within them.
56․ In the present case, there is also the need to recognise the impact that the arson would
have had on the offender’s cellmate, who awoke to find his cell filled with smoke and
the corrections officers who were called to extinguish the fire, as well as the effect of
the offence on the community, who must bear the cost of repairing the damage to public
property that was caused by the fire.
57․ For the reasons outlined above, I am satisfied that the offender suffers from a number
of mental illness, in particular, paranoid schizophrenia. I am also satisfied that there is
a connection between this illness and the offending. In particular, on the basis of the
unchallenged report of Dr Bollinger, I am satisfied that the condition impaired the
offender’s ability to make calm and rational choices, made him more disinhibited and
impaired his ability to understand the wrongfulness of his actions. In these
circumstances, I am satisfied that the offender’s moral culpability is reduced. The
weight to be given to general deterrence and to denunciation should be moderated as
a result of the reduction of the offender’s moral culpability. However, this finding does
not mean that general deterrence will be excluded as a sentencing consideration:
Verdins at [15].
58․ I also accept that the offender’s mental condition will weigh more heavily on the
offender than it would on a person in normal health and that there is a serious risk that
continued imprisonment will have an adverse effect on the offender’s mental health.
59․ However, I am also of the view that weight should be given to the need to protect the
community and for specific deterrence. The offender demonstrates little remorse for his
actions. Further, as the prosecution noted, the offender has two previous convictions for damaging property, one of which concerned the use of fire. The sentence to be
imposed must discourage the offender from engaging in further offending of this nature
and protect the community from such offending.
Totality
60․ At the time of the offence, the offender was remanded in custody on charges for which
he has now been sentenced, and which concluded on 3 December 2022. Since this
time, the offender has remained remanded in custody awaiting sentence for the present
offence.
61․ Section 72 of the Sentencing Act requires that any sentence imposed for an offence
committed while the offender was in custody must be wholly cumulative on other
sentences unless the Court orders otherwise. I agree with the prosecutor’s submission
that there is no compelling subjective feature to justify departing from the statutory norm
in this matter: The Queen v Rappel [2019] ACTCA 11 at [24]. Accordingly, the sentence
will be backdated to 4 December 2022.
Disposition
62․ The offender’s counsel conceded that the appropriate penalty for this offence is a term
of full-time imprisonment. In view of the matters set out above, this concession was
properly made.
63․ Section 64(2)(e) of the Sentencing Act precludes the setting of a non-parole period for
an offence committed in custody: see Biddle v Gatherer [2021] ACTSC 236. However,
the prosecutor and the offender’s counsel agree s 64(2)(e) does not preclude the
imposition of a partially suspended sentence.
64․ In my view, the present case is one in which it is appropriate to impose a partially
suspended term of imprisonment. It is clear from the material before me that the
offender will require supervision upon his release.
65․ Without a period of supervision on release, the offender’s risk of re-offending will be
very high. As the author of the Pre-Sentence Report noted, the offender’s primary risk
factors are his mental health issues, his alcohol and substance use issues and his lack
of accommodation. Supervision will assist the offender to address each of these issues
on his transition from custody. A partially suspended sentence, which will facilitate such
supervision, will best ensure the protection of the community.
Orders
66․ For the offence of arson, the offender is sentenced to a term of imprisonment of
15 months, reduced by two months for the offender’s plea of guilty, to a term of
imprisonment of 13 months, backdated to 4 December 2022.
67․ This sentence will be suspended after nine months on the condition that the offender
enter into a Good Behaviour Order for a period of six months thereafter, during which
time he is to accept the core conditions of such an order as well as the supervision of
the Director-General and to obey all such directions as are imposed upon him in respect
of mental health treatment and the treatment of his drug and alcohol problems.
I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker
Associate: A Gallagher
Date: 15 May 2023
ANNEXURE A
Comparative sentences for arsons committed in custody
MATTER CHARGES FACTS/CIRCUMSTANCES SENTENCE NOTES
| R v Winters | 1 x Arson | Placed a box with toilet rolls inside it | 8m (reduced from | At [10] |
| [2022] ACTSC | against the door to his cell and set it alight | 10m), | suspended | - | Fire confined to cell but damage to |
| 42 | (damage property | using a lighter. | after 4 months on a 2 |
interior substantial
charge also taken year GBO
- Risk to other
into account) Cost of the damage caused by the fire
obvious
was $24,227.48
- Intention to disrupt “a criminal history
management of
of considerable Offender’s motive in lighting the fire was prison
length with a to ensure that he remained in the - Actions were
number of serious management wing and not returned to intentional and offences on it” (at the general population for fear for his premeditated
[12]) safety. - His desire to remain in Offender’s background is “profoundly management area sad…easily qualifies as one where the was borne out of principles to be found in Bugmy v The genuine fear for Queen are of application” his safety Court refused to impose a reparation order for fear of hindering offender’s rehabilitation.
| R v Yeaman | 1 x Arson | Positioned flammable articles in cell and | 12m (no reduction) | At [7]: |
| (No 2) [2021] | 1 x Cause GBH | covered ceiling vent designed to detect | suspended after 6m | - | Had recently lit another fire |
| ACTSC 287 | smoke. Called for help saying had lit fire |
Majority of criminal Note: backdated record involved (despite time not
matters disposed Note: Cause GBH subject of NGMI strictly being - Not planned in
rational and
of under MH finding. attributable) so as to
calculated way
provisions affect an immediate
- Degree of
Significant weight placed on MH suspension (due to
impulsivity
MH)
- Motives confused - Reduction in moral
culpability- Voluntarily terminated incident
- Modest amount of
damage- In custody =
particularlydangerous
| R v Rahman | 1 x Arson | Placed blankets, bedding and paper cups | Indication of 25% | At [14]: |
| [2021] ACTSC | on mattress. Later lit. added a blanket as | discount | - | Not pre-meditated |
| - | No rational motive |
| 257 | “limited | criminal | further fuel. Used intercom to alert |
- Product of
history, which is corrections officers. 2yr GBO (with
offender’s
largely reflective of supervision)
schizophrenia
a history of mental “The mental health component is a
- Likely
illness” (at 42]) prominent consideration in the present
experiencing
case.” (at [41]) psychotic symptoms at the Unstable childhood (at [21]) time
- Custody setting meant “posed some risk – although a relatively low risk” - Public resources
expended by firiesattendance - Damage of
relatively little
value - $2,691(see [12])
| R v Beroukas | 1 x Arson | Lit fire in cell. Fire spread to other parts | 10m | imprisonment | At | [6], | objective |
| [2021] ACTSC | of cell and smoke came out of the cell. | (reduced from 12m) | seriousness determined |
| 172 | “significant criminal | Fire extinguished relatively quickly by | fully suspended on | by: |
history, which has other inmates. $2,300 of damage (at [5]) 12m GBO (with - Extent of damage - Potential risk to
resulted in him supervision)
others
spending much of Offender gave evidence attributing Note: this was
- Possible spread
his adult life in offence “to an immature desire to structured so as to be
- Motive
prison.” (at [15]) impress people” (at [8]) cumulative with
- Degree of
offender’s existing
planning
Childhood marred by physical and sentence - Pre-meditation
emotional abuse (at [10]) although not Occurring in prison is an taken as significantly mitigating on aggravating factor (at sentence (at [11]) [8]) Degree of remorse and taken part in RJ
(at [13])Had done all available courses while i/c (at [16]) and recently became a father (at
[17])
| R v Denniss | 1 x JC Agg Rob | JC Agg Rob related to separate incident | 12m | imprisonment | At [10]: |
| [2021] ACTSC | 1 x Arson | while in custody | (reduced from 16m) | - | No evidence of value of damage |
| 15 | |||||
| but appeared | |||||
| Previously | Covered window of cell door with towel. | Structure: | |||
| largely confined to |
sentenced for 2 x Corrections officer attempted to remove - due to amount
of existing the door Arson committed in towel, two other COs attempted to assist
- No intention to sentence still
custody – see R v but offender spat on them. 10mins later
outstanding, harm others
Denniss [2019] CO noticed flames on towel. Cos some
ACTSC 283 extinguished fire through cell door hatch.
Subsequent investigation suggested use concurrency although risk
afforded with created
“extensive criminal of electricity to start fire (potentially using prior sentence.
history” (at [24]) bedding and toilet paper as fuel)
- Arson 6m
consecutive
Experienced FV and sexual assault as
with JC Agg
child at hands of adult family member (at
Rob
[12]) - NPP ratio from existing “deprived and dysfunctional childhood” sentence (at [30]) maintained (62.5%) ADHD and mild intellectual disability (at [16]); see also at [21] for further diagnosis
Significant history of self-harm or suicide attempts (at [21])
“less suitable vehicle for general deterrence” (at [30])
| R v Howsan | 1 x Arson | Set fire to material in cell. Greatest risk | Sentence | followed | Risk to other occupants |
| [2020] ACTSC | was to offender (at [6]) | deferred sentence – | of prison who cannot |
| 172 | variable response (at | move freely (at [6]) | |
| Longstanding drug issue and suffered | [8]); sentenced on | ||
| from mental health conditions (at [5]) | basis of compliance (at [9]) |
12m imprisonment (reduced from 16m) wholly suspended on
GBO 18m (with supervision)
| R v Denniss | 2 x Arson | # 1: Set fire to cell. Aggressive and | On | each: | 18m | At [9]: |
| [2019] ACTSC | abusive when handcuffed. Seemingly | (reduced from 24m) | - | Fires not particularly large |
| 283 | “poor | criminal | used lighter. Extensive damage to cell |
- Deliberate
history” (at [13]) cost of which was $87,748. Extinguished Structure:
- No intention to
by COs (at [2]) - Sentences
harm others
concurrent save
demonstrated.
#2: set fire to cell in Management Unit as to 6m
Suggestion of
- Previous NPP where he was housed or disciplinary
increased by intent to self-harm
reasons. Cos informed re fire and when
12m re #1
directed offender to open the cell door
hatch, the offender refused. Cos opened At [20]: hatch and offender then began to block - “General the hatch thereby stopping the water deterrence is very from the hose. CO managed to use fire important extinguisher past the offender. Cos then particularly in retreated due to smoke. Offender relation to a prison attempted to relight the fire. After population who
may consider
negotiations the offender was
handcuffed and extracted. Cost of repair damaging property
within the prison$17,127 (at [4]-[8]) by arson.”
“depressing picture of personal
At [21]:
disadvantage, drug use, mental health - List of prior AMC problems and criminal behaviour.” (at arson matters [10]) “significant history of threats and acts of self-harm, whilst in both NSW and AMC custody.” (at [11]) “deprived and dysfunctional childhood…commenced using illicit drugs when he was a child” (at [17])
| R v Hudson | 2 x Use Carriage | Offender did not wish to move cells for | 21m | imprisonment | Premeditated (at [50]) |
| [2019] ACTSC | Service (Harass) | fear of members of rival gang. Had been | (reduced from 27m) |
| 110 | 1 x Demand with | recorded on calls saying that if moved | “gratuitous act that was, |
Threat would “start punching on” and “kick off”. Structure: no doubt, by way of
1 x Threat GBH When officers came to move the offender - Total head protest” (at [53]) sentence of 1 x Blackmail he was holding 2 makeshift razors (2 x 50m with a NPP 1 x Arson Detainee Possess Prohibited Thing). Set of 33m 1 x Reckless ABH fire to top and bottom bunks and started 1 x resist/obstruct fire on cell floor. Entire cell block was Territory Official locked down. $24,224 of damage. When
1 x Possess Cos attempted to extinguish fire through
Offensive Weapon cell door hatch, offender placed back with Intent against hatch and blocked hose
2 x Detainee (Obstruct). Events on extraction led to
Possess Prohibited charges of Possess Offensive Weapon Thing with Intent and Reckless ABH (CO as Also breach of S/S victim). Another CO hurt their knee and a further suffered smoke inhalation. Firies attended to check and clear cell. (at [29]-
“long criminal [41]) record” (at [56])
although generally Dysfunctional upbringing (at [75]) not particularly serious (at [57])
| R v Dunn | 1 x Arson | Set fire to bedding in cell. $2,538.20 of | 12m | imprisonment | 2 x earlier in custody |
| [2019] ACTSC | damage (at [4]-[5]) | (reduced from 16m) | arsons outlined at [39]- |
| 75 | “significant criminal | [40] |
history in the ACT, Psychiatric report indicated: Structure: NSW and
Queensland” (at - “his actions in setting fire to his - 6m cumulative Wrigley (which set out mattress in his cell were most likely with existing [26]) factors to consider in impulsive and directed towards sentence arson matters) quoted at killing himself. His schizophrenia, - NPP increased [41]) depression, insomnia and unstable by 2m personality mitigate against the seriousness of his actions.” (at [19]) - Custody would be more onerous (at
[21])Sentencing judge accepted reduced moral culpability, that imprisonment would weigh more heavily and that general and specific deterrence should be moderated (at [24])
Delay taken into account (at [34])
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