Director of Public Prosecutions v Jones

[2023] ACTSC 20

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Jones

Citation:

[2023] ACTSC 20

Hearing Date:

16 February 2023

DecisionDate:

16 February 2023

Before:

Mossop J

Decision:

See [33]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offences of arson, common assault and possession of offensive weapon with intent – where offence committed in response to unreasonable neighbourly behaviour – where arson not proved to have caused significant damage or harm – sentence of imprisonment backdated to account for pre-sentence custody – good behaviour orders imposed

Legislation Cited:

Criminal Code 2002 (ACT), s 404(1)

Crimes (Sentencing) Act 2005 (ACT), s 35(4)

Crimes (Sentence Administration) Act 2005 (ACT), s 108

Crimes Act 1900 (ACT), ss 26, 381(1)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Parties:

ACT Director of Public Prosecutions

Taylor Jones (Offender)

Representation:

Counsel

J Melloy (DPP)

E Chen (Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT (Offender)

File Numbers:

SCC 257 of 2022

SCC 258 of 2022

MOSSOP J

Introduction

1․Having good neighbours can be a great thing. Having neighbours that you neither see nor hear is alright. Having bad neighbours can be awful. However, the law does not recognise arson as a solution to having bad neighbours.

2․Taylor Jones has pleaded guilty to one count of arson, one count of common assault and one count of possessing an offensive weapon with intent.

3․The maximum penalty for arson contrary to s 404(1) of the Criminal Code 2002 (ACT) is 15 years imprisonment, a fine of 1500 penalty units or both. The maximum penalty for common assault contrary to s 26 of the Crimes Act 1900 (ACT) is two years imprisonment. The maximum penalty for possessing an offensive weapon with intent contrary to s 381(1) of the Crimes Act 1900 (ACT) is one year imprisonment, a fine of $2000 or both.

Facts

4․The relevant facts are discerned from an agreed statement of facts and supplement in some respects the oral evidence given by the offender at the sentencing hearing. The offending occurred at a public housing unit complex in Reid. The offender’s neighbour was playing loud music with a prominent beat during the day. This disturbed the offender. He had had previous interactions with his neighbour and their relationship was not good. He blamed his neighbour for bad behaviour that had been directed towards him and thought that his neighbour had an arrogant attitude. The offender went up to his neighbour’s unit and said “do you mind turning the bass down, or do I need to report you again?”. An argument broke out. The neighbour came out of the unit pointing his finger at the offender’s chest. The offender, who was significantly smaller than his neighbour, retreated down the unit’s stairs to his residence. The neighbour followed him and said “I will fuck you up”. There was other swearing and comments by each man. The offender then came back up the stairs holding one of his dogs. It is not clear why he brought his dog. However, there was a further argument with his neighbour. During that argument the neighbour said words that the offender understood to be a threat that he would kill the offender and his dog. It appeared as though the dispute would become physical but once again the offender retreated with his dog.

5․Approximately 30 seconds later the offender came back upstairs with a knife and aerosol can in his hands. The neighbour began playing loud music again. The offender yelled “you want to be a smart arse”, punctured the aerosol can with a knife, pulled out a black lighter from his pocket and set the aerosol can on fire. He held the flaming can and used it to set the front door of the unit alight for a short period of time. He also inadvertently set his right pant leg on fire. He then kicked the can away screaming “I’ve had enough of it” and “I need sleep”. He walked back down the stairs and his neighbour exited and started to chase him holding a bottle of water. The offender turned around and walked back towards him producing the knife. He raised it in a threatening manner and screamed “back the fuck up”. He then raised the knife again and charged at the victim with his head lowered, causing the knife to slash towards the victim’s leg, missing them. He then raised the knife above his head and yelled at the victim again to “get the fuck back”. The offender then left and the neighbour followed him down one flight of stairs. There was some further argument further down the stairs after the neighbour had grabbed a metal pole and followed the offender down.

6․The entire incident took less than five minutes.

7․The incident was captured on CCTV by a camera which was located above the door to the neighbour’s premises. Captured on the CCTV were the interactions between the offender, the neighbour and a female in the neighbour’s house. This included the lighting of the aerosol canister. The flames from the canister lasted for 20 seconds. They created some smoke marks on the outside of the premises and on the ceiling just inside the front door. There is no evidence of any damage to the screen door or to any damage other than by discolouration of the premises. There is no evidence of any financial loss incurred by the neighbour or by the Commissioner for Social Housing.

8․Police were called and ultimately arrested the offender. He spent 17 days in custody. Bail conditions prevented him returning to his unit and he had to live a substantial distance away, making his work arrangements more difficult during the period that he was on bail. A result of this change in living arrangements also led him to have to give away his three dogs.

9․At the time of the offending he was subject to a 12-month good behaviour order with a 60-hour community service condition imposed by a magistrate after a conviction for damaging property.

Objective seriousness

10․The fact that he was on conditional liberty is an aggravating feature on the sentence.

11․The objective seriousness of the arson offending is at the low end for this offence. It involved only very limited premeditation as a result of the adverse interactions with his neighbour. It was very brief, not proved to have been done with an intention to cause damage and not shown to have caused more than temporary discolouration.

12․The assault involved the apprehension of violence when he was swinging the knife. The plea of guilty accepts that in the circumstances his actions of self-defence were excessive. It is at the low to mid-range of objective seriousness. The possess offensive weapon charge relates to the possession of the knife. The knife had been used to puncture the aerosol can. The moral culpability associated with its use is taken into account in the assault charge. It is in the low to mid-range of objective seriousness for this offence.

Subjective circumstances

13․The subjective circumstances of the offender are described in a pre-sentence report dated 8 February 2023 and a psychological report of Rita Sosich.

14․My impression of the offender, his personality and prospects for rehabilitation have been affected by having seen him give evidence at the sentencing hearing.

15․The offender is 28 years old. He was placed in foster care when young and experienced many difficult placements up until the age of 16 years. He was then placed back into the care of his mother but that placement broke down shortly thereafter. He lived in youth refuges. He had long periods of homelessness prior to getting into ACT Housing at the end of 2020. Unfortunately the complex in which he obtained that residence had many antisocial people within it and many issues relating to drug and alcohol use. He had tried to move to alternative accommodation but that had not occurred prior to the offending. He has continued to pay rent on his public housing property but hopes to arrange private accommodation in the near future. He attended schooling until year 12 but did not receive any qualifications. He had occasionally worked in the hospitality industry. He started but did not complete an apprenticeship as a chef. In the last month he has gained employment which he finds very satisfying and hopes to continue with. He has also re‑established contact with half-sister and he gave evidence that he considered that this was a very positive development.

16․He has a history of drug use which includes regular cannabis use and experimental use of cocaine and MDMA. He also drinks alcohol. He reported a relatively low use of cannabis at present.

17․The pre-sentence report records that while in prison there was no evidence of major mental illness. He is not currently involved with any public mental health services. He believes he has autism spectrum disorder although has not been formally diagnosed with this. The report of Ms Sosich provides a diagnosis of major depressive disorder at the time of the offending. The information available to her was insufficient to make any diagnosis of autism spectrum disorder.

18․He was assessed by the author of the pre-sentence report of being at a high risk of general reoffending, not suitable for a community service work condition and not suitable for an intensive correction order.

19․The summary opinion of the author of the pre-sentence report recorded his criminal history which included multiple assaults and property damage offences “indicating issues with aggression and impulse control”. It referred to his difficult childhood and the steps he has taken to secure more suitable accommodation and employment.

20․The report of Ms Sosich records the history of adverse interactions with antisocial residents within the unit complex. These instructions to Ms Sosich were consistent with the evidence that the offender gave in court. The report also records a history of depression and schizophrenia in his mother and the difficulties that he had in his formative years in out-of-home care. It recorded that his history of intimate relationships appears to have been with others who have significant mental health and substance use issues and have ended badly.

21․He was cross-examined about whether or not he felt remorse. The evidence indicated that he regrets his actions largely because of the significant consequences of those actions for him. In the circumstances, that attitude is not unreasonable and does not, in my view, adversely impact on his prospects for rehabilitation.

Criminal history

22․The offender has a substantial criminal history. [Redacted]. As an adult he has convictions for damaging property, attempted theft, common assault, possessing cannabis, using a carriage service to menace harass or offend, failing to appear after a bail undertaking and indecent exposure. He has had the benefit of a number of suspended sentences as an adult.

Plea of guilty

23․The offender pleaded guilty to all charges in the Magistrates Court on the fifth mention.

24․The prosecution submitted that s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) was applicable. That prevents any significant reduction on account of a guilty plea in circumstances where the court considers that the prosecution’s case for the offence was overwhelmingly strong. Counsel for the offender accepted that the case for the Prosecution was very strong because events were captured on CCTV. However, he submitted that it was not overwhelmingly strong because there was always the possibility that the jury may somehow accept a submission asserting that the arson was committed in self-defence.

25․In my view, the prosecution case was overwhelmingly strong. All the relevant events were captured on CCTV. A jury may only have accepted an argument of self‑defence if it reached a verdict which was unreasonably merciful. As a consequence, it is not possible to make a “significant reduction” on account of the guilty plea.  I will therefore make the only reduction which I considered to be permissible, namely a reduction of 5 percent.

26․The s 35(4) argument was not put in relation to the other counts and had I been imposing custodial sentences then I would have reduced each of them by 25 percent. I take the plea of guilty in the Magistrates Court into account generally in relation to those counts.

Consideration and decision

27․The offender was suffering from major depression at the time of the offending. That was caused by the circumstances in which he was living. The offending itself was as a result of him attempting to address unreasonable behaviour by his neighbour that was interfering with his well-being. The video of the incident and the evidence that the offender gave makes it clear that the offender at the time of the offending was at the end of his tether. There was minimal damage to the property as a result of the offending.

28․While I have accepted the evidence that he was suffering from a major depressive disorder at the time of the offending, I do not consider that this can be disentangled from the factual circumstances of his living environment which generated the conditions in which this unfortunate behaviour occurred. While there does appear to be a degree of fragility in his mental health, it is more appropriate to characterise the present conduct as driven by the adverse environment rather than by a mental health condition because these two things are closely related.

29․The picture presented of the offender is somebody who has a difficulty with emotional regulation. That is likely to be baked into his personality as a result of his upbringing and adverse experiences during his youth. To that extent, the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are relevant. While his present employment is a positive sign and he is optimistic about his prospects of gaining accommodation in the private market, away from the toxic environment which he experienced in the complex where the offending occurred, there appears to me to be a degree of fragility in his present circumstances as a result of the lack of an infrastructure or familial or other social support for him. Thus, while the indications are positive the prognosis must be guarded.

30․It is significant that he has spent 17 days in custody as a result of the offending. I also take into account the impact of his bail conditions upon him and the consequential loss of his animals.

31․Counsel for the offender accepted that a sentence of imprisonment was appropriate. However, it was submitted that a partially suspended sentence of imprisonment backdated to take into account the period already spent in custody would be appropriate. I accept that submission. For a person with a substantial criminal history who commits an offence while on conditional liberty, specific deterrence must be a significant consideration. General deterrence is also significant in relation to the undesirability of escalation of neighbourhood disputes and in this case, recognition of harm done to the victim is a lesser consideration. The arson occurred against the background of the mental health consequences of living where he did and the antisocial behaviour of his neighbour. Obviously, the law cannot accept that arson is a solution to domestic disputes. However, it must also be recognised that the law does not provide an appropriate solution in all cases of bad neighbourly behaviour and hence some leniency should be afforded to persons who have unlawfully reacted to such behaviour.

32․In my view, the appropriate starting point is a sentence of imprisonment of two months reduced to 57 days on account of the plea of guilty. That sentence will be backdated to take into account the 17 days of pre-sentence custody. Each of the other charges may be dealt with by way of a good behaviour order. In each case the good behaviour order will be without supervision and for a period of six months. In relation to the breach of the good behaviour order imposed in March 2022 the prosecution submitted that I should take no further action on the breach and that is the course that I will adopt.

33․The orders of the court are:

1.On the count of arson (CC 8773/2022) the offender is convicted and sentenced to imprisonment for 57 days commencing on 30 January 2023 and ending on 28 March 2023.

2.The sentence is to be suspended after having served 17 days, which period has already been served, upon entering into an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months.

3.On the count of possessing an offensive weapon with intent (CC 2022/8772) the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months.

4.On the count of common assault (CC 2022/8774) the offender is convicted and required to enter into an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months.

5.In relation to the breach of the good behaviour order imposed on 1 March 2022, pursuant to s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) no further action is taken.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: 3 March 2023