Director of Public Prosecutions v Mannion

[2020] VCC 185

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT GEELONG

CRIMINAL DIVISION

Case No. CR-19-01460

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN MANNION

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	5 December 2019; 21 February 2020
DATE OF SENTENCE:	28 February 2020
CASE MAY BE CITED AS:	DPP v Mannion
MEDIUM NEUTRAL CITATION:	[2020] VCC 185

REASONS FOR SENTENCE

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Catchwords: Arson – conduct endangering life – dispute as to quality of bathroom renovation – alleged poor workmanship – vengeance by setting complainant’s car on fire – both car and complainant’s weatherboard house destroyed – high moral culpability – deficient psychological report – self-reporting to psychologists contradicts elements of plea – diagnosis of epilepsy and acquired brain injury – cognitive impairments – Verdins     

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp	Office of Public Prosecutions
For the Accused	Mr R. Lawrence (for plea) Ms S. Mawby (for sentence)	Criminal Lawyers Geelong

HER HONOUR:

1.Sean Mannion, on Christmas morning 2017, as Heath Tournier, his partner, Tarryn Mann and their baby daughter, then only 18 months old, slept in their family home in Torquay, you set a petrol bomb under their car, which was parked in the driveway adjacent to the house. The house was a weatherboard one. The car went up and so did the house. Mr Tournier was woken by the fire and took his partner and daughter out of the rear of the house, as the fire took hold. The family escaped physically unharmed but they are left, even now, two years later, with a continuing legacy of shock, loss and emotional distress, which their victim impact statements explained in heartfelt and heart-rending terms.

2.The impact is clear and perfectly understandable, going well beyond a ‘dollar’ loss. The overall financial loss sustained as a result of this has not been quantified, but the figures provided give some indication of the scale of the destruction. The house, their family home was destroyed. The cost of just clearing the site and of rebuilding a like house was a little shy of half a million dollars.

3.Their car, a recent model Mercedes station wagon was also destroyed. It was insured but the payout cost on the finance of $160,000 exceeded the insured value by $40,000, which meant that they, as well as the insurers, shouldered part of that loss. No estimate of the other losses sustained by them, such as the value of destroyed personal items and household goods or the cost of finding alternative accommodation as a result of the destruction of their house, was provided nor was any estimate put of the other inevitable flow-on costs of the destruction of a family home and everything in it.

4.Mr Tournier and Ms Mann's shock and distress was compounded when they discovered that you were responsible and your reasons for acting as you did.  Mr Tournier operates a business, a building and property development enterprise. Earlier in 2017, your mother had retained the services of
Mr Tournier's company to renovate the bathroom at a house that was co-owned by you and your mother. You lived in that house. Your mother lived elsewhere.  You were at the time, unemployed. Your mother had assumed responsibility for paying for the renovations. A quote of $13,200 was given for the renovations to the bathroom and it was accepted by her in April 2017. In the course of carrying out the bathroom renovation, it was discovered that the house pipes were corroded. That required significant remedial work and a quote for just under $16,000 to replace the freshwater pipes in the house was also accepted by your mother.

5.The works took approximately six weeks. Your mother paid the invoices on completion or practical completion of the works. Although the company which quoted and undertook the works was Mr Tournier's company, it should be noted that he didn't personally provide the quote, nor was he personally carrying out the works, although of course as it is his company, he was responsible for the quality of the work and the accuracy of the quote.

6.According to the prosecution summary, some months after the works were completed, your mother contacted Mr Tournier, complaining that the glass top of the vanity or the mirror of the vanity had cracked. Mr Tournier had photos which showed that the vanity was not damaged when it was installed and the works completed. He suggested to your mother that she contact the manufacturer to see if replacement was covered by warranty.  She did, but given that there was evidence that the vanity was not damaged at the time of installation, not surprisingly she was told it was not a warranty claim.

7.Sometime after that in early November, your mother went to Mr Tournier's home in Torquay, demanding that he replace the vanity at his own cost. He refused,  pointing out again that it was undamaged when he had completed the installation of it.  However, he offered to install a new vanity without cost, if your mother wanted to buy a replacement one. On the prosecution summary, the cost of a new vanity was between $150 and $300.

8.This was apparently not a satisfactory offer to your mother and, again on the prosecution summary, she became abusive, pushed into the house and shoved Mr Tournier. His partner and child were at home and Ms Mann herself witnessed this or some of this. The child heard some of it. As your mother left she said, 'I'll be back' or 'We'll be back.'

9.Mr Tournier heard nothing more and then six weeks later in the early hours of Christmas morning, you set that fire bomb under the car with the disastrous consequences which I have recounted. I have described it as a fire bomb, because that to me seems to be an appropriate lay term. It was an incendiary device constructed by you at home in a box, that comprised, amongst other things, sparklers and petrol. It was capable of being lit and then at some time after it was lit, becoming alight and setting fire to things around it, which is exactly what happened. The box was found underneath the car and it is clear from the evidence of the examination of the scene afterwards, that this was the source of the fire which set the car alight and then the house, to which the car was so closely parked.

10.You were soon identified as the arsonist. Your car was identified on CCTV nearby, parked near the house, as was a man matching your description and wearing a hoodie and sneakers, which were able to be described and later found at your house, walking to the house carrying a box, in which it was later ascertained that fire bomb had been constructed. Your phone records put you in the vicinity at the time.

11.You were arrested and questioned, but you lied, asserting that you had nothing to do with it and you gave a false alibi which involved a friend of yours. When interviewed, you acknowledged that you knew Mr Tournier. So far as your dealings with Mr Tournier were concerned, you told the police that Mr Tournier did not really finish the bathroom renovations. You described the work as “not very good” and it was “actually terrible”. You said he was very forceful with or to your mother in relation to payment of invoices. You acknowledged you knew your mother had been to Mr Tournier's house, but denied any knowledge of an argument or physical altercation. You admitted knowing that Mr Tournier drove a black Mercedes (that is, the car that was set alight) and you denied using an incendiary device to start the fire.

12.Despite the denials at interview, negotiations between May and July 2017, resulted in guilty pleas to these two charges of arson and reckless conduct endangering life, at what was, by then, the fourth committal mention on 19 July 2017.

13.The offences were committed during the operational period of a community correction order imposed by this court after an appeal by you from orders made by the Magistrates' Court in February 2016. By the time of the commission of this offence, you had already once been dealt with for breaching the community correction order (in February 2017) and the CCO had been varied, extending its operation through to February 2018.

14.You have convictions for matters other than those which resulted in the imposition of the community correction order in February 2016. I will come to those later. But it is clear therefore that, subject to considerations personal to you, denunciation, deterrence, both general and specific and just punishment loom large in the sentencing mix. These were shocking offences. You destroyed the car and home of a family and endangered their lives because of a crack in the mirror or the surface of a vanity unit which had not occurred until after the installation of the vanity. You had not paid for its installation. A replacement would have cost no more than $300. And Mr Tournier had offered to install a replacement at no cost to you or your mother.

15.It was therefore, on the prosecution case and on the summary presented to me, a cruel and vengeful act of destruction, risking the lives of Mr Tournier, his partner and child, and causing extensive damage to their car and home, with significant flow-on damage, because you were dissatisfied with the quality of work on a relatively minor renovation. You have given a number of versions of the causes of dissatisfaction with the work. It was not until the plea was presented that it became clear that you did not accept the prosecution summary which had been on record at the time that plea negotiations were conducted and concluded and filed long before your plea hearing in this court was held.

16.You told the psychologist, Alison Mynard, who had assessed you in September 2019 for the purposes of the plea, both that you had engaged the builder and then later that your mother had engaged him. You reported to her and she acted on your self-report, that you had paid $30,000 for the works, but the works were unfinished and not of good quality. You told her that the bathroom remained unfinished, that tiles broke, the bath was not put together properly and the glass doors on the shower had come off. You were assessed again for the purposes of the plea by a neuropsychologist, Dr Treeby, in December 2019. You told him that the person doing renovations, that is the person whose car you set alight and whose house you destroyed, had lied and said he had done things to the house but he had not: “He lied, he charged us a lot of money, he took all our money, he did not return any of our calls, we could not get him back to finish the job, the bath does not work and the laundry was all ripped up.”

17.It would appear from what I was told on the plea, that no issue was taken with the genuineness of the discovery of the corroded pipes, the need to replace them and the cost of that. It was put to me in the course of the plea that you were unhappy because the shower screen had dropped on its hinges and was dragging or jamming on the tiled floor of the shower, which rendered the shower inaccessible, resulting in you removing the doors and that the tap and faucet over the bath hadn't been installed. In the course of a plea when I asked who had paid for the works, your counsel confirmed your instructions that it was your mother who had paid for them, but it was then put that you believed or understood that half the cost of those would be somehow offset against your half share in the house. That is the highest any financial loss incurred by you was put.

18.There had been no indication before the plea was finally heard, after it had been adjourned to allow a neuropsychological assessment to be conducted, that you took issue with the prosecution summary in relation to the extent of your dissatisfaction with the works or intended to rely on more extensive complaints about the quality of the works, as relevant to your motivation for committing the offences.

19.As I indicated in the course of a plea, I was not prepared to accept bar table assertions which challenged the prosecution summary and of which the parties had not been notified in advance and which were not supported by material in the depositions in relation to those broader and more widespread complaints in relation to the quality of the work. However, as Mr Lawrence, your counsel, submitted, I agree that it is of little moment because, even if there were more outstanding issues than the crack in the vanity and of the sort detailed by him, and even if they could or should have been remedied by Mr Tournier's company, they were minor issues, requiring little time and little cost to remedy.

20.Although you have placed emphasis on the money that you had paid for the works when explaining your motivation to the psychologists for acting as you did, am not satisfied that there is any evidence that you did pay for the works or even that half of the cost of the works, paid for by your mother, were to be offset or had been offset against your half interest in the house, therefore causing direct or actual financial loss to you.

21.There is no contemporaneous or objective support for the version of events that you advanced to Ms Mynard or Dr Treeby or to me through your counsel. The very highest it can be put is that you developed an irrational and baseless sense of grievance about the work.  Your moral culpability in my view for this offending in those circumstances is very high. It was properly characterised by the prosecution as being a form of payback.

22.Insofar as any reliance therefore was placed by either Ms Mynard or Dr Treeby on your developing a sense of grievance because you had suffered a financial loss as a result of paying for an inadequate renovation job or because you had paid for works and had not received value for money, the lack of  any evidentiary foundation for that clearly diminishes the weight to be given as to opinions based on that..

23.There are other concerns with the accounts given by you to Ms Mynard and Dr Treeby and upon which they relied in expressing their opinions. To both of them you said that you did not want the house to catch on fire and did not expect it to. As your counsel frankly acknowledged in the course of the plea, those assertions are inconsistent with your plea of guilty to the charge of reckless conduct, placing Mr Tournier, Ms Mann and their infant daughter in danger of death by starting a fire so close to the weatherboard house in which they were sleeping. Your counsel expressly acknowledged that you understood the elements of that offence of reckless conduct, placing persons at risk of death and understood it involved an acknowledgement that, at the time you set the fire bomb under the car, you foresaw that an appreciable risk of death to the occupants of the house was a probable consequence of your actions.

24.It follows therefore too that I reject any opinions of Ms Mynard and Dr Treeby which are based on self-report that you did not anticipate or want the house to catch on fire. They are simply inconsistent with the pleas of guilty. So, for example, Ms Mynard said in her report,

‘On the day of the offending, which was Christmas day in 2017, Sean explained that he had no money and was so angry at the victim, that he went to his house and set his car on fire.  He stated that he just wanted to scare him, by damaging his car and did not want his house to catch on fire too.’

25.Later, she said,

‘It appears that when the victim seemed to take advantage of him, not offering a viable solution, Sean felt the memory of all the other people taking advantage of him, abusing him and all the trauma associated with those years [meaning your years of drug taking and moving in a drug taking and violent milieu]. It appears that when Sean’s ‘survival brain’ was prominent, it was evident that he was impulsive, took risks, was more hypervigilant, was seeking substances to soothe himself, but also feeling defenseless, helpless, flat, empty and numb.’

26.She then concluded,

‘In that state, coupled with his relapse back into using substances, it is the writer's opinion, that Sean's ability to make clear and reasoned decisions were affected, as well as his ability to make appropriate judgments was also impaired and his ability to control his emotions was severely reduced.’

27.Dr Treeby reported that you had said to him that you had become increasingly frustrated and angry with the victim and said, 'I went there to burn his car.  The fire caught onto the house which I did not want.  I did not expect the house to get burnt.'  He concluded,

‘Mr Mannion's severely impaired problem solving skills and poor ability to engage in consequential thinking, appeared to be evident in his offending behaviour. At interview Mr Mannion indicated that he became increasingly frustrated and angry at the victim and alleged he lied and said he had done things to the house that he had not.  “He lied, he took a lot of money, he did not return our calls, we could not get him back to finish the job.  The bath doesn't work.  The laundry was all ripped up”.’

28.Dr Treeby continued,

‘When pressed, Mr Mannion was unable to spontaneously generate any more adaptive strategies to resolve his workmanship dispute with the victim. He also said that he did not foresee the house catching fire and remarked; “I went there to burn his car. The fire caught onto the house, which I didn’t want. I didn’t expect the house to get burnt. I didn’t feel good after the house caught fire.’

29.I can place no reliance on those opinions because of the absence of an evidentiary foundation for them, or because they directly traverse your plea of guilty.

30.Returning then to the significance in sentencing of denunciation, deterrence, both general and specific and just punishment for these offences. I have already identified why, in my view, your moral culpability is high and why these are such serious offences and why therefore the sentencing considerations I have identified are so important. This was an act of vengeance. The reason for wanting vengeance was baseless or almost without foundation. Your conduct was so entirely disproportionate, even to your self-induced sense of grievance, to what had occurred, bringing a level of destructiveness and danger to what was at best a minor contract dispute and one where you had a third party interest. This therefore clearly calls for the most severe condemnation and significant punishment. It must serve as a deterrent to people who think, not only that they can engage in such wanton destruction of other people's property because of a self-induced minor grievance, but who cause such risk of death.  What then are your personal considerations that balance against that and which I can take into account?

31.You are 36, currently single and without dependents. You completed secondary schooling and went to work in the family business. Your father died when you were in your early 20s and it would appear you remained living at home with your mother and working in the family business, apart from periods where you may have moved in to cohabit with a partner. But by and large you remained at home living with your mother until you were in your early 30s and remained working in the family business until then as well.

32.Since your early 30s, you have lived in the house that you jointly own with your mother. For some, if not all that time, your only sibling, a brother two years older than you, has also lived in that house with you. Although you are currently single and in your 30s, you have had two relatively long-term relationships.  This would suggest a relatively stable and unremarkable life, but the picture is more complex than that. Your mother, who is clearly very supportive of you, gave evidence on the plea. She describes a family life made unhappy by your father's idleness, heavy drinking and dismissive attitude to his wife and sons. A life of long work hours put in by her at the expense of family life and of significant social isolation, on your part, from your school days through to now.

33.In your early 30s after you had stopped working in the family business, you moved out of home and it appears then, you turned to drugs and crime. In December 2015, you were sentenced to a short term of imprisonment, 42 days, of which you had already spent nine days in pre-sentence detention, and then to a community correction order for trafficking in and possession of various drugs, and dealing in the proceeds of crime. You appealed that sentence and were placed on a community correction order without any term of imprisonment for a period of 12 months. During the operational period of that community correction order, you committed further offences and were sentenced to be imprisoned for a period of 60 days for burglary, theft and further drug possession and use offences. As a result, breach proceedings were instituted in respect to the original community correction order. 

34.And as I have already noted, this court then extended the operation of that community correction order for a further year. So you not only breached a community correction order by the commission of these offences, but the order that you were subject to had already been extended as a result of a previous breach constituted by at least the commission of further offences during the operational period. It was a condition, both of the original community correction order and the extended one, that you engage in drug rehabilitation and treatment. Although you have consistently denied being ice-impaired at the time of the commission of these offences, you told both psychologists who assessed you that you had relapsed into ice use in the period leading up to the commission of these offences, having maintained a period of remission or partial remission during the time that you were serving your term of imprisonment or on your CCO.

35.None of this is particularly mitigatory.  On your account, you did not start abusing drugs or committing offences until you were in your 30s. That is, so far as the law is concerned, when you are a mature adult, capable of making conscious choices about offending and drug use and against a background of a demonstrated capacity for 12 years or so of holding down employment. Again, though, that is not the whole story. 

36.When you were 14 you suffered a grand mal seizure as a result of which you were diagnosed with epilepsy. That is, of course, a lifelong condition. You report suffering intermittent seizures through your early 20s, despite being prescribed medication which should have assisted in controlling it, but epilepsy is a notoriously difficult condition to monitor and control and sadly seizures can occur even with medicated people.

37.In 2015, which is during your period of amphetamine abuse, you suffered a series of three grand mal seizures, which again required hospitalisation. The hospital records report what they described as sub-optimal medication compliance no doubt exacerbated by your amphetamine use. CT scans were conducted after the first grand mal seizure when you were 14 and again after the 2015 episode. Both of them revealed normal brain functioning, however neuropsychological testing conducted by Dr Treeby reveals that you now have an acquired brain injury. Dr Treeby noted that you had clear risk factors for an acquired brain injury, not only because of the epilepsy and seizure history, but because you also suffer from diabetes myelitis and you have that history over recent years of what Dr Treeby describes as heavy amphetamine use.

38.He assessed your pre-morbid intelligence and capacity as low-average to average, consistent with your history of untroubled schooling, including completion of your VCE and achieving an ATAR of 50. However, Dr Treeby's testing revealed that your current overall intellectual functioning is now rated as borderline.  In his report, he said,

‘On neuropsychological assessment, Mr Mannion performed in the Borderline range on an overall measure of his intellectual function (FSIQ = 72, 3rd percentile). His working memory function and information processing speed were both impaired (Borderline). There was also clear evidence of memory difficulties on assessment. His ability to recall verbal auditory information in the form of a word list and stories read to him fell in the Extremely Low to Borderline range. His visual memory recall was severely impaired (Extremely Low). There was clear evidence of executive dysfunction on assessment. His perceptual and verbal abstract reasoning skills and divided attention were all severely impaired (Extremely Low).There was clear evidence of executive dysfunction on assessment. His perceptual and verbal abstract reasoning skills and divided attention were all severely impaired (Extremely Low). His ability to engage in unstructured idea generation was also below expectation (Borderline). Mr Mannion’s planning and organising skills, ability to focus his attention, and semantic verbal fluency were intact (Low Average to Average).

Mr Mannion performed well below expectation on multiple tests and this neuropsychological assessment confirms that he has an Acquired Brain Injury (ABI) due to his history of epilepsy since the age of 14 resulting in grand mal seizures. His methamphetamine use and diabetes mellitus may also have contributed to his cognitive impairments seen on assessment.’

39.Dr Treeby said that it was his impression that your acquired brain injury and those specific cognitive impairments that he identified played some role in the offending behaviour. He said, due to the severe degree of concreteness in your verbal thought processes, you are likely to encounter difficulties when you are required to logically reason, negotiate and communicate effectively with others. He went onto say,

'Mr Mannion's severely impaired problem-solving skills and poor ability to engage in consequential thinking appear to be evident in his offending behaviour.’ At interview, Mr Mannion indicated he became increasingly frustrated and angry at the victim.’

40.And it is in that context that he quotes you expressing your concerns about Mr Tournier, in the terms that I have already quoted.

41.Dr Treeby went on to say this,

'When pressed Mr Mannion was unable to spontaneously generate any more adaptive strategies to resolve his workmanship disputes with the victim. It is also in that context that he quotes you saying that you didn't foresee the house catching fire.’

42.Whilst I accept Dr Treeby's findings in relation to the deficits in brain and cognitive functioning, I do not accept his conclusion that there is a connection between those deficits and the offending. The parts of the report that I have just quoted are applying his findings in respect of your cognitive deficits to the offending behaviour based on the version of events given by you which are different, as I have noted, from those in the prosecution summary and are also at odds with your guilty plea in respect of the conduct endangering life charge.

43.Insofar as you sought to advance an alternative account of the nature and extent of the shortcomings of the works, the financial loss suffered by you and your lack of anticipation or expectation that the house would be set on fire as mitigatory factors, I am not satisfied that those have been established to my satisfaction on the balance of probabilities. It follows therefore that the factual foundation for Dr Treeby's opinion that your moral culpability is reduced by reason of a connection between your impaired brain functioning and the commission of the offence, has not been established. In fact, on the evidence before me, there was clear evidence of a capacity to plan and a capacity to control your impulses, as evidenced by the work taken to build and plant the incendiary device. A capacity to have consequential thinking, that is to carry the incendiary device from your home in your car the considerable distance to the Tournier/Mann family home in Torquay, to place it under the car, having identified the car, and noted that it was parked close to the house. And then in the lies you told when interviewed by the police and the rather elaborate story you told in the attempt to establish the false alibi.

44.Mr Lawrence submitted that, even if the evidence supported no higher a finding than that you had a subjective irrational or unfounded belief that the works were deficient in the ways you asserted and a subjective irrational or unfounded belief that you suffered financial detriment because half the money paid by your mother would be offset against your half interest, that Verdins[1] would nonetheless apply to reduce your moral culpability. If that is so, and I am not sure it is right, the impact on lessening your moral culpability is, in my view, very low. In my view it is appropriate though to take your acquired brain injury into account in a general sense, as reducing, to some degree, the weight to be given to general deterrence because you have an acquired brain injury and to that extent you should not be used completely as a vehicle for making an example to others and I do not do so.

[1]R v Verdins; Buckley; Vo (2007) 16 VR 269

45.I do accept the opinion of Dr Treeby that imprisonment will be more onerous for you, because of the particular deficits in cognitive and intellectual functioning that he has identified and I do reduce the sentence by reason of that, in accordance with limbs 5 and 6 of Verdins. I also take into account the opinions of both Dr Treeby and Ms Mynard, that you have a history of lowered mood and, at the time of the assessments by each of them you were suffering or exhibiting symptoms of depression and anxiety. The assessment tools used by both of them were, of course snapshot tools designed to assess your symptoms in the two weeks or so prior to the assessments. And one must take into account, as well as the symptoms that you described, the fact that you were being assessed for the purposes of sentencing and understood that you were facing a significant term of imprisonment as a result of your conduct.

46.I am not satisfied on the materials that depression or anxiety played any role in your decision making to commit these offences, so as to operate to reduce your moral culpability and bring any of the earlier limbs of Verdins into play. But I do accept that you are presently exhibiting symptoms of depression and anxiety and that, as with so many people coming up for sentencing for serious offences and so many people serving sentences, this makes imprisonment more onerous than it is for those who appear to be able to face their fate with more equanimity. I accept that imprisonment therefore will be more burdensome for you by reason of that, and I take that into account in reducing the sentence otherwise appropriate.

47.Also counting in your favour is that fact that you pleaded guilty and did so at an early stage. That, in my view, carries considerable weight not only by reason of the early stage of which the guilty pleas were advanced, but also because the victims were, as a result, spared the ordeal of reliving the events and having to recount them at trial. It is some vindication for them and some acknowledgment that they are in fact, innocent victims of shocking callousness. Although both Dr Treeby and Ms Mynard said that you had given limited expressions of remorse and both of them said that your verbal and other deficits made it difficult for you to articulate your feelings, it is noteworthy that the statements that they relied on as evidence of that limited expression of remorse were essentially concerned with a denial of the elements or the reckless conduct endangering life charge and therefore I must take into account the fact that your counsel expressly acknowledges that you understand the elements of the offence to which you have pleaded guilty and accept that that that was your relevant state of mind. The evidence of remorse is very limited.

48.It is clear from what I have said to date that I have relied much more heavily on the report of Dr Treeby than that of Ms Mynard. When the matter was first before me, I expressed my concerns about the shortcomings in Ms Mynard's report. It was in large part as a result of that, that the plea was adjourned to allow for the commission of a report, that complied with the Practice Note in relation to the provision of Psychological and Psychiatric reports for the purposes of pleas, in particular, to allow for the conducting of appropriate tests, to review the primary medical records in relation to your epilepsy and to ensure that any opinions about an acquired brain injury, depression or anxiety were based on sound evidence, not on self-report or a screening test.

49.It is a pity that, even after that, despite the quality of the tests conducted by
Dr Treeby in respect of the acquired brain injury and the careful detailing of the deficits that you suffer, no attempt was made in his report to reconcile the history given by you with the prosecution summary and the admitted charges, that is, the elements of the offence particularly in relation to Charge 2. And that much of the factual foundation for the application of the deficits to the circumstances, is as a result flawed because Dr Treeby did not either speak to you about the difference between the prosecution summary or seek to reconcile his opinion with the prosecution account.

50.Coming back briefly to the relevance of opinions about remorse. Absence of remorse is not an aggravating factor. It is important to note that it simply is an absence of a fact which otherwise could count affirmatively in your favour when assessing your prospects of rehabilitation. Although the expressions of remorse or regret for what happened that were relied on as expressions of remorse were integrally tied up with a denial of the elements of the second charge, I accept that you are sorry now for what happened and I take that as an expression of remorse and take that into account in your favour.

51.Overall I consider your prospects for rehabilitation are best described as guarded. The deficits identified by Dr Treeby mean that you have limited problem-solving skills, poor impulse control and a limited ability to engage in consequential reasoning. These are deficits, he noted, which are permanent. So although I don't find they have any significance in establishing a causal connection to the offending, they are clearly deficits that you carry and are of concern in working out therefore, your prospects for rehabilitation.

52.Also counting in your favour, are the reports that you have been substance-free in the two years since being charged. If, on release you can maintain abstinence from amphetamines, your prospects for rehabilitation generally and specifically, holding down and maintaining meaningful employment and for returning to pro-social, not criminal circles would improve. I have structured the sentence to allow for a considerable gap between the head sentence and non-parole period, taking into account the limitations imposed on you by your acquired brain injury and the need for you to be provided with assistance and support for your re-integration into the community and engaging in pro-social behaviour.

53.I have also taken into account, in structuring the sentence, of course, the maximum sentence for the two charges. Arson is punishable by a maximum sentence of 15 years' imprisonment and reckless conduct endangering life, a maximum of 10 years' imprisonment. I must be careful as both counsel pointed out in the course of the plea, not to treat as an aggravating feature of the arson offence, that you did endanger the lives of Mr Tournier, Ms Mann and their child, because that is the second offence and I must avoid double punishment. I have therefore, sought to, in my reasoning, remove any weight been given to the endangering of the lives of Mr Tournier, Ms Mann and their child, from the arson charge and confine the assessment of your moral culpability and the objective gravity of the arson offence, by reference to the setting of the fire bomb under the car and the setting alight of the car and the consequential burning of the house.

54.So far as the reckless conduct endangering life, I take into account the time of night, the fact that it was in the early hours of Christmas morning, your awareness that the car in the driveway was Mr Tournier’s or the Tournier family car and that its being parked in the driveway meant that it was highly likely the family were at home and asleep. The fact that it was a car parked so close to a weatherboard house and your knowledge of the family constellation are relevant factors to the assessment of the objective gravity of the offence of reckless conduct endangering life and your moral culpability in respect of that.

55.It follows from that, in the sentence I have fixed on for the individual offences, the relationship of the conduct endangering life is of a different proportion to the maximum sentence, than the sentence I have fixed on for the arson. That is to reflect the different findings that I have made in respect of the objective gravity and the moral culpability. Having fixed on the sentences I think are appropriate individual sentences, I have also allowed for a significant level of concurrency between the two sentences to reflect the fact that this is part of an overall episode and so the totality, the total effective sentence or the overall sentence, reflects those factors of the setting of fire in those circumstances and the endangerment of the life of that family of three people.

56.Can you now please stand Mr Mannion. Sean Mannion on the two charges to which you have pleaded guilty, you are convicted. On Charge 1 of arson, you are sentenced to be imprisoned for a period of five years. On Charge 2 of conduct endangering life, the lives of the three people, you are sentenced to be imprisoned for a period of five years. I declare that two years of the sentence on Charge 2, be served cumulatively on the sentence on Charge 1. That makes a total effective sentence of seven years and I fix a non-parole period of four years and six months. I declare that you have spent 85 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. And I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a term of imprisonment of 10 years and fixed a period of eight years as the time to serve before being eligible for parole. Are the sentences that I declared consistent with what I said, the arithmetic right?

57.MS THORP:  Yes.

58.HER HONOUR:  Any further orders required to be made?

59.MS THORP:  No your Honour.

60.HER HONOUR:  I've made the 464ZF.  Thank you, can you remove Mr Mannion please?

61.MS MAWBY:  Sorry your Honour, just in relation to the - - -

62.HER HONOUR:  I'm sorry, just wait a moment.

63.MS MAWBY:  Sorry, in relation to the issue of compensation?

64.HER HONOUR:  I was told that his compensation application has – the prosecution one was not being pursued, that there would be – that would be pursued under the sentencing – under s.85, I think it's got to be done within six months, doesn't it, of conviction?

65.MS THORP:  We just need to set a date for that to happen?

66.HER HONOUR:  Yes.  Do you want to set a date now, or do you want to arrange that administratively with my associate?

67.MS MAWBY:  Perhaps administratively, might be better Your Honour. 
Thank you.

68.HER HONOUR:  Yes, all right, we'll do that, thank you.

69.MS MAWBY:  Thank you Your Honour.

70.HER HONOUR:  Thank you, can you remove Mr Mannion please.  Adjourn please.

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