Director of Public Prosecutions v Pilling

[2024] VCC 574

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR-23-01264 & 01327

Indictment No. N10345724 &N10555083

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN PILLING

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Geelong
DATE OF HEARING:	2 May 2024
DATE OF SENTENCE:	3 May 2024
CASE MAY BE CITED AS:	DPP v Pilling
MEDIUM NEUTRAL CITATION:	[2024] VCC 574

REASONS FOR SENTENCE

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Catchwords:  Arson (x2); $167,000 damage to Director of Housing unit in September 2021 and $116,000 damage to Director of Housing unit in March 2023; 42-45 years old at time of offence, 46 years of age at time of sentence. Short very dated criminal history; Guilty plea; Worboyes v The Queen [2021]; remorse; serious mental illness but not enlivening R v Verdins [2007] VSCA 102 (‘Verdins’)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Grant	Office of Public Prosecutions
For the Accused	Mr J Connolly	Victoria Legal Aid

HIS HONOUR

1Allan James Pilling, you have pleaded guilty to two charges of arson. The crime of arson is punishable by a 15-year maximum prison term. The serious offender provisions will come into play as it is conceded by your counsel that a prison term is required for each of the single charges on the two indictments file before me.

2You have admitted a short and very dated criminal history of no relevance to my task.

3The prosecutor Mr Grant opened this matter to me yesterday in accordance with a written summary of prosecution opening for plea dated 24 April 2024. That document was marked as Exhibit A. This was an agreed summary and as such there is really no point in my setting out all of those facts in these my reasons. The agreed summary does that and I will sentence pursuant to it together with the photographs showing the extent of damage. Also the matter which I raised in the course of the plea as to the need to rouse the neighbouring residents at the scene of the first fire.

4I will give only then a very brief of summary so that my reasons and the ultimate sentence might be understood by anyone who happens to accesses these sentencing remarks.

5By way then of very brief summary, at the time of the first arson in November 2021 you were living at a Director of Housing property at unit 1/19 Churchill Avenue, Newtown. Police had been called to attend the vicinity on the evening of 17 September in relation to the report of a possible assault upon your partner. I make plain to you I am not sentencing you for any such allegation. In fact the police spoke to your then partner but could not really get too much sense out of her. A short time later they attended at your premises, and they entered and found you within. You were standoffish and did not engage with the police and they left at about 10:54 pm.

6One of your neighbours saw you open a window a short time later and not exit. Then she saw you exit the property wheeling a black suitcase and that exit was followed closely by her observation of a fire in your unit. It was around 11:00 pm.

7Police were called as well as fire services who attended and brought the fire under control. This was a fire in a duplex unit setting where other property was threatened and others had to be evacuated late into the night. One occupant was in bed. I referred to that issue which was referred to in the depositions at page 37 so that your counsel would have the opportunity of addressing me on that topic, which had after all been flagged in the Crown written sentencing submissions. It was not in any way contentious.

8You were arrested the next day but were not fit for interview and you were released without interview.

9That blaze caused substantial damage as the summary and the photographs disclose. The repair cost estimate document refers to a cost of $167,000.

10An expert located two seats of fire with no accidental cause implicated.

11Skipping ahead then to March 2023, at that stage you were living at a different Director of Housing property, this one at 1/19 Explorer Court, Whittington. Police were called to that property earlier in the day on 14 March in relation to a fire at the rear of the yard. You were approached and were not making much sense. It was not clear if to that point any offence had been committed and I interpose I am not dealing with you for that earlier fire. However later that night, a fire engulfed the roof of the unit. Police and firefighters attended and that fire was put out. You were arrested nearby in a confused state. You were mumbling to yourself on the footpath. You made some broad admissions to having knowledge of the existence of some sort of fire and you were taken to hospital and then back to the police station. Again though, you were not fit to be interviewed.

12An examination of those damaged premises found a number of seats of fire with no evidence of electrical fault or accidental combustion. The total damage was to the tune of $116,000.

13The agreed summary sets out a chronology of the matter before the court. It was perhaps a strange decision for your legal team to apply for you to be discharged at committal owing to the lack of evidence as to the property ‘belonging to another’. Plainly it was property not belonging to you and hence belonging to another and the objection to the formal evidence being allowed in on an application to re-open the prosecution case was perhaps a ‘bit cute’, to use the expression volunteered yesterday by Mr Connolly. Anyway, that is what happened and it really matters not one jot. It was your right to run that committal and his right to make that submission, be it cute or otherwise. You were discharged and that ruling is attached within the depositions. Very predictably of course, you were then directly indicted on that matter.

14Regrettably though, that is the setting for the second fire, for within eight days of being discharged by a court in relation to that first fire, one you now admit having lit, you then committed the second arson. The matters settled swiftly upon arriving in this court in late August last year.

15You had been in custody for 415 days up to but not including the date of the plea conducted yesterday so of course we must add another day then to that total. 

16So much then for what really is only a brief summary of the agreed summary in this matter. As I have already said, I will sentence pursuant to the more detailed agreed summary dated 24 April 2024.

In mitigation

17Mr Connolly conducted the very detailed plea in mitigation on your behalf yesterday and he relied upon an outline of submissions dated 1 May 2024. He was very well prepared indeed and that showed in the presentation of the plea, and for that matter, in his written submissions which were of a very high quality. He relied upon a host of other written materials including the expert report from Dr Darjee, a bundle of course completion certificates as well as miscellaneous contemporaneous documents relating to your mental health state either before or after the offending or since being remanded in custody. There were documents from Barwon Health care and also from Justice Health. 

18Either by reference to the written material or in oral submissions made to me, the court was informed as to your family and educational and work, drug use, relationship and mental health history. He did take me to some of the contemporaneous material relating to your mental health state and statements from those supporting you in the lead in to the offending as well as after the offending. Some of that material was referred to in the expert report of Dr Darjee placed before me. I do not intend to descend to the detail of all of that material in these my reasons. That which was relied upon was referred to either in the oral or written submissions. It is not my task to wade through such material as that in relation to matters that have not been raised directly. 

19Mr Connolly made some submissions to the court as to the level of objective gravity of the offending, the apparent lack of motivation of the offending and also the relevant sentencing purposes in play here. He made some submissions as to your prospects of rehabilitation and paid particular regard to the positive way you had engaged in the period whilst on remand. So the matters evident from the Justice Health materials and from Dr Darjee’s report as well as the course certificates place before me.

20In the excellent and comprehensive plea conducted on your behalf, Mr Connolly relied principally upon the following matters in mitigation:

·     your early guilty plea with some heightened benefit owing to the global pandemic backlog, (Worboyes[1]);

·     the presence of some remorse to be implied from your plea; and

·     the absence of any particularly relevant criminal history and the large gap from your past offending, as well as your present attitude in custody suggestive of someone who had a developing insight into the use of illegal drugs.

[1]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)

21He conceded though that the offending was serious, that a prison term was required for each charge and that hence the Serious Offender provisions would be engaged in relation to the second sentence. He was arguing for a combination type order with a term of imprisonment with your ultimate release onto a suitably conditioned community correction order as the release mechanism. Failing that of course, a head sentence and a non-parole period. It was a matter of which would best protect the community and also best provide for your ongoing rehabilitation. In terms of the combination type sentence, he was not for one moment suggesting that you would be released immediately or even imminently. There was a recognition of the need for a more substantial prison component than was represented by your then current pre-sentence detention which stood yesterday at 415 days. His written submission specified the availability of a sentence of imprisonment of up to 780 days which allowed for a period of 12 months beyond your existing pre-sentence detention. He varied his submission to allow for a period of greater than 12 months over and above your pre-sentence detention, as that 12 month limit was not operative here owing to s44(1). That 12 month ceiling existing as to the readiness to start a community correction order is exempted for many crimes including the crime of arson.

22I should say though that neither of those submissions was a submission by him as to the precise sentence that ought be imposed. Rather the potential or at least the available prison sentences which could still lawfully exist in combination with a community correction order.

Prosecution

23The prosecution had prepared some detailed sentencing submissions dated 1 May of this year. Those submissions dealt with the crime of arson generally as well as to the matters in aggravation and mitigation in this case. The submissions were generally uncontroversial and so I see no need to repeat them all in my reasons. The Crown also placed a table of cases before me though were not suggesting that any of those cases was on all fours. In fact, they were merely sentencing decisions of Judges of this court and not dealing with matters or principle. Those sorts of things are of very limited use and indeed I am well familiar with the sentencing practices for the crime of arson.

24The Director of Public Prosecutions through Mr Grant was arguing that a term of imprisonment was required in this case. Well there was no controversy there as so much had been conceded. The principal submission seemed to me that a head sentence and a non-parole period was warranted. However, owing to those provisions in the Sentencing Act removing the normal ceiling on the prison component of a combination type sentence when dealing with the crime of arson, they accepted that a prison sentence and community correction order could be open to the court. They raised some of the difficulties of such an order in that it would not be taking effect for some time, matters that I had raised myself in discussion with Mr Connolly.

25In any event I am not bound by submissions made as to sentence by either of the parties. I am exercising a sentencing discretion and I have to reach my own view as to the appropriate sentence in this case.

26I will come back later in these reasons to consider the various submissions made by the parties.

Background

27I want to turn firstly though and quite and briefly to your personal background. I do this relatively briefly as I really have no reason not to accept that the submissions and material placed before me as to that personal background. I do accept it so I see no need simply to repeat it all in my reasons.

28By way of very brief summary and that is all it is, you were born in March 1978 and you are now 46 years old. You were raised by your parents who are both still alive and in their 70s. There has been some disconnection from them from time to time over the years though I understand from the expert report that you are back in communication with them. You were one of four children and I was told that your two brothers and sister have forged careers and have had no issues with drugs or mental health. You on the other hand were not strong academically, hung out with the wrong crowd and you used illegal drugs from a young age. Illegal drugs have been massively problematic for you over many years. You completed Year 12 and you have had a quite patchy employment record with no work for a few years now. You have been on the disability support benefit or pension. You have had a couple of long-term relationships which are spoken of in that expert report but no children from either of those relationships. I mentioned already that illegal drugs have been very problematic. That in the setting of one with your diagnosed mental health condition. You have been diagnosed with schizophrenia. It is a long-term diagnosis, but it is plain from the materials that failure to take the prescribed medication and your preparedness to use illegal drugs has caused real problems over the years. With the exception of these two offences however, such erosion of your functioning as has no doubt been brought about by illegal drug use or medication non-compliance has not translated in the past into criminal offending, which is at least something. You have had periods where you have had few supports in the community and I infer there have been some issues in terms of stable housing from time to time. Setting fire to two established units was not helpful to your cause obviously enough. There is a significant focus or at least mention of drug-induced psychosis in the report placed before me but the opinion of the expert is that your actual mental illness is not directly implicated in this offending. Illegal drugs, disinhibition and impulsiveness and compromised functioning arising from drug use and that is drug use by one with your underlying mental illness is very heavily implicated. That is however not mitigatory.

29You do seem to have stabilised in prison and you are making the right noises as to maintaining abstinence from illegal drugs and complying with your prescribed medication but no doubt those insightful noises have been made previously. You have however done a range of courses and programs whilst in custody not limited just to those where certificates have been provided. The test will come upon your ultimate release when you yet again will have ready access to illegal drugs should you choose to use them, as you have for more than 25 years. However, I do accept that you have continued to take your medication and you have abstained from drug use for a significant period in custody. That is a positive, obviously enough. I am told by Mr Connolly that you are committed to that approach upon your release but as I have said, only time will tell if you can live up to that commitment. Hopefully you can. The fact is your life is hard enough with a serious mental illness. You have no control over that condition. It exists. You do though have control as to having a stable mental health state because that condition is quite stable when dealt with by your prescribed medication. Illegal drug use is a disastrous and unnecessary complication for one such as you.

30You have a criminal history before the courts. That history includes four instances of armed robbery dealt with in this court back in the late 1990s. The history is short and it is in fact very dated with the last appearance in 2004. It has really no real relevance to my task. I do note there is no history of similar offending as this. I mentioned already that an unusual aspect of this case is the absence of offending for a very significant period. Illegal drug use or medication non-compliance when that state of affairs has existed, has not translated in the past into criminal offending which is a positive. It suggests to me that you are not inherently bad or antisocial or criminally disposed.

Guilty plea

31I turn now to the other matters that have been raised on the plea. Firstly the fact and the stage of your guilty plea. I will treat it as an early plea. I must not hold against you the conduct of the two committals. They were conducted and witnesses were called. That is just a fact.

32You have taken what I will treat as early responsibility for your crimes by pleading guilty when you did.

33As a result of your guilty plea, the time, cost and the effort of a jury trial in this court has all been avoided. No witnesses have been required to give evidence in this court though of course witnesses were called in the court below. It was your right to conduct those proceedings and I am sure an aspect of that was testing the forensic or expert evidence in a setting where you probably had very little, if any, recall of the offending itself.

34What is important is that you have facilitated the course of justice and you must be rewarded for doing so.

35The matter settled in late August of last year at a stage when the backlog in this court was well and truly being brought under control. It had not however been entirely cleared.

36I believe we are close to the point in time now, if not beyond that point, where any future decision to plead guilty will not be met by any heightened sentencing benefit derived from the case of Worboyes and those subsequent cases applying that decision, some of which are referred to in Mr Connolly’s submissions. The fact is we have now moved beyond the global pandemic. The pandemic backlog in this court has now actually been cleared. We are operating in this court at pre-pandemic levels as the Chief Judge announced to the profession in October last year. However, Mr Connolly emphasised that this case settled before that announcement. I do accept that and his submission that it is appropriate to give some heightened benefit to your guilty plea in line with the principles derived from Worboyes. So I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that decision.

37I take these various matters into account in mitigation. 

Remorse

38Your counsel suggested that the aspect of remorse was vexing in this case. Though a guilty plea can be indicative of remorse, here of course, I have your confused and confusing statements made to Dr Darjee. It is very hard to detect any remorse as you advance explanations for and excuses for and even denials of the offending. Your counsel was not suggesting that there are any expressions of genuine remorse to be found in the materials. Notwithstanding that though, you have pleaded guilty and, in a setting, where you probably do not have at your disposal any true understanding of the motivation or even any unclouded recollection of the acts themselves. Nonetheless you are still prepared to accept responsibility by your plea. There are some who would not. So having considered the matter overnight, I am prepared then to imply some remorse from your guilty plea and I take that into account in mitigation. 

Rehabilitation

39I turn then your prospects of rehabilitation. As to your future rehabilitation, no doubt that will be to a large extent determined by whether you can abstain from illegal drug use, maintain appropriate mental health treatment and adhere to your medication regime. I am sure other things will come into play including things such as stable housing and support in the community either by family or others, as well as the potential protective aspect of employment. If you cannot abstain from illegal drugs or go off your prescribed medication then plainly your risk of re offence will rise. After all, drug use was very heavily implicated in this offending. It is plain then that your prospects will improve very sizeably if you can abstain from illegal drugs. You seem to have that insight at this point, though of course you have had it in the past. There are references in some of the contemporaneous materials as to your recognition of the serious impact of illegal drugs upon your state of mental health. I am not raising that as in any way being a matter in aggravation here in relation to this offending. It is not. It just shows that you have continued to use drugs in the past even when you had an insight into the serious impact of illegal drugs upon your mental health state. I do note however that you have been in adult custody for the first time and for a decent period already, and surely that has given you good reason to think perhaps more deeply as to what the future holds in this respect. This did not involve just deterioration of your mental state as has no doubt happened before. It led to serious offending and offending that has caused you to wind up in an adult prison. You have done courses and programs and you look to the future with, at this point, a degree of insight. I note the matters referred to in paragraphs 29-34 of the outline.

40It is hard not to be relatively guarded at this point. The current setting is artificial in that you are in a prison setting. Your counsel submitted that your prospects were neither great nor bad. That is probably a fair statement I think. I do note that there is nothing similar in your past history and the very large gap that I have spoken of from your last offence brought before the court. Having considered the materials including the expert report and that risk assessment within that report, I believe that you do have reasonable prospects of rehabilitation. There is obviously a risk of re offence and that is most likely to arise if you use illegal drugs upon your ultimate release or absent yourself from mental health treatment or abstain from prescribed medication or any or all of the above. As is surely plain, Illegal drugs are a dangerous thing to use for one with a serious mental health condition such as yours. That much is spelt out very directly by Dr Darjee.

41I have mentioned that report and I remarked in the course of the plea that I regarded it as being a report of very high quality. Often enough we see very ordinary reports placed before the courts, either from psychologists or psychiatrists for that matter. This was not one falling in that category. Your mental health condition is something I can have regard to in a general way and I do. It has not made your life easy. No doubt it has had a role to play in the faltering trajectory of your life. It is after all, a serious mental illness. You are on a disability support benefit. However, it can be reasonably well controlled and it does not lie at the very heart of these crimes. It is in the background to an extent. Drug use does lie at the heart of the offending, that is drug use in the context of someone with schizophrenia and that is not mitigatory, as is readily conceded. The principles from the case of Verdins[2] have no real application to my task as was explicitly conceded by Mr Connolly. Your mental illness whilst I can take it into account in a general fashion, does not reduce your culpability for these offences. There is no realistic connection and no basis to reduce the weight to be given to specific or general deterrence and no reason at all to think that prison represents a harsher burden upon you or is likely to lead to any deterioration in your condition. These are the conclusions to be drawn from the expert report. I see no need to descend further to the detail of that report. I do take it into account and though there is no Verdins reduction in play here, your illness is still something that I do pay regard to in a mitigatory fashion. It does intersect with the drug use. I note also from that report that you are not suffering from any condition connected with some fascination as to fires or the like and so that plays into the reduction of your future risk. I also note the report by him of your insightful statements as to the need to take your prescribed medication and the potential harm of taking illegal drugs. I am told that is your present mindset. If you lapse in either regard upon your release, well your risk of relapse and hence risk of offending will plainly rise. It seems clear that your illness is largely manageable if you take the right steps. You must take them in the future. You must abstain from illegal drug use, that much is very plain.

The Offences

[2]R v Verdins [2007] VSCA 102 (‘Verdins’)

42The agreed summary describes your offending and I do not see any point in repeating the agreed facts. This was undoubtedly serious offending. Your counsel accepts that that is so. Arson can cover damage to a large range of property. It can, as one of the cases suggests, span damage to a book or to a mansion. The property and value of damage can vary. So too any risk posed by a fire. The motivations can and do vary.

43Well this was not a calculated arson to obtain some financial gain, for instance by way of a false insurance claim. It was not arson targeting or venting anger at a property owner, for instance getting ‘even’ after being evicted from a property as sometimes is the setting. Given the expert opinion of Dr Darjee, it was not arson linked directly to a mental illness or disturbance or psychological condition relating to some fascination with or focus upon fires, the sorts of things that would very obviously elevate future risk. Well that is not the position here. It was not arson designed to place people at risk or to drive home some criminal message as has been seen recently with the spate of fire bombings of commercial premises, or even residential premises linked to members of the criminal underworld. What was being gained by you setting fire to these units? The answer is nothing. You acted alone obviously and disinhibition or impulsiveness or eroded or compromised functioning derived primarily from drug use is directly implicated. You were plainly not in a good state at the time of either fire as the summary makes plain, but you brought that degraded state upon yourself by using illegal drugs. You were not fit to be interviewed. The summary itself and the report of the expert with some contemporaneous documentation shows how poorly you were travelling. So too the other materials filed by your counsel some of which are featured in his written submissions. I see no need to trawl my way through that material in my reasons. You were not functioning in the way that you would have been functioning had you not used illegal drugs. These fires most likely would not have occurred had you not used illegal drugs. That is the view of Dr Darjee at paragraph 73.

44Though by no means sophisticated offending, indeed there was a level of disorder and disturbance arising from your drug use, you did however set a number of fires and this was on two separate occasions. On one occasion, it is true that you left with a suitcase. It is not clear what was in that suitcase and given the other indicia of disorder and compromised functioning not enlivening the principles from Verdins, it strikes me as being a bit unfair to treat that suitcase and your exiting with it as speaking of ordered thought or calculation. I put the suitcase aside.

45I am not dealing with a damage to a book, and I am not dealing with damage to a mansion but this was significant property. These were units and units which would be a mansion to many who need housing. The damage was large and so too of course the cost of rectification with a total of over $280,000. Your offending removed that particular unit that was damaged by you from the pool of available housing in a climate where there is such a high demand for properties such as these for people in need. The first of the fires threatened the other unit in the duplex and required steps to be taken to evacuate residents late at night.

46These were by no stretch of the imagination minor examples of the crime of arson nor was your counsel suggesting that they were. In my judgment though, they are a long way removed from the most serious instances of the offence, owing to the absence of many features of aggravation that sometimes exist.

Purposes

47I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. I must give that purpose appropriate weight and as I have announced already, I believe your prospects are reasonable and they will be better still, if you remain drug-free. I certainly do not ignore rehabilitation but of course it is not the only purpose of sentencing.

48I have to give appropriate weight to the other purposes of sentencing.

49I am for instance required to punish you justly and proportionately. Punishment is an important enough sentencing purpose in this case.

50I must also denounce your conduct. Again, that is of importance.

51Community protection is another purpose of sentencing and one which I must adequately reflect. Indeed, for the sentence imposed on the second indictment charge, by that stage, you will fall to be sentenced as a serious arson offender and I must regard community protection as the principal purpose for which that sentence is imposed. I have the power in relation to that matter to pass a disproportionate sentence, but obviously I will not do that. Even for that matter where protection is the principal purpose of sentencing, I still must consider the actual risk and I believe if you can remain abstinent from illegal drugs and adhere to your medication, that your risk is actually quite low. After all there is that enormous gap in your criminal history.

52I must give adequate weight to specific deterrence, which relates to deterring you. I must deter you from ever doing this again. You have done it twice in the time frames covered by the indictment, so deterring you is not unimportant given the chronology of offending.

53General deterrence is also of real importance in this case. That purpose relates to the need to deter other future offenders and it must be given adequate weight in my sentencing task.

54We as judges must pass sentences which might cause those considering committing crimes such as yours to pause for thought and perhaps to reconsider their position and to turn away from the commission of crimes. We need to deter future like-minded offenders from senseless destruction of property.

55I have to pay regard to the impact of the crimes, of course as well as the maximum penalty. There is no impact material before me, but it is plain that two units went ‘off-line’ to those in need of housing until the damage was repaired. 

56I have to pay regard to current sentencing practices and I do. That is not a single controlling factor at all. I have looked at the statistical material on the Sentencing Advisory Council online site for the crime or arson. Statistical material has inherent limitations. I have looked at the Judicial College of Victoria online assortment of sentencing cases for the crime of arson, as well as the table of cases to which I was referred by the prosecutor, which was marked as part of Exhibit B.

57At the end of the day though, I am sentencing you for your crimes, these crimes, and that is not a mathematical or statistical task, or one where the outcome in this case is dictated by what has happened in those other cases or by the average outcomes or trends as disclosed in the statistical material.

58A court must never impose a sentence more severe than that which is required to achieve the sentencing purposes.

59Prison is always a disposition of last resort. It plainly is required here and so much is readily conceded by your counsel. I have considered the submission as to a prison term followed by your release onto a community correction order. I do not believe a combination type sentence is the appropriate outcome in this case. Though I have no limits in terms of the extent of the prison term able to be imposed in combination with a community correction order owing to section 44(1) of the Act, the fact is the supervision which may be open upon parole release in my view would provide far better protection to the community. Your counsel was not submitting that there could be any imminent release here. He was envisaging a sizeable enough period in prison over and above the existing pre‑sentence detention with your ultimate release onto a community correction order. In that sort of setting, I would be making a judgment today about an order that would not actually take effect for a sizeable enough period, doing so now really with no idea how you might present in three or six or 12 or 18 months from now. I have no idea what your attitude would be to such an order or anything as to your then state of mental health. Nothing about your then attitude to illegal drugs or where you would be living and with whom or the supports that would exist in place.

60I do know that non-compliance with a community correction order often takes many, many months to lead on to breach proceedings. Those proceedings when initiated then take many, many more months to reach this court. I believe that the stricter conditions available by way or parole release would offer far more by way of protection to the community. If conditions are breached, you can be taken back into custody almost immediately. Of course I can make no assumptions as to your getting parole. That will be for the Adult Parole Board to determine and has nothing to do with me. My obligation will be to fix a non-parole period given the duration of the sentence that I will soon be imposing. I am required to fix a non-parole period and I work on the assumption, as I must, that you will serve every day of the head sentence I will soon impose. I will provide these reasons to the Adult Parole Board.

Totality

61I take into account the principle of totality of sentence, and I have taken a last look at the overall effect of the sentences passed by me. Quite aside from the serious offender provisions which remove the presumption of concurrency, there would have been a clear need to order a level of cumulation here. These were two quite separate serious crimes occurring at very different times and damaging quite separate properties. I have the presumption of cumulation when dealing with the second matter by virtue of s6E of the Sentencing Act. That provision which removes that presumption of concurrency does not however remove the need for me to consider totality of sentence. Totality is modified but it is still obviously very important.

62I am sorry to have taken so long to get to this point. I will pass sentence now. If you would stand up please.

Indictment N10345724

63On the first of the indictments, Indictment N10345724, that indictment charge relates to that first fire that you lit. It caused more significant damage. On that charge, I convict and sentence you to 26 months or two years 2 months' imprisonment.

64That is the only sentence imposed on that indictment hence it is the total effective sentence on that indictment.

Indictment P10555083

65On the second indictment, P10555083, relating to the charge of arson at Whittington, so the second charge of arson, on that matter you fall to be sentenced as a serious arson offender.

66On that single charge on that indictment, I convict and sentence you to 19 months' imprisonment. So again, that is the only sentence on that indictment, therefore it is the total effective sentence on that indictment.

Relationship between indictments

67As you have been sentenced as a serious arson offender on that second indictment charge, I must spell out the extent of concurrency in relation to that second indictment sentence. I direct that 11 months of that sentence imposed on that second indictment will be served concurrently with the sentence imposed on the earlier indictment. So that is the extent to which I otherwise direct concurrency under s6E. That will mean nothing to you but this order produces eight months' cumulation.

68The global total effective sentence then as between these two indictments is therefore two years and 10 months' imprisonment or 34 months' imprisonment.

Non-Parole Period re: the Global Total Effective Sentence

69I fix a period of 18 months during which you will not be eligible for release on parole.

70You have already served 416 days of that sentence by way of pre‑sentence detention which will be entered into the records of the court pursuant s18 of the Sentencing Act.

Serious arson offender

71You have been sentenced as a serious arson offender in relation to Charge 1 on Indictment P10555083 and that fact will be entered into the records of the court.

Section 6AAA.

72Finally, I have told you that I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these two offences following a trial before a jury, I would have convicted and sentenced you to four years two months' imprisonment. I would have fixed a non‑parole period in that setting of two years and 10 months.

73Just grab a seat there for a moment, I will see if there is anything that I have overlooked. 

74Is there anything else at all?

75MR GRANT:  No thank you, Your Honour

76MR CONNOLLY:  Not from me, Your Honour.

77HIS HONOUR:  All right well look I'll get these remarks back in due course when I revise them generally on the day that I get them back and make them available to the parties. You'll have a discussion with your client about what's occurred here today and his rights in relation to his sentence Mr Connolly?

78MR CONNOLLY:  Yes, yes.

79HIS HONOUR:  You'll do that today (indistinct)?

80MR CONNOLLY:  I will. 

81HIS HONOUR:  Yes all right.  Thank you very much. Thank you, that completes the matter then, Mr Pilling, so Mr Connolly will come out and have a chat to you about what's occurred here today and your rights in relation to this sentence. So he'll come out and see you shortly so that completes the matter. So Mr Pilling can be removed at this stage. Thank you.

82COUNSEL:  As Your Honour pleases.

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