DPP v Sokaluk
[2013] VSCA 48
•7 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0118
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| BRENDAN JAMES SOKALUK | Respondent |
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| JUDGES | MAXWELL P, NEAVE JA and KAYE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 February 2013 |
| DATE OF JUDGMENT | 7 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 48 |
| JUDGMENT APPEALED FROM | R v Sokaluk [2012] VSC 167 (Coghlan J) |
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SENTENCING – Director’s appeal – Ten counts of arson causing death – Intellectually disabled offender – Whether too much weight given to intellectual disability – Whether sentence gave adequate weight to community protection – Total effective sentence of 17 years 9 months with a non-parole period of 14 years not manifestly inadequate – Sentencing Act 1991 (Vic) s 6F – R v Verdins (2007) 16 VR 269 – Muldrockv The Queen (2011) 244 CLR 120 – R v Mooney (Unreported, Supreme Court of Victoria, Young CJ, Lush, Jenkinson JJ, 21 July 1978) – R v Anderson [1981] VR 155 – R v Engert (1995) 84 A Crim R 67.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr T Gyorffy SC with Mr N A Hutton | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Ms J A Dixon SC with Mr J D Williams | Victorian Legal Aid |
MAXWELL P
NEAVE JA
KAYE AJA:
Summary
On 7 February 2009 (Black Saturday) a terrible bushfire spread across the Latrobe Valley. Ten people died while they were fleeing the fire or defending their property.[1] The fire, which also caused enormous economic loss, was deliberately lit by the respondent, Brendan James Sokaluk, an intellectually disabled man with an autism spectrum disorder, whose mental condition was not diagnosed prior to the commission of these offences.
[1]The death toll for the Black Saturday fires was higher, but Mr Sokaluk was charged in relation to the deaths of 10 people.
Mr Sokaluk was convicted by a Supreme Court jury on 10 charges of arson causing death, and was sentenced to a total effective sentence of 17 years and nine months’ imprisonment, with a non-parole period of 14 years.[2] On charges 2 to 10, he was sentenced as a serious arson offender under s 6F of the Sentencing Act 1991 (Vic).
[2]On 27 April 2012.
The Director of Public Prosecutions (‘Director’) now appeals against the individual sentences and total effective sentence imposed on the respondent, on the basis that the sentences are manifestly inadequate. That manifest inadequacy was said to have arisen because the learned sentencing judge gave insufficient weight to the gravity of the offending and to the need to protect the community against the respondent.
For the reasons which follow we would dismiss the appeal. When an offender causes a terrible event such as a bushfire, members of the affected community and the relatives of those who died often consider that only a very high sentence can adequately recognise the gravity of the offending. The gravity of the offences is a very important sentencing consideration. But our law does not treat an offender with an intellectual disability or other mental impairment in the same way as an offender who does not have such a disability. Sentencing principles require the court to consider the offender’s mental condition for a number of purposes, including determination of the effect which his or her mental condition had on his or her moral culpability. Thus the sentencing judge had to strike a difficult balance between taking account of the mitigating effect of Mr Sokaluk’s intellectual disability and autism spectrum disorder and giving weight to the appalling consequences of the respondent’s arson. In our view, the sentences imposed after weighing these factors fell within the reasonable exercise of the judge’s sentencing discretion.
Background
7 February 2009 was a day of intense heat and strong winds. A total fire ban had been declared. The wind was very strong, the country was dry and at 4.00pm the temperature reached 46.3 degrees.
The respondent lit the fire at about 1.30pm, apparently with the intention of burning a eucalypt plantation. The case against him was left to the jury on the basis that there may have been only one ignition point. However, his Honour was satisfied beyond reasonable doubt that the fire was lit at two separate places close to an intersection and the respondent was sentenced on that basis.[3]
[3]R v Brendan Sokaluk [2012] VSC 167 (Coghlan J) (‘Reasons’), [6].
The fire burned through the plantations and at about 6.00pm the strong north westerly wind changed to a south westerly. His Honour described what happened next as follows:
A few kilometres of fire front became 15 kilometres of fire front, with winds gusting up to 70 kilometres per hour. The fire spread rapidly towards the townships of Koornalla, Traralgon South, Jeeralang, Callignee and Callignee Upper, which were in the path of the fire and ultimately impacted by it.
The fire became known as the Churchill fire. This was Black Saturday. As a result of the fire, some 36,000 hectares were burnt, 156 homes and a community hall were destroyed. That total destruction is reckoned as part of the arson aspect of each of the ten offences for which [the respondent was] convicted.[4]
[4]Ibid [8], [28]−[29].
The respondent’s car was destroyed by the fire. Later that evening he made a claim on his insurance policy. Over the next few days he told others he had seen someone who might have been responsible for the fire and on 10 February 2009, he sent an email to Crime Stoppers, in which he claimed to have seen a Department of Sustainability and Environment fire fighter deliberately lighting the Churchill fire. He later admitted to police that he had done this so that he would not be blamed for the fire.
The respondent was interviewed by police on 12 and 13 February 2009. An independent third person was present at the interview, presumably because the police had some doubts about Mr Sokaluk’s mental capacity. The transcript of the first part of the interview indicates why they must have had these doubts. When asked by the police if he knew what a legal practitioner meant, the respondent replied, ‘A doctor’ and he was unable to tell the police the name for which his middle initial ‘J’ stood.
In his interview, the respondent said that he had accidentally started the fire when part of the cigarette he was smoking in his car fell to the floor. He said that he used a paper serviette to pick it up and threw it out of the car window, where it ignited. Very shortly afterwards he rang 000 and reported the fire.
His Honour described the way in which the 10 victims lost their lives as follows:
Charges 1 and 2 relate to the deaths of brothers David and Colin Gibson, who died while trying to defend their parents’ property at 420 Glendonald Road. They were caught as a result of the wind change between 6.00pm and 6.15pm when the property was totally destroyed.
Charge 3, Mrs Annette Leatham, died when trying to defend her daughter’s property on Cooks Road, Callignee. After the wind change, it was decided by all present that they should leave the property, but Mrs Leatham was trapped after her car broke down and she tried to return to the house.
Charges 4 and 5 relate to the deaths of Alfred Frendo and his younger son Scott at the home of Alfred Frendo and his wife at 320 Old Callignee Road, Callignee. Scott Frendo had come from Traralgon, where he lived, to assist defending the house, and he did that at about 4.00pm. After the wind change, Alfred and Scott Frendo tried to escape the fire; that was at about 6.50pm. Alfred Frendo was found in his burnt out 1990 Toyota Hilux about 1.5 kilometres from his home and the body of his son Scott was found near his own vehicle nearby.
Charge 6 related to Martin Schultz. Mr Schultz died when he was trying to drive to Traralgon from his home at 20 Factory Road, Callignee. He left his home at about 7.00pm. His body was found in his burnt out Holden utility in a creek bed just off Symons Road, Callignee, but more tragically, not until a week after the fire.
Charges 7, 8, 9 and 10 relate to the deaths of Allan and Miros Jacobs, their son Luke and Luke’s friend Nathan Charles. Luke and a group of his friends came to his parents’ house at 1594 Traralgon Creek Road, Koornalla during the afternoon to assist with preparation for defending the fire. Most of the group left and the four deceased remained at the house. At about 7.00pm, as a result of the wind change, the fire front came over the property. The Jacobs family and Nathan Charles took refuge in a concrete workshop under the house, but the fire was so intense that they were asphyxiated.[5]
[5]Ibid [31]–[35].
The lasting and traumatic effects of the deaths of these victims on their friends and families are set out in the 17 moving victim impact statements which were before the sentencing judge. As his Honour acknowledged, the suffering of those who lost their loved ones must inevitably have been ‘significantly increased from knowing that the fire which caused the death was deliberately lit’.[6]
[6]Ibid [41].
His Honour’s reasons
His Honour described the respondent’s offending as objectively ‘very serious’.[7] In particular, the day was, ‘perhaps our hottest day after a week of very hot weather. There had been a very long drought and the amount of dried material in the plantation was obvious’.[8] As the respondent had had some training in the Country Fire Authority, the judge concluded that he ‘must have known of the risk and potential damage of this fire’.[9]
[7]Ibid [38].
[8]Ibid.
[9]Ibid.
The judge summarised the evidence relating to the respondent’s mental condition.[10] He made specific reference to Dr Lester Walton’s report that the respondent was intellectually disabled to a ‘reasonably mild degree’ and quoted a passage from Dr Ogloff’s report which said that:
Mr Sokaluk meets the criteria for a diagnosis of Autism Spectrum Disorder. This disorder has affected his social and adaptive functioning all of his life. He does not meet the criteria for a diagnosis of a major mental illness or personality disorder at present, although he has been treated with medication in the community for depression and in prison for lowered mood and anxiety.
Whilst his overall level of intellectual functioning is in the borderline range, his verbal capacity is more limited and, in fact, falls in the intellectually disabled range. Conversely, his perceptual capabilities are much better, falling in the low average range. This suggests that while Mr Sokaluk has been able to hold a job, operate a motor vehicle, and live on his own own [sic], his level of intellectual reasoning and verbal comprehension is very impoverished. He has been dependent on his parents for maintaining his finances, cleaning his house, and providing him with meals. It takes him much longer to acquire information or to learn a task than would be the case for most others and his abstract reasoning capacity is very limited. His presentation, reasoning, receptive and expressive language are affected by the confluence of his Autism Spectrum Disorder and decreased level of intellectual functioning. For example, he is a very concrete and literal thinker.[11]
[10]Professor James Ogloff and Dr Goode gave evidence at the trial and his Honour also referred to the reports of Dr Cohen, Dr Buras, Ms Cusack, Dr Walton and Ms Brown.
[11]Reasons, [55].
Because of the respondent’s poor social skills he suffered from teasing and bullying at school, which continued while he was employed as a gardener at the Churchill campus of Monash University.[12] In about 2006, his employment came to an end and he was on a disability pension at the time of the offence. Although he lived by himself, he depended on his parents for cooking, cleaning and financial management.[13]
[12]Ibid.
[13]Ibid [48].
In sentencing the respondent, the judge considered the application of the principles in R v Verdins.[14] His Honour said that the respondent’s mental condition had reduced his moral culpability, and that his condition required moderation of general deterrence. He also took account of the fact that the respondent’s sentence would weigh more heavily on him than on a person not suffering from his disability.[15] He noted that the respondent was ‘genuinely remorseful’ and ‘had not in any sense set out to achieve this awful result’ and that the respondent, who was then 42‑years‑old, had no prior convictions.[16]
[14](2007) 16 VR 269 (‘Verdins’).
[15]Reasons, [66].
[16]Ibid [50], [67].
Grounds of appeal
In its grounds of appeal and written submissions the Crown relied on both specific sentencing error[17] and manifest inadequacy.[18] The Crown’s oral submissions dealt only with manifest inadequacy, though parts of his Honour’s reasons were relied upon to explain why his Honour had allegedly imposed a sentence which was outside the range which was reasonably open to him. We now turn to the Crown and the respondent’s submissions.
[17]Grounds 1 to 6.
[18]Grounds 5 to 7.
Crown submissions
The Crown submitted that the sentences of 11 years’ imprisonment imposed on each of the individual counts of arson causing death, gave inadequate weight to the gravity of the offending, having regard to the extreme conditions which existed on the day when the respondent lit the fire, the high likelihood that lighting the fire would imperil lives and the fact that 10 people had died as a consequence of the respondent’s arson.
The Crown further submitted that the manifest inadequacy of both the individual sentences and the total effective sentence occurred because the judge had given too much weight to the factors in Verdins in sentencing the respondent.
Of necessity, the Crown conceded that his Honour was required to take these matters into account in sentencing the respondent, but submitted that the individual sentences and base sentence were manifestly inadequate because they gave insufficient weight to the need to protect the community from the respondent, whose lack of judgment because of his mental condition placed him at higher risk of re-offending when he was released. The Crown relied on the following passage from Professor James Ogloff’s report[19] which was said to establish the risk that the respondent might re-offend:
As a result of Mr Sokaluk’s denial that he committed the offences it was not possible to obtain information regarding any possible motivation he may have had if in fact he lit the fire. Based on the information available to me and in light of my assessment, however, it is my opinion that Mr Sokaluk does not meet the criteria for a diagnosis of pyromania. As noted in the report, while Mr Sokaluk does have several characteristics associated with firesetters, there are a number of important criteria lacking (eg, the abuse of substances, general criminal offending, antisociality). If he did deliberately light the fires,[20] it is likely that his motivation was either expressive (as a result of his social inadequacy) or instrumental (to achieve a particular extrinsic goal).
[19]This was prepared for the purpose of assessing the nature and extent of Mr Sokaluk’s mental impairment, his psychological functioning and his fitness to stand trial.
[20]The report was written prior to the trial which resulted in the respondent’s conviction on the basis that he had lit the fire intentionally.
Counsel for the Crown argued that, contrary to the trial judge’s view that he did not have to consider the decision of the High Court in Muldrockv The Queen[21] because he had applied Verdins principles, Muldrock had made important changes to the law. He submitted that following the Court of Appeal’s decision in Verdins, Victorian courts had tended to assume that an offender’s mental condition reduced his or her moral culpability, without considering the need to establish a causal link between the mental condition and the commission of the offence. By contrast, in Muldrock the High Court had emphasised the need for a causal link to be established in order for an offender to rely on a reduction in his or her moral culpability.
[21](2011) 244 CLR 120 (‘Muldrock’).
Muldrock had also made it clear that, although a mental condition may reduce an offender’s moral culpability or require the moderation of general deterrence, the existence of a mental condition may also require the sentencing judge to give greater weight to the protection of the community, because it increases the risk of re-offending. This was particularly important when the offender lacked judgment because of an intellectual disability. The judge should have taken account of the fact that because an intellectual disability is permanent, the likelihood that the respondent would re-offend was necessarily greater than would have been the case for a person with a curable mental condition. The sentences imposed showed that his Honour had given insufficient weight to the fact that the respondent’s lack of judgment increased the risk that he might re-offend after he was released.
In response to a question from the President, counsel submitted that the individual sentences of imprisonment on each count should have been in the range of 15 to 17 years, that nine to 18 months of the sentences on the individual counts should have been accumulated on the base sentence and that an appropriate total effective sentence would have been in the range of 24 to 26 years.[22]
[22]The Crown was not asked to propose an appropriate sentencing range by the trial judge. The trial judge’s attention was drawn to R v Chambers [2005] VSCA 34 (offender pleaded guilty to two counts of arson causing death: fire deliberately lit by offender with borderline personality disorder intending to burn possessions of the occupier-offender; re-sentenced on appeal against sentence to total effective sentence of ten years’ imprisonment, non-parole period of six and a half years) and DPP v Bennett [2004] VSC 207 (guilty plea to one count of arson causing death and two counts of reckless conduct endangering life – offender conscious of presence of victim of arson causing death count when he lit a candle in his bedroom; second count of reckless conduct occurred some months after the offence of arson causing death; offender aged 23 with difficult childhood, but no psychological or psychiatric report tendered – offender sentenced to 10 years’ imprisonment with a total effective sentence of 12 years’ imprisonment).
Respondent’s submissions
Counsel for the respondent argued that the judge had acknowledged the extreme seriousness of the offending and given proper weight to the Verdins factors. Although the offence of arson causing death does not require proof of a specific intention to cause death, but rather proof of an intention to commit the offence of arson, the judge was entitled to take account of the fact that the respondent’s moral culpability was reduced because his intellectual disability reduced his capacity to appreciate the extreme risk of lighting a fire on the particular day. His lack of appreciation of the risk was evidenced by the fact that shortly after he lit the fires the respondent rang 000 to report them. At trial the Crown had not submitted that the respondent had set out in his car intending to light the fire.
The 11–year sentences imposed on the individual charges and the total effective sentence of 17 years nine months with a non-parole period of 14 years were said to adequately balance the gravity of the offending and the need to protect the community, against the mental conditions which reduced the respondent’s moral culpability and made him an inappropriate vehicle for the application of general deterrence.
The respondent submitted that contrary to the Crown submission, Muldrock emphasised the need to take account of all relevant factors in sentencing an intellectually disabled offender and had not altered the principles expressed in Verdins. The Crown submission was, in effect, that the judge should have imposed a sentence based on the possibility that Mr Sokaluk might re-offend when he was released, rather than on the gravity of the offences he had committed and his personal circumstances. However, sentencing principles do not permit a person to be placed in protective custody to protect the community from the possibility that they may re-offend in the future.
Further, although s 6D(b) of the Sentencing Act 1991 (Vic) permits a sentence longer than that which is proportionate to the gravity of the offending to be imposed on a serious arson offender when this is necessary to protect the community, at the plea hearing the Crown had not argued that the judge should apply s 6D(b).
The respondent submitted that the Crown should not be permitted to argue on appeal that his Honour had given insufficient weight to protection of the community, because the respondent’s future dangerousness was not put in issue during the plea. Professor Ogloff’s report had acknowledged that the respondent did not ‘meet the criteria for a diagnosis of pyromania’ and had not said he was likely to re-offend. The Crown did not call any other evidence that the respondent’s intellectual disability made him more likely to re-offend because of his lack of judgment. Nor did the Crown submit that this was the case. The respondent was 39 when he offended, had no prior convictions, was not known to have previously lit any fires, and had complied with the conditions of his bail.
In his record of interview the respondent had acknowledged the terrible consequences of the fire, although he claimed that he had lit it accidentally. As his Honour said, the respondent had not intended to achieve the ‘awful result’ of killing people and destroying property, including the bush which he regularly visited.[23] All these factors reduced the risk that the respondent might re-offend.
[23]Reasons, [67].
In any case his Honour had acknowledged that community protection was an important sentencing consideration. The judge had the opportunity to observe the respondent prior to the trial when his fitness to stand trial was being assessed, and during the trial. This enabled him to reach a view about the likelihood that the respondent would re-offend after his release.
The fact that the respondent was intellectually disabled and autistic did not mean that he was unable to learn or to rehabilitate himself. Indeed Professor Ogloff had said in his report that if he had ongoing support he could later be moved to a medium or minimum security prison.
Conclusion
Before explaining our conclusion that the sentence was not manifestly inadequate, we refer briefly to a number of issues raised in discussion at the hearing of the appeal.
We note first that s 197(2) of the Crimes Act 1958 (Vic) imposes a maximum penalty of 15 years’ imprisonment on an arsonist who intentionally and without lawful excuse destroys or damages property, intending by that destruction or damage to endanger the life of another.[24] By contrast, the maximum penalty imposed on a person who commits arson causing the death of another is 25 years’ imprisonment, even though that death may not have been intended.
[24]Section 197(2) is not confined to arson, but under s 197(6), destroying or damaging property by fire shall be charged as arson.
It is somewhat curious that the maximum sentence which can be imposed on an arsonist who intends to endanger the life of another is 15 years, whilst an arsonist who does not intend to cause death may be sentenced to a higher period of imprisonment if that death actually occurs. This may be because the higher maximum sentence which applies to the s 197A offence was intended to reflect the great value which the law places on the protection of human life.
Secondly, we would accept the respondent’s submission that, although no specific intent to cause death is required for the offence in s 197A (and such an intention would in any case make the arsonist guilty of murder), a subjective lack of appreciation of the magnitude of the risk of lighting the fire is relevant in assessing the moral culpability of the offender for the purposes of sentencing.
The moral culpability of a person who intentionally lights a fire on a day of extreme weather conditions and/or in the face of a total fire ban, appreciating there is a strong possibility that the fire will spread, is greater than the moral culpability of a person who does not understand the magnitude of that risk. In many cases weather conditions and other factors will permit an inference to be drawn that the offender must have fully understood the likely consequences of his or her actions.
In this case his Honour held that the respondent must have known of the risk created by the fire. We do not consider that this finding precluded the judge from finding that the respondent’s moral culpability was reduced, because he did not fully appreciate the ‘awful consequences’ that were likely to follow from the lighting of the fire. As this Court held in Carroll v The Queen,[25] a finding that an offender’s moral culpability was or was not reduced by his or her mental condition ‘will attract appellate intervention only if that finding was not reasonably open on the evidence.’[26] In this case, it was clearly open to his Honour to reach that conclusion, on the basis of the psychological reports which were before him.
[25][2011] VSCA 150.
[26]Ibid [17].
Thirdly, we would reject the Crown’s submission that Muldrock has altered the law in Victoria. We note that in Verdins this Court drew upon the principles previously articulated in R v Mooney,[27] R v Anderson[28] and R v Engert.[29] Mooney was approved by the High Court in Muldrock and Anderson was acknowledged in a footnote.[30]
[27]R v Mooney (Unreported, Supreme Court of Victoria, Young CJ, Lush, Jenkinson JJ, 21 July 1978).
[28][1981] VR 155.
[29](1995) 84 A Crim R 67.
[30]Muldrock (2011) 244 CLR 120, [130].
Counsel for the Crown argued that Muldrock had taken a different approach to Verdins by:
(a) requiring the proof of a causal connection before an offender’s mental condition can reduce his or her moral culpability; and
(b) recognising that a mental condition may increase the need for community protection, particularly in the case where the offender is intellectually disabled.
As to (a), in Muldrock the High Court noted that questions often arise about the causal relationship between an offender’s mental condition and the commission of the offence and that:
Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[31]
[31]Ibid [54].
In Tran v The Queen,[32] this Court did not consider that anything said in Muldrock had altered the principles summarised in Verdins.[33] The Court acknowledged that very often the existence of a causal connection between the mental condition and the offending will be relevant in ascertaining whether the mental condition makes the offender less blameworthy, but that:
[32][2012] VSCA 110 (‘Tran’). See also Carroll v The Queen [2011] VSCA 150, [17].
[33]Tran [2012] VSCA 110, [16].
[a]s was emphasised in Verdins, however, the task for the sentencing judge in every case is to examine what the evidence shows about the particular condition and how it affected the mental functioning of the offender, either at the time of the offending, or at the time of sentencing, or both.
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the Court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive …
The case-by-case approach to mental impairment issues was eloquently described by Gleeson CJ in Engert v The Queen:[34]
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might meant that deterrence of others is of lesser importance, might, at the same time, mean that that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2).[35] Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.[36]
[34](1995) 84 A Crim R 67, 68.
[35]Veen v The Queen(No 2) (1988) 164 CLR 465 (‘Veen’).
[36]Tran [2012] VSCA 110 [22]–[23].
As to (b), this Court has accepted the proposition in Muldrock that an offender’s mental impairment (including an intellectual disability) may sometimes require the sentencing judge to place additional weight on community protection. That is particularly likely to be the case where the offender has prior convictions and the seriousness of the offending conduct has escalated over time.[37] But it does not mean that in every case where an offender is intellectually disabled the Court must assume that he or she is incapable of rehabilitation and therefore likely to re-offend.
[37]See, eg, DPP v Patterson [2009] VSCA 222.
Was the sentence manifestly inadequate?
We now turn to the question of manifest inadequacy. The judge noted that in sentencing the respondent on counts 2 to 10, s 6D of the Sentencing Act1991 (Vic) required him to ‘regard the protection of the community from the offender as the principal purpose for which the sentence’ is imposed but that it had not been put to him that he should impose a sentence which was disproportionate to the gravity of the offending.[38] It was presumably for this reason that the Crown did not argue on appeal that a disproportionate sentence was required for community protection purposes. Instead the Crown submitted that the need for community protection was so powerful that, in effect, it cancelled out the mitigating effect of the respondent’s mental condition. Although protection of the community is an important sentencing factor,[39] we would reject the argument that his Honour gave insufficient weight to the need to protect the community from the respondent because of his intellectual disability.
[38]Reasons, [59]–[61].
[39]Veen (1988) 164 CLR 465, 473 (Mason CJ, Brennan, Dawson, Toohey JJ).
We would also reject the submission that the gravity of the offending, and the need to protect the community from the respondent, required the imposition of a total effective sentence falling within the range of 24 to 26 years. It was not submitted below (or before us) that the respondent planned the arson before he lit the fire. Despite his intellectual disability he had reached the age of 39 without having been convicted of any offence.
Not only was there little evidence before the Court as to the likelihood that the respondent would commit arson again when he was released, but there is no basis for concluding that the respondent would be less likely to re‑offend when released after a sentence falling within the range proposed by the Crown (24 to 26 years), than if he were released following the service of the 14 year non‑parole period imposed by the judge. Indeed, the institutionalisation of the respondent for a period exceeding 22 years might well increase the possibility of him re‑offending.
The judge was faced with an extremely difficult sentencing task. On the one hand, the respondent’s intellectual impairment and autism spectrum disorder reduced his capacity to appreciate the likely seriousness of his actions. As counsel for the respondent submitted, the judge was well equipped to consider how the Verdins principles should be applied in sentencing Mr Sokaluk, having had the opportunity to observe him prior to and during the trial. The respondent was remorseful and could rely on Verdins factors 1 (reduction of moral culpability), 3 (the moderation of general deterrence), and 5 (the difficulties the respondent was likely to face in prison because of his disability).
On the other hand, the sentence imposed had to reflect the extreme dangerousness of lighting a fire in the conditions which prevailed on Black Saturday, the terrible loss of life caused by the respondent’s offending and the lasting effects of the victims’ deaths on their families.
There is nothing in the individual sentences or the total effective sentence which requires the conclusion that his Honour erred in balancing these factors. In our view, the sentences imposed cannot be regarded as falling outside the range of sentences which could be imposed in the reasonable exercise of the sentencing discretion. For these reasons we would dismiss the appeal.
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