Issa v The Queen

[2017] NSWCCA 188

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Issa v R [2017] NSWCCA 188
Hearing dates:	21 July 2017
Decision date:	02 August 2017
Before:	Hoeben CJ at CL at [1] Adamson J at [2] Bellew J at [104]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against aggregate sentence – damage to property intending thereby to pervert the course of justice – whether De Simoni principle infringed by taking into account foresight of consequences of damage to property – HELD – principle not infringed because more serious offences (ss 196 and 198 of Crimes Act 1900 (NSW)) require intention to cause consequences; recklessness as to consequences insufficient   STATUTORY INTERPRETATION – relevance of Second Reading Speech – can be used to construe provision but not determinative – express words of statute guide to legislative intent
Legislation Cited:	Crimes Act 1900 (NSW), ss 18, 35, 112, 195, 196, 198, 319 Crimes Amendment Act 2007 (NSW), Sch 1 Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW), Sch 1 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 53A, 54B Criminal Procedure Act 1986 (NSW), ss 20, 27, 166, 168, 268 Interpretation Act 1987 (NSW), s 34
Cases Cited:	Baines v R [2016] NSWCCA 132 Caristo v R [2011] NSWCCA 7 Cassidy v R [2012] NSWCCA 68 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Mulato v R [2006] NSWCCA 282 Mundine v R [2017] NSWCCA 97 Nasser v R [2017] NSWCCA 104 R v Chisari [2006] NSWCCA 19 R v Teremoana (1990) 54 SASR 30 R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Texts Cited:	Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1987
Category:	Principal judgment
Parties:	Bill Issa (Applicant) Regina (Respondent)
Representation:	Counsel: M C Ramage QC (Applicant) N Adams (Respondent)   Solicitors: Jeffreys Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/26099 and 2013/245291
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 22 February 2016 Before: Zahra DCJ File Number(s): 2013/26099 and 2013/245291

Judgment

1. HOEBEN CJ at CL: I agree with Adamson J. I particularly agree with her Honour’s analysis of the mental element required for offences contrary to ss 195, 196 and 198 of the Crimes Act 1900 (NSW).

2. ADAMSON J: The applicant seeks leave to appeal against the aggregate sentence imposed on him by Zahra SC DCJ in the District Court at Sydney on 22 February 2016.

3. The applicant was found guilty after trial of five counts of intentionally damaging property by means of fire (counts 1, 3, 5, 9 and 11) (the fire damage offences). Each count carried a maximum penalty of 10 years’ imprisonment under s 195(1)(b) of the Crimes Act 1900 (NSW). The applicant was also found guilty of five counts of doing an act with intent to pervert the course of justice (counts 2, 4, 6, 10 and 12) (the pervert justice offences). Each count carried a maximum of 14 years’ imprisonment under s 319 of the Crimes Act. The offences were committed between March and May 2013.

4. In addition, the applicant pleaded guilty during the course of the trial to recklessly causing grievous bodily harm in company against HNP (the statutory alternative to count 13), contrary to s 35(1) of the CrimesAct, which carries a maximum of 14 years’ imprisonment and has a standard non-parole period of 5 years.

5. An aggregate sentence of 12 years was imposed with a non-parole period of 9 years, commencing on 15 February 2015. The applicant will be eligible for release on parole on 14 February 2024.

6. The sentencing judge was obliged to find the facts for the 10 offences of which the applicant was found guilty at trial. There was an agreed statement of facts for the offence committed against HNP. The applicant did not challenge any of his Honour's findings of fact.

7. In order to fulfil the requirements of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated the sentences that would have been imposed had separate sentences been passed rather than an aggregate sentence. The sentences indicated and a summary of the offences are set out in the table below.

Count	Date of offence	Offence	Section of Crimes Act/ Maximum penalty	Indicative sentence
1	7 March 2013	Intentional damage by fire to property (business premises) at Milsons Point previously occupied by MDB’s solicitor, Mr AI.	195(1)(b)/ 10 years	3 years
2	7 March 2013	Damaged a building at Milson’s Point, intending thereby to pervert the course of justice.	319/ 14 years	7 years
3	11 March 2013	Intentional damage by fire to property (residence) of Mr DW and Ms DW at St Clair.	195(1)(b)/ 10 years	3 years
4	11 March 2013	Damaged a property at St Clair intending thereby to pervert the course of justice.	319/ 14 years	8 years
5	17 March 2013	Intentional damage by fire to the property (residence) of JS at Girraween.	195(1)(b)/ 10 years	4 years
6	17 March 2013	Damaged a building at Girraween intending thereby to pervert the course of justice.	319/ 14 years	7 years
9	5 May 2013	Intentional damage by fire to the property (residence) of MDB at Maroubra.	195(1)(b), 10 years	3 years
10	5 May 2013	Damaged a building (residence) at Maroubra by fire intending thereby to pervert the course of justice.	319/ 14 years	7 years
11	12 May 2013	Intentional damage by fire to the property (residence) of Mr AI (MDB’s solicitor) at Mosman.	195(1)(b)/ 10 years	4 years
12	12 May 2013	Damaged a building (residence) at Mosman by fire, intending thereby to pervert the course of justice.	319/ 14 years	7 years
13	2 June 2013	Recklessly cause grievous bodily harm (to HNP) in company.	35(1)/ 14 years (SNPP 5 years)	7 years with non-parole period of 5 years and 3 months

The sentence hearing

8. At the sentence hearing the Crown tendered a bundle of documents which comprised: a statement of facts in relation to count 13; the applicant’s criminal and custodial history; a victim impact statement of Deanne Witchard, a victim of counts 3 and 4; and a pre-sentence report of Stacey Deller. The applicant’s legal representative tendered two psychological reports: a report of Ruth Allen dated 12 November 2015 and a report of Sava Tsolis dated 19 November 2015 and three testimonials. CCTV footage of the attack on HNP (count 13) was played in the court at the sentence hearing. The applicant did not give evidence at the sentence hearing.

The remarks on sentence

The facts

9. His Honour found, consistently with the jury’s verdicts and the applicant’s plea, that there were six separate episodes of criminality, five of which involved the applicant firebombing premises with the intention of perverting the course of justice; and a sixth which involved the reckless cause grievous bodily harm in company.

10. The applicant carried on business as a commercial and residential builder through a company, Isabella Shop Fitout and Design (Isabella), which carried out renovations to commercial and residential premises.

Ms MDB and her solicitor, Mr AI

Counts 1 and 2: the firebombing of premises at Milson’s Point formerly occupied by Ms MDB’s solicitors

11. In August 2012, Ms MDB, who lived in Maroubra, commenced proceedings against Isabella in the District Court for damages for breach of contract with respect to renovation work carried out on her business premises at Maroubra. Her solicitor, Mr AI, was engaged with a firm which occupied premises at Milson's Point. The statement of claim contained the Milson’s Point address as the address for the plaintiff’s solicitors. On 18 January 2013 the firm moved to North Sydney. In an affidavit sworn for the purposes of the proceedings Mr AI disclosed his own residential address at Mosman.

12. The District Court proceedings were originally set down for hearing in October 2012 but the matter was ultimately stood over for a five-day hearing on Monday 11 March 2013. A court-ordered mediation was set down for 8 March 2013, the Friday before the hearing was due to commence.

13. Between 7pm on 7 March 2013 and 9am on 8 March 2013 there was a firebomb attack on the Milson's Point premises formerly occupied by Mr AI’s firm. When the owner of the Milson’s Point premises entered the premises he was confronted with an overpowering smell of kerosene. Investigation by crime scene police revealed two ignition areas caused by the lighting of accelerant in two beer bottles which had been thrown at the building and which had broken on impact.

14. On 8 March 2013, there was a court-ordered mediation of the proceedings brought by Ms MDB in the District Court, which was unsuccessful.

Counts 9 and 10: the firebombing of Ms MDB’s home at Maroubra

15. The hearing in the District Court commenced on 11 March 2013 but was not completed in the five days allocated and was set down for further hearing on 13 May 2013. Directions were made for the exchange of written submissions in the interim. The applicant was directed to file further submissions by 30 April 2013. On 3 May 2013 Ms MDB filed further submissions, to which the applicant was directed to respond by 7 May 2013.

16. Between 10pm on 4 May 2013 and 6am on 5 May 2013, Ms MDB’s parents’ home at Maroubra, where she was living at the time, was firebombed with a glass bottle containing a cloth soaked in accelerant which had been ignited. Glass was broken and there were scorch marks to the walls. A glass brick in the bay window was also broken.

Counts 11 and 12: the firebombing of the home of Ms MDB’s solicitor, Mr Al, at Mosman

17. At about 3.30am on Sunday 12 May 2013, the eve of the resumed hearing date, the residence of Ms MDB’s solicitor, Mr AI, at Mosman, was firebombed. Mr AI was woken by the sound of glass smashing. He saw an orange glow, smelled kerosene and heard a neighbour call, “Fire!”. The police and fire brigade arrived. There were scorch marks to the walls of Mr AI’s residence.

18. Neighbours who had been woken by the ruckus saw two men getting into a Holden Commodore which had been parked in the street. This vehicle had been purchased by the applicant in the name of his sister-in-law on 3 May 2013. In the hours following the fire, police discovered that the vehicle was not located at the sister-in-law’s address. On the day of the Mosman fire, the applicant contacted the Police Assistance Line and reported that the Holden Commodore had been stolen from his business premises. As a result of a telephone call to police from “Tina”, the vehicle was later found, abandoned at Warragamba.

19. Notwithstanding the various attacks made on her home and the premises of her solicitor, Ms MDB successfully pursued her claim to judgment in the District Court.

Mr DW and Ms DW

Counts 3 and 4: the home of Mr DW and Ms DW at St Clair

20. In December 2012 Mr DW and Ms DW (the victims of counts 3 and 4) filed an application against Isabella in the Consumer Trader and Tenancy Tribunal (CTTT) in which they claimed damages in the order of $40,000 arising from renovation work carried out at their residence in St Clair. A hearing date of 26 March 2013 was allocated.

21. At 3.45am on 11 March 2013, approximately a fortnight prior to the hearing date of their CTTT proceedings against Isabella, there was a firebomb attack at the home of Mr DW and Ms DW at St Clair. The couple and their two children were asleep when Ms DW was woken by a noise. She saw an orange glow and discovered that the awning outside their bedroom was on fire. She called police who managed to extinguish the fire. On the day of the fire, Mr DW filed a notice of discontinuance in the CTTT proceedings and Ms DW informed the applicant that the proceedings had been discontinued.

22. His Honour found that the applicant was “emboldened” by the success of the firebombing at the St Clair residence and that, in committing the acts, at that particular stage of the proceedings, the applicant wanted to send a clear message to the victims that they should discontinue the proceedings. His Honour found that the applicant’s firebombing of the St Clair residence directly led to the withdrawal of the proceedings they were entitled to pursue in the CTTT and that this “significantly heightens the objective seriousness of the offending”.

Mr JS

Counts 5 and 6: premises at Girraween owned by JS

23. In November 2012 JS filed an application in the CTTT against the applicant in which he alleged that the work performed by Isabella in the kitchen of his home at Girraween was not in accordance with their contract.

24. On about 14 March 2013 JS and the applicant were informed by the CTTT that JS’s application was listed for hearing on 2 April 2013. On 16 March 2013 JS left his home at about 7.30pm to go to work as he worked the night shift. At about 1.30am one of JS’s neighbours heard a car accelerating at the front of JS’s residence which was not occupied as JS’s wife also worked the night shift. When the neighbour looked out of the window he saw flames at the front of JS’s residence. When JS came home at 8am the following morning, 17 March 2013, he discovered burn marks to the front of his unit and a broken glass bottle.

25. On 2 April 2013 JS attended the CTTT for the hearing. The applicant was not present. A member of the CTTT informed JS that there was an irregularity in the description of the applicant’s company in the application which would need to be rectified. JS decided not to pursue the proceedings. His Honour was not satisfied to the requisite standard that the applicant’s conduct deterred JS from pursuing the proceedings.

Mr HNP

Count 13: the attack on HNP

26. In August 2012 HNP filed an application in the CTTT against the applicant claiming damages for loss alleged to be suffered as a result of renovation work conducted by Isabella at his restaurant at Ultimo. In April 2013 the proceedings were adjourned to 6 June 2013 for hearing.

27. At about 6pm on 1 June 2013, three men, including the applicant, arrived in a white car in a street not far from HNP’s restaurant. They walked around the area surrounding the restaurant. They left at about 8.45pm. At about 9.35pm the applicant was seen by police driving in his Holden Commodore at Kemps Creek with his two sons. At about 8.10pm on 2 June 2013 CCTV cameras captured three men, including the applicant, arriving in a white car near HNP’s restaurant. At around closing time, HNP took rubbish down to the basement in the lift. On his return to the floor of his restaurant, the lift doors opened and three men, including the applicant, got into the lift and attacked HNP. The assault was captured on CCTV. One of the men used knuckle dusters to punch HNP in the face. The applicant struck HNP’s head and body with a long metal torch, which caused his forearm to fracture. The three men then left the area in a white car.

28. The victim’s head was lacerated, which required staples to be inserted. HNP required surgery to his left forearm which involved the insertion of a metal plate and screws. He has restricted movement and loss of strength in his left shoulder and arm, which affects his capacity to work.

29. His Honour noted that although the probable reason for the attack might have been to frustrate the proceedings commenced by HNP, he was not satisfied of that matter to the requisite standard.

Assessment of criminality of offences against ss 195 and 319 (counts 1-6, 9-12)

The purpose and duration of the offending conduct

30. The sentencing judge described the applicant’s criminal conduct as revealing a “persistent and determined pattern of threatening behaviour towards the victims”. His Honour found:

“The applicant by his conduct frustrated the rights of the victims to access either the CTTT or the NSW District Court and to pursue a remedy for their claims.

The period of time over which the offending occurred, which can be determined by reference to the chronology, is a period of about two months. Whilst the applicant is entitled to have his offending viewed against a background which contains no history of violence, the persistence of threatening and violent conduct over the period of offending here evidences criminality and lawlessness of a high order.

31. In relation to the issue of planning, whilst the acts of firebombing were simple to put into effect and required little resources to be marshalled, the pattern of behaviour, as clearly indicated in the chronology set out here, indicates a course of deliberate and persistent conduct which was brazen in the extreme.”

The relevance of presence or potential presence of persons inside the premises at the time of the firebombings

32. His Honour addressed the question whether it was appropriate to take into account the presence or potential presence of persons inside the premises at the time of the firebombings as an aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act which identifies, as an aggravating factor, that “the offence was committed without regard for public safety”. His Honour considered the application of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, having regard to the fact that the applicant was not charged with an offence under s 198 of the Crimes Act of destroying or damaging property with the intention of endangering life.

33. His Honour said of the aggravating factor in s 21A(2)(i):

“It is appropriate that regard be had to the potential for the firebombing attacks here, particularly those in residential areas, that there existed a risk of fire spreading to buildings surrounding the building targeted by the offender.”

34. His Honour said of the foreseeable consequences of the offending conduct, which is an aggravating factor at common law:

“Having considered the principles referred to in the decision in R v Teremoana (1990) 49 A Crim R 207 I am of the view that it is permissible to take into account when sentencing an offender for an offence under s195(1)(b) that the offender realised his conduct was likely to cause a risk of physical danger to the victim and that in doing so the principle in De Simoni would not be infringed.

A question then follows, looking at each event separately, whether the offender would have realised that there was a risk of persons being present inside the premises and if so whether the offender realised, by firebombing the premises in the way he did, that his conduct was likely to cause a risk of physical danger to those persons.”

35. The sentencing judge was satisfied beyond reasonable doubt, in respect of counts 5 and 11, that the offender would have realised that his conduct was likely to cause a risk of physical danger to the occupants and took this into account as an aggravating factor for the indicative sentences for those two offences.

Conclusion

36. His Honour’s conclusions as to the seriousness of the offences under ss 195 and 319 were:

“The offending in relation to each of the separate counts is objectively of a most serious kind. The offender attempted, by threat, to deprive the victims of the firebombings of their right to access the State's courts or tribunals. The offending in relation to the claim brought by Ms MDB involved conduct amounting to a campaign of fear and intimidation and involved the firebombing of the previous place of practice of the victim's solicitor and a firebombing of the solicitor's home. The conduct strikes at the heart of the processes of the courts and the freedom of litigants to pursue their claims before the State's courts and tribunals. The right of individuals to access courts and tribunals must be protected by imposing a sentence which contains a significant element of general deterrence.”

Assessment of criminality of offence against s 35(1) (count 13)

37. His Honour found that the offence to which the applicant pleaded guilty was “objectively of a most serious kind”; there was significant planning; and the attack was “ferocious” and carried out when the victim was most vulnerable, since he was in a confined space from which he could neither escape nor seek help. The sentencing judge described the applicant and the other two men as “cowards”.

Moral culpability

38. The sentencing judge noted that the applicant had not given evidence at the sentence hearing and found that it was appropriate to exercise caution in accepting untested histories given to experts whose reports were tendered on the applicant’s behalf. Accordingly, his Honour refused to find that medication affected the applicant’s judgment at the time of the offending.

39. His Honour took into account the applicant’s prior good character and lack of criminal history. However, the sentencing judge noted that the offending conduct took place over a period of three months which represented “a pattern of lawlessness of a high order”. His Honour considered that a strong measure of denunciation and deterrence was called for.

Subjective circumstances

40. The sentencing judge recounted the applicant’s subjective circumstances, in so far as they could be ascertained from the expert reports. The applicant was born in Lebanon and migrated to Australia at the age of five. He was 53 years old at the time of sentence. He left school after Year 10 and has worked consistently since. He married when he was 21 and had two sons. He and his wife were divorced six years later but he remained close to his sons. His Honour accepted that the applicant had been married to his second wife, with whom he has had four children, for 22 years. His second wife remained supportive of him.

41. His Honour noted the opinion expressed by the psychologist that corporal punishment at school and home had led to self-aggrandising strategies. However, his Honour considered there to be nothing in the material tendered which would warrant a finding that the applicant’s judgment at the time of the offending was impaired by any significant underlying psychological or psychiatric condition.

Remorse

42. The sentencing judge noted that the applicant continued to deny his guilt of the offences of which he was convicted at trial. However the applicant did tell psychologists who assessed him for the sentence hearing that he “felt sorry” for the victims of the firebombing attacks and was “really sorry” for the attack on HNP. The sentencing judge found that, as the applicant had not given evidence at the sentence hearing, he could not fully assess the genuineness of his remorse. However, his Honour said that he took into account the applicant’s expression of remorse for the attack on HNP.

Rehabilitation, prospects of re-offending and special circumstances

43. His Honour summarised the views of experts and concluded:

“The offender does not have a significant prior criminal history and has strong family support. The sentences to be imposed here will have a significant deterrent effect.

The offender faces a lengthy sentence and is likely to require supervision upon his release to assist him re-establish himself in the community. With supervision over a period upon release the offender's prospects of rehabilitation will be enhanced. The parole period that will follow from the sentence I impose will be sufficient to meet the supervision and treatment needs of the offender upon his release and consequently I do not make a finding of special circumstances. In my view the offender has reasonable prospects of rehabilitation.”

Discount for plea of guilty

44. His Honour allowed a discount of 12.5% for the plea of guilty to the statutory alternative to count 13.

Accumulation and totality

45. His Honour noted that the same acts of arson were relied on for the fire damage offences and the pervert justice offences and accepted the Crown’s concession that the sentence for each pair of offences should be served concurrently (in a notional sense as an aggregate sentence was imposed).

Victim impact statement

46. His Honour took into account the victim impact statement of Ms DW pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act but not as an aggravating factor pursuant to s 21A(2)(g) (that the injury, emotional harm, loss or damage caused by the offence was substantial).

The grounds of appeal

47. Leave to appeal is sought on the following grounds, which will be considered in turn, with the exception of grounds 2 and 4, which will be dealt with together, as they overlap.

1. The sentencing judge erred in his assessment of the individual components of the aggregate sentence.

2. The sentencing judge erred in treating the offences as being aggravated.

3. The sentencing judge erred in his assessment of the objective gravity involved in count 13.

4. The sentencing judge erred in breaching the rule in De Simoni.

5. The sentencing judge erred in failing to find special circumstances.

6. The sentence was manifestly excessive.

The sentencing judge erred in his assessment of the individual components of the aggregate sentence (ground 1)

The applicant’s submissions

48. The applicant accepted that the pervert justice offences were strictly indictable. At the hearing his counsel no longer pressed the submission that the sentencing judge erred by not taking into account that the offences against s 195(1)(b) of the Crimes Act could have been dealt with in the Local Court although he submitted that the damage was relatively minor. He contended that there was double counting in the indicative sentences for the offences of attempt to pervert the course of justice and intentional damage to property by fire. He also argued that the sentencing judge erred in finding that count 4 was aggravated. The applicant submitted that the offence against HNP could have been dealt with in the Local Court and the sentence was manifestly excessive.

Consideration

The sentences indicated pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act

49. A sentencing court is obliged by s 53A(2)(b) to indicate the sentences that it would have imposed had separate sentences been imposed instead of an aggregate sentence. However, only the length of an “indicative” sentence, and the non-parole period where there is a standard non-parole period for the offence need be indicated: ss 44(2C) and 54B(4). One of the benefits of an aggregate sentence is that the specification of commencement and expiry dates is not required, although the length of indicative sentences must be specified.

50. The only sentence that was actually passed was the aggregate sentence. The sentences indicated by his Honour are not, strictly speaking, "individual components" of the aggregate sentence. The applicant made no complaint about the indicative sentences in respect of the fire damage offences which he accepted were “within range” although “towards the high end”. He also appeared to accept that the indicative sentences for the pervert justice offences were within range, albeit “in the high side”. The sole complaint about the indicative sentences is that the sentence indicated for count 4 is excessive.

51. Where the sentence indicated by a sentencing judge for an offence which has been incorporated within an aggregate sentence is excessive, this may provide some insight into why an aggregate sentence is manifestly excessive. However, there is no appeal, as such from an indicative sentence. In these circumstances I propose to address this aspect of ground 1 when I come to ground 5 (manifest excess).

The relevance of the fire damage offences not being strictly indictable

52. The applicant did not press the submission that the sentencing judge ought to have taken into account the circumstance that the fire damage offences were not strictly indictable. He accepted that it was a matter for the Director of Public Prosecutions (the DPP) to elect whether they ought be tried on indictment or summarily: s 20(1) of the Criminal Procedure Act 1986 (NSW); Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [20] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); and Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [34]-[35] (French CJ, Hayne, Kiefel, Bell and Keane JJ). The exercise of the DPP’s discretion is not a matter which is subject to review by this Court.

53. Nonetheless, the applicant submitted that, as the actual damage caused to the properties was relatively modest, they could have been dealt with by the Local Court.

54. The applicant has not established any error on this ground. The election to proceed with the fire damage offences on indictment was understandable. First, each fire damage offence was associated with a pervert justice offence, which is a strictly indictable offence. Secondly, there were repeated attacks aimed at intimidating one of the litigants by also targeting their solicitor. Thirdly, the damage to the Mosman premises was not minimal. Fourthly, the criminality involved in each of the fire damage offences was substantial and, if proved, warranted sentences in excess of the jurisdictional limit of the Local Court of two years provided for by s 27(2) of the Criminal Procedure Act. The DPP’s decision to proceed on indictment for the five fire damage offences was vindicated by the sentences indicated by his Honour for those offences, each of which exceeded the jurisdictional limit of the Local Court: see R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [27]-[35] (Grove J, Spigelman CJ and Kirby J agreeing).

55. In the circumstances of the present case it is of no more than hypothetical relevance that the fire damage offences were not strictly indictable: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [83] (Johnson J, McClellan CJ at CL agreeing).

56. As Basten JA said in Baines v R [2016] NSWCCA 132 at [13]:

“The court should impose the appropriate sentence for the offence as proved, within the limits of the sentencing court’s jurisdiction and discretion.”

Alleged double counting with fire damage and pervert justice offences

57. While the actus reus of the fire damage offences was the same as the pervert justice offences, the commission of each offence involved a distinct mental element. At the sentence hearing the Crown submitted that concurrent sentences were appropriate (in the event that the sentencing judge was minded not to impose an aggregate sentence) for each respective fire damage and pervert justice offence. The Crown also accepted that the sentence for any one fire damage offence could be subsumed by the sentence for the corresponding pervert justice offence, the latter offence being the more serious and carrying the greater maximum penalty. His Honour recorded that he accepted that the notional sentences for the pairs of offences under ss 195 and 319 ought be served concurrently, albeit in the context of an aggregate sentence. As there was no challenge to this approach, which was to the benefit of the applicant, it is not necessary for this Court to review it. It is sufficient to observe that this approach favoured the applicant.

58. In these circumstances I am not persuaded that there was any double-counting as alleged by the applicant.

The relevance of the reckless cause grievous bodily harm offence not being strictly indictable

59. For similar reasons as those given above with respect to the fire damage offences, the circumstance that the offence to which the applicant pleaded guilty could have been dealt with in the Local Court is, in my view, of no more than hypothetical significance. The agreed facts are sufficient to indicate that the seriousness of this offence made it inappropriate to be dealt with in the Local Court. The sentence indicated by the sentencing judge could not have been imposed had the offence been dealt with in the Local Court or on a Form 1 following a certificate pursuant to s 166 of the Criminal Procedure Act, by reason of ss 168(3) and 268 of the Criminal Procedure Act: see R v Doan at [27]-[35] (Grove J, Spigelman CJ and Kirby J agreeing); and Mundine v R [2017] NSWCCA 97 at [92].

The sentencing judge erred in treating the offences as being aggravated (ground 2) and in breaching the rule in De Simoni (ground 4)

60. These grounds will be dealt with together as they overlap to some degree. Ground 4 will be dealt with first.

Ground 4: whether the sentencing judge breached the De Simoni principle

The applicant’s submissions

61. The applicant contended that a finding of the applicant's advertence to the possibility of harm to potential occupants of the relevant premises would trespass into the elements of more serious arson offences, namely those provided for by ss 196 and 198 of the Crimes Act. The applicant submitted that recklessness as to the consequences provided for in s 196 covered the same ground as the aggravating factors which were taken into account by his Honour at common law and under s 21A(2)(i). The applicant relied on the Second Reading Speech to the Bill which became the Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW) (the 1987 Amendment).

The De Simoni principle

62. The De Simoni principle (named after The Queen v De Simoni) is that a sentencing judge cannot take into account as a circumstance of aggravation a factor that would constitute an element of a more serious offence than the one for which the offender stands to be sentenced. This principle qualifies the statutory obligation in s 21A(2) to take into account aggravating factors which do not constitute elements of the offence: s 21A(2) of the Crimes (Sentencing Procedure) Act by reason of s 21A(4); Cassidy v R [2012] NSWCCA 68 at [1] (Basten JA).

63. The sentencing judge relevantly took into account two matters of aggravation: first, that “the offence was committed without regard for public safety” because “there existed a risk of fire spreading to buildings surrounding the building targeted by the offender”; and, secondly, that in respect of counts 5 and 11, that the offender would have realised that his conduct was likely to cause a risk of physical danger to the occupants.

The legislative history of ss 196 and 198 of the Crimes Act

Sections 196 and 198 before the 1987 Amendment

64. In order to address the applicant’s submission, it is necessary to have regard to the legislative history of the relevant statutory provisions, ss 196 and 198, before and after 1987. Prior to the enactment of the 1987 Amendment, s 196 provided:

“196   Setting fire to dwelling etc knowing person therein

Whosoever maliciously sets fire to any dwelling-house vehicle or aircraft, knowing any person to be then in such dwelling-house vehicle or aircraft, shall be liable to penal servitude for life.”

65. Prior to the 1987 Amendment, s 198 provided:

“198   Setting fire to certain other buildings etc

Whosoever maliciously sets fire to any dwelling-house vehicle or aircraft, or warehouse, office, shop, mill, barn, store-house, granary, or wool-shed, whether the same is then in the possession of the offender, or of any other person, with intent to injure or defraud any person, shall be liable to penal servitude for fourteen years.”

Sections 196 and 198 after the 1987 Amendment

66. As a result of the 1987 Amendment (which relevantly replicated the Bill which was the subject of the Second Reading Speech set out below), s 196 provided:

“196   Maliciously destroying or damaging property with intent to injure a person

A person who maliciously destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable –

(a)   to penal servitude for 7 years; or

(b)   if the destruction or damage is caused by means of fire or explosives, to penal servitude for 14 years.”

67. As a result of the 1987 Amendment, s 198 provided:

“198   Maliciously destroying or damaging property with the intention of endangering life

A person who maliciously destroys or damages property, intending by the destruction or damage to endanger the life or another, is liable to penal servitude for life.”

68. Thus, the effect of the 1987 Amendment was to substitute the requirement in s 196 that the accused knew that someone was in the “dwelling-house, vehicle or aircraft”, for a requirement that the accused intend to cause bodily injury. The effect of the 1987 Amendment to s 198 was to replace the requirement that the accused intend to injure a person with the requirement that the accused intend to endanger the life of another.

The Second Reading Speech for the Bill that became the 1987 Amendment

69. Notwithstanding the clear statutory language to the effect that intention as to particular consequences was required, the then Attorney-General, Mr Sheahan, explained the effect of the amendments in the Bill that became the 1987 Amendment in the Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1987 at 15345) as follows:

“Proposed section 196 contains the aggravating factor of intent to cause bodily injury to another. Under proposed section 196 (a) the maximum penalty provided is seven years' imprisonment. . . .

The most serious of the new offences is set out in proposed section 198 which will constitute it an offence to maliciously destroy or damage property with intent to endanger the life of another. This section will carry a maximum penalty of life imprisonment. The offence will require that the person knows that his or her act will endanger the life of another, or is reckless to that fact. This requirement is consistent with the state of mind necessary for murder and manslaughter which also carry a maximum penalty of life imprisonment. This maximum penalty is consistent with the penalty provided for offences where a person's life is threatened.”

[Emphasis added]

70. I respectfully disagree with the construction of s 198 in the portion I have highlighted in the passage set out above, which I regard as being at odds with the express words of the 1987 Amendment. In my view, recklessness as to the consequences (endangerment of life of another) is not sufficient for an offence under s 198. Moreover, I regard the reference to the “state of mind necessary for murder and manslaughter” as being inapposite. As at the date of the 1987 Amendment, s 18 of the Crimes Act (which defined murder and manslaughter), provided as follows:

“18   Murder and manslaughter defined

(1) (a)  Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life.

(b)  Every other punishable homicide shall be taken to be manslaughter.

(2) (a)  No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

(b)  No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence.”

71. Omitting felony murder, s 18 relevantly provided for three different mental elements for murder: intent to kill; intent to inflict grievous bodily harm; or reckless indifference to human life. Thus recklessness (reckless indifference to human life) as to consequences was the subject of specific provision and was not regarded as being included or subsumed within the ambit of “intent to kill or inflict grievous bodily harm”.

72. In my view, from the commencement of the 1987 Amendment, the words “with intent to injure” in s 196 and “with intent to endanger life” in s 198 required the Crown to prove, in each case, that the accused actually intended the specified consequences. This construction is consistent with this Court’s decision in Nasser v R [2017] NSWCCA 104, which is addressed below by reference to the current wording of s 198. A Second Reading Speech may be considered in the interpretation of a statute, whether or not there is an ambiguity in the provision: s 34(2)(f) of the Interpretation Act 1987 (NSW). However, in the present case, I regard the words of the provision as displacing the proposition that recklessness is sufficient for the mental element as to either of the consequences specified in either ss 196 or 198.

71. In 1989 and 2006, the provisions were amended, though not relevantly for present purposes. The provisions were further amended by the Crimes Amendment Act 2007 (NSW) (the 2007 Amendment), the principal effect of which was to remove the term “maliciously” from the Crimes Act. Schedule 1, [2] of the 2007 Amendment accordingly provided:

“[2] Section 5 Maliciously

Omit the section.

Explanatory note

This section (which defines ‘malicious’ for the purposes of offences under the Act) is being repealed as a result of the replacement of that term in offences under the Act with the modern fault element of ‘intention’ or ‘recklessness’.”

74. Schedule 1, [12] of the 2007 Amendment provided:

“[12] Section 47 Using etc explosive substance or corrosive fluid etc, section 196 Destroying or damaging property with intent to injure a person, section 198 Destroying or damaging property with intention of endangering life, section 200 Possession etc of explosive or other article with intent to destroy or damage property, section 211 Criminal acts relating to railways

Omit “maliciously” wherever occurring.

Explanatory note

This item makes a consequential amendment on the omission of the concept of “malicious” by item [2].”

75. As a result of the 2007 Amendment, s 196 of the Crimes Act relevantly provides (presently, and at the time of the offences):

“196   Destroying or damaging property with intent to injure a person

(1)  A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable:

(a)  to imprisonment for 7 years, or

(b)  if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years.”

76. As a result of the 2007 Amendment, s 198 of the Crimes Act provides (presently, and at the time of the offences):

“198   Destroying or damaging property with intention of endangering life

A person who destroys or damages property, intending by the destruction or damage to endanger the life of another, is liable to imprisonment for 25 years.”

77. The effect of the deletion of the word “maliciously” was to incorporate, by implication, intention and recklessness as the mental element referable to the actus reus.

The elements of an offence against s 196(1)(a) or s 198 of the Crimes Act

78. The elements of an offence against s 196(1)(a) are, relevantly:

1. The accused damaged property;

2. The accused did so intentionally or recklessly; and

3. When the accused damaged property he intended to cause bodily injury to another person.

79. The mental element that must be proved with respect to the act of damaging property (element (1)) is satisfied either by intention or recklessness (element (2)). However, in respect of the consequences, bodily injury to another person, the Crown must prove intention (element (3)). Recklessness (proof of foresight of particular consequences and the decision to go ahead anyway) is not sufficient to establish the mental element in (3). Similarly, the offence of damaging property with the intention of endangering life under s 198 of the Crimes Act requires the Crown to prove that an accused did a certain act (damaging property), intentionally or recklessly, with the intention of endangering the life of another. Thus, in Nasser v R, this Court (Fullerton J, Hoeben CJ at CL and Price J agreeing) said, obiter, at [28]:

“While s 198 of the Crimes Act provides for an offence where a person destroys or damages property intending to endanger the life of another, there is no offence under the Crimes Act where, when premises are deliberately damaged or destroyed, reckless endangerment of life is the mental element. That being the case, Mr Game did not seek to persuade the Court that a latent De Simoni error (R v De Simoni (1981) 147 CLR 383; [1981] HCA 31) had influenced the sentencing outcome or that the sentence imposed was rendered ‘unreasonable or unjust’ for that reason alone.”

80. I note for completeness that the Crown conceded in the present application before this Court that recklessness as to consequences was sufficient for ss 196 and 198, but I do not regard the concession as having been properly made.

81. Thus, if the applicant, as his Honour found, foresaw the possibility of injury to others (whether persons inside the house or members of the public) when he intentionally or recklessly damaged property, this mental element would not be sufficient for an offence under ss 196 or 198, since an intention to bring about the consequences is required. The mental states which were taken into account as matters of aggravation: “without regard for public safety” (s 21A(2)(i) of Crimes (Sentencing Procedure) Act) and foresight of the possibility of harm to a person in the premises (common law aggravation) fell short of the mental elements of an offence under ss 196 or 198. These circumstances are addressed further below in the consideration of ground 2. In these circumstances there has been no infringement of the De Simoni principle.

82. The applicant further contended that the sentencing judge breached the De Simoni principle when his Honour found, as an aggravating circumstance, that the applicant committed the offences "in company", thereby trespassing into the ingredients of the more serious offence provided for by s 195(1A)(b).

83. The principal difficulty with this submission is that it does not accord with the remarks on sentence. His Honour found that:

“the firebombing offences must proceed to sentence on the basis that the applicant was present at each of the firebombing events either acting alone or acting in a joint criminal enterprise with another or others.”

84. In his Honour’s careful and detailed remarks there is no suggestion that the circumstance that the applicant may have acted in company was treated as a circumstance of aggravation. This ground has not been made out.

Ground 2: whether counts 5 and 11 (fire damage offences) were aggravated by the applicant’s mental state as to the foreseeability of harm to persons

The applicant’s submissions

85. The applicant contended that his Honour was in error in finding that counts 5 and 11 were aggravated by the circumstance that his conduct was likely to cause a risk of physical danger to the occupants. He argued that the Crown had not established to the requisite standard that the applicant believed that the premises were occupied and that his action was likely to cause a real and immediate physical risk to the occupants.

The Crown’s submissions

86. The Crown submitted that the applicant conflated the common law and statutory aggravating factors. It contended that it submitted at the sentence hearing that:

1. the offending was aggravated at common law because of advertence to the actual or potential consequences of the offending to persons, who included the occupants of the premises which were firebombed; and

2. the offending was aggravated under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act (disregard for public safety) in respect of potential harm to other members of the public who might be in the vicinity.

Consideration

87. In the passage from the remarks on sentence set out above, his Honour referred to R v Teremoana (1990) 54 SASR 30 in support of the proposition that the applicant’s realisation that his conduct was likely to cause a risk of physical danger to the victim could be an aggravating factor at common law. This decision turned on an analysis of what was required for the “more serious offence”. In R v Teremoana the Full Court of the South Australian Supreme Court held that an offender’s foresight of the possibility of harm to persons when committing a fire damage offence could be taken into account in sentencing for a fire damage offence as long as the mental element falls short of the requisite mental element of a more serious offence (since otherwise there would be a breach of the De Simoni principle).

88. R v Teremoana is a useful illustration of the application of well-established principle. First, the matters of alleged aggravation (whether at common law or pursuant to the relevant statute) ought be identified. Secondly, any “more serious offence” must be identified to ascertain whether any of the circumstances of aggravation in the index offence would amount to elements of the more serious offence. If they would not, then they can be taken into account as aggravating factors in sentencing for the index offence. If they would, then the sentencing court may not take them into account as matters of aggravation, in order to comply with the De Simoni principle.

89. R v Teremoana has been cited with approval in authorities approved by this Court: Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183 at [26]-[30] (Howie J, James and Davies JJ agreeing). In Josefski v R, the applicant contended that the sentencing judge erred in taking into account, as an aggravating factor on sentence for aggravated break and enter contrary to s 112(2) of the Crimes Act, the emotional harm suffered by an elderly woman who was in the premises. This Court (Howie J, James J and Davies J agreeing) rejected the ground in the following terms at [41]:

"These were ordinary residential premises. It was night. The applicant ought to have foreseen that there might be persons in the premises. He ought to have foreseen that any person in the premises would be adversely affected by the conduct of his co-offender, to which he was a party, in smashing open the door of the premises with a sledgehammer. It would in my view bring the law into disrepute for the offender to avoid the harm inflicted upon a person in the house in that situation."

90. Given that the requisite aggravating factor at common law is the foresight of the possibility of harm, which involves advertence to risk, it was not necessary for the Crown to prove that the applicant actually knew the premises were occupied. As referred to above, such knowledge was an element of the offence under s 196 before the 1987 Amendment but was removed as an element by that amendment. In my view it was open to the sentencing judge, having regard to the evidence available with respect to counts 5 and 11, to find that the applicant realised that his conduct was likely to cause a risk of physical danger to the occupants and to regard this matter as increasing the seriousness of those offences.

91. His Honour took into account the applicant’s foresight of the possibility of harm to the victims in counts 5 and 11 in accordance with this principle. His Honour also accepted the Crown’s submission that the offences were aggravated by s 21A(2)(i) of the Crimes (Sentencing Procedure) Act in so far as there was a danger to public safety if the fire had spread. However, his Honour cited R v Chisari [2006] NSWCCA 19 at [28] (Simpson J, Beazley JA and Rothman J agreeing) in support of the proposition that the potential of harm to the direct victims of the offence was not comprehended by s 21A(2)(i) which related to the public at large.

92. Thus his Honour took into account that those of the fire damage offences which took place on residential premises were aggravated by the offender’s disregard for public safety (under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act) and that counts 5 and 11 were aggravated by the foreseeability of risk of harm to the victims (which is an aggravating factor at common law). No error has been demonstrated in his Honour’s approach. This ground has not been made out.

The sentencing judge erred in his assessment of the objective gravity involved in count 13 (ground 3)

The applicant’s submissions

93. The applicant took exception to his Honour’s description of his commission of the offence of recklessly causing grievous bodily harm in company as being “of a most serious kind”. He contended that the assault, although violent, was short-lived and lasted no more than 15 seconds; there was no permanent disability; the injuries though serious were not life-threatening; it was not coupled with a pervert justice offence; he had expressed remorse; and the offence could have been dealt with summarily.

Consideration

94. His Honour’s assessment of the objective seriousness of this offence was informed by the agreed statement of facts and the CCTV footage of the attack on the victim, as well as the surrounding circumstances that the offence was committed against the background of a commercial dispute over work at the victim’s restaurant.

95. The assessment of objective seriousness is pre-eminently a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282, Spigelman CJ at [37]; Simpson J at [46]. The question for this Court is whether the assessment was open to the sentencing judge. The offence was aggravated by the use of the knuckleduster and torch as weapons and the participation of the three persons acting in company. There was significant planning in carrying out the offence. The victim suffered serious injuries. His Honour’s description of the attack as “ferocious” was apposite. I am not persuaded that his Honour erred in assessing the objective seriousness of this offence.

The sentencing judge erred in failing to find special circumstances (ground 5)

The applicant’s submissions

96. The applicant submitted that the sentencing judge erred in failing to find special circumstances, having regard to the applicant’s prior good character and lack of criminal history, which meant that this was his first time in custody. The applicant also relied on his strong family support and his Honour’s finding that he had reasonable prospects of rehabilitation.

97. A finding of special circumstances is a matter for the sentencing judge’s discretion. Even if special circumstances are made out, the sentencing judge is not obliged to reduce the non-parole period and, indeed, is obliged not to reduce it below the minimum period of incarceration that is required in the circumstances: Caristo v R [2011] NSWCCA 7 at [26]-[31] (RA Hulme J, Giles JA and Adams J agreeing).

98. In my view his Honour was entitled to be satisfied that, having regard to the length of the sentence, the parole period would be adequate for the applicant's rehabilitation and no variation of the statutory ratio on the ground of special circumstances was warranted. As the applicant has not demonstrated error, this ground has not been made out.

Manifest excess (ground 6)

The applicant’s submissions

99. As referred to above the applicant contended that the indicative sentence for count 4 was excessive and that this, at least in part, accounted for what he alleged to be the manifestly excessive aggregate sentence. The applicant, in his submissions in this Court, described the sentence, without elaboration as “unduly harsh, severe and unfair”.

Consideration

100. The higher indicative sentence for count 4 arose, as his Honour explained in the remarks on sentence, from the circumstance that the applicant was successful in deterring the victims from proceeding with their civil claim against him. The consequences of an offence are relevant to its seriousness. I am not persuaded that there was any error in the sentence indicated for count 4.

101. In order to show that a sentence is manifestly excessive, an applicant must show that it is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). In the present case his Honour was sentencing the applicant for a number of offences which involved a number of different victims. There was a series of attacks directed at those who had made claims, against the applicant or his company, or their legal representatives. The offences individually and taken together demonstrated a high order of criminality. The offences constituted an attack not only on the property of the victims of the fire damage offences but also on their right to seek legal redress in this State’s courts and tribunals. The maximum penalty for each fire damage offence was 10 years’ imprisonment. The maximum penalty for each offence of pervert justice was 14 years. The applicant was found guilty at trial and there was no discount for any utilitarian benefit of a plea of guilty, save for count 13, in respect of which a discount of 12.5% for the plea was allowed. There was no warrant for special circumstances. The legislative guideposts for the offence against HNP were a maximum penalty of 14 years and a 5-year standard non-parole period. The offence of recklessly cause grievous bodily harm in company was objectively of a most serious kind for the reasons found by his Honour addressed above.

102. The applicant’s counsel cited sentencing statistics at length in support of his submission that the sentence was manifestly excessive. In addition to the usual limitations on the use of such statistics, there is, in the present case, a further limitation on their utility: they are of limited relevance in a sentence which involved repeat offending against different victims over an extended period. The statistics cited provide no warrant for concluding that the aggregate sentence imposed in the present case was manifestly excessive.

103. I am not persuaded that the sixth ground has been made out.

Proposed orders

104. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

105. BELLEW J: I agree with Adamson J.

**********

Amendments

04 August 2017 - Coversheet correction

16 August 2017 - Paragraph 79 amended

Decision last updated: 16 August 2017