King v Regina

[2011] NSWCCA 46

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	KING v REGINA [2011] NSWCCA 46
Hearing dates:	Wednesday 2 March 2011
Decision date:	24 March 2011
Before:	Hodgson JA at 1 Adams J at 2 Hall J at 3
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - whether sentence manifestly excessive - applicant on conditional bond at time of offence - offence contrary to s.112(1) malicious damage by fire of place of employment - damage in excess of $1.5 million - whether trial judge erred in not taking sufficiently into account subjective factors - whether use of the term "mid-range of objective seriousness" in error where there is no standard non-parole period - remarks on sentence addressed in detail objective and subjective factors - offence objectively very serious - applicant not truthful to the Court regarding his circumstances
Legislation Cited:	Crimes Act 1900
Cases Cited:	Hinchcliffe v Regina [2010] NSWCCA 306 House v The King (1936) 55 CLR 499 Regina v Cage [2006] NSWCCA 304 Regina v Gaudry & McDonald [2010] NSWCCA 70 Regina v Sivell [2009] NSWCCA 286 Regina v Way (2004) 60 NSWLR 168
Category:	Principal judgment
Parties:	Nelson Gary KING v REGINA
Representation:	Counsel: Crown: C Maxwell QC App: A Francis Solicitors: Crown: S Kavanagh App: S E O'Connor
File Number(s):	2008/11357
Decision under appeal	Date of Decision: 2008-10-02 00:00:00 Before: English DCJ File Number(s): 2008/11357

Judgment

1. HODGSON JA: I agree with Hall J.

1. ADAMS J: I agree with Hall J.

1. HALL J: The applicant, by way of notice dated 9 November 2010, seeks leave to appeal against a sentence imposed upon him in the District Court at Wagga Wagga (Her Honour Judge English) on 2 October 2009.

1. The applicant pleaded guilty to one count of break, enter and commit a serious indictable offence (malicious damage by fire) under s.112(1) of the Crimes Act 1900. An offence under that section carries a maximum penalty of 14 years.

1. The offence to which the applicant pleaded guilty in the Local Court was committed on 7 November 2007 at Wagga Wagga.

1. Earlier in the same year, namely, on 28 February 2007, the applicant appeared for sentence with respect to three offences, namely, enter building with intent to commit an indictable offence (s.114(1)(d) of the Crimes Act ), larceny (s.117 of the Crimes Act ) and malicious damage (s.195(1)(a) of the Crimes Act ).

1. In respect of those offences, the applicant was sentenced in the Local Court at Wagga Wagga for each offence to 18 months' imprisonment, suspended upon him entering into a conditional bond. The applicant breached the bond through the commission of the offence under s.112(1) on 7 December 2007.

1. The applicant consented to English DCJ dealing with the breach of the bond at the time of sentencing him in respect of the offence under s.112(1). Her Honour revoked the bond and imposed a non-parole period of 12 months and a parole period of 6 months to date from 18 March 2008. The non-parole period expired on 17 March 2009. The head sentence expired on 17 September 2009.

1. In respect of the offence committed under s.112(1) on 7 December 2007, the applicant was sentenced to a non-parole period of 3 years commencing 18 March 2009 to expire on 17 March 2012 with a balance of term of 3 years, 3 months and 18 days commencing 18 March 2012 and expiring on 5 July 2015.

1. In the present application, the applicant relied upon only one ground of appeal, namely, that the sentence imposed in respect of the offence under s.112(1) of the Crimes Act is manifestly excessive.

Facts

1. In the remarks on sentence, the sentencing judge referred to the factual matters relating to the offence in the following terms:-

"In the early hours of 7 December 2007, a large fire was discovered at the premises of Riverina Laundry and Linen Service at 5 Saxon Street, Wagga Wagga. The owner of this business is Martin Tapfield.

The fire brigade attended and extinguished the blaze. However, damage to the value of 1.6 million dollars was occasioned to the building and its contents.

At that date the offender had been employed by the Riverina Laundry and Linen Service for a period of three years.

Forensic police and fire investigators attended the scene and it became apparent that the fire had been deliberately lit as there were three separate seats of fire in various parts of the building.

The building in which the fire occurred is a large shed-type building constructed mainly of corrugated iron. It contained large washing machines and dryers and an almost new automated ironing machine which was worth $630,000.

There was also a large amount of linen such as sheets and towels which were destroyed.

The plant and equipment was covered by insurance. The linen, which was the property of the business, was not insured to its full value.

The building had been secured by the owner when he left the premises the previous evening. All employees of the business were interviewed by police immediately after the fire. The offender was one of those persons interviewed and said that he had been at home asleep with his fiance the morning of the fire.

Some days after the investigation commenced, a point of entry to the building was located. The manager of the business, James Tapfield, showed police an area where a corrugated iron sheet had been lifted up and out to allow access to an interior locking pin which was used to secure a back door of the building. The sheet of iron had been replaced in position. However, three screws used to secure the sheet had not been replaced.

A subsequent examination of the point of entry to the shed by fingerprint experts identified fingerprints on the underside of the sheet of iron where fingers would have been placed to pull the sheet up and out. Some of those fingerprints were identified as those of this offender and the fingerprints were not positioned where they could have been left by the offender in the course of his employment."

1. The sentencing judge referred to the fact that an acquaintance of the offender had made a report to police that the applicant had been talking about the fire. A warrant was issued authorising the installation of a listening and recording device. A recording was made which included an admission by the applicant of having broken into and setting fire to his work premises.

1. On 18 March 2008, the applicant was arrested and remained in custody thereafter.

1. Compensation was sought by the Government Insurance Office of NSW in the sum of $1,553,228.66. The owner of the business was seeking compensation in the amount of $80,000, said to be the amount of his loss not covered by his business insurance. The sentencing judge declined to order compensation.

The sentencing hearing

1. In the remarks on sentence, the sentencing judge referred to the applicant's evidence given by him at the hearing. He gave an account that on 7 December 2007, he finished work at about 3.00 or 3.30 pm. He was with a friend and they were drinking during the afternoon. He said that he arrived home at approximately 11.45 pm and said that he had a shower and went to bed.

1. He claimed that he could not sleep, obtained some more alcohol and went for a drive.

1. He gave evidence that, prior to this time, his brother had passed away and he was very angry and confused. The sentencing judge noted that his brother, in fact, died after the fire on 14 December 2007, a fact which her Honour noted could not have been something he forgot.

1. He claimed to be angry and confused about his boss not treating him properly. In evidence, he gave an account of driving to the work place with the intention of trashing it. He intended to throw things around and make a mess. He damaged a work van and threw sheets around and pushed trolleys over. He said that he could recall a big flame and that he became scared and ran. His evidence was that he did not go to the premises with the intention of starting a fire.

Sentencing judge's findings

1. In respect of the objective circumstances of the offence, the sentencing judge observed (remarks on sentence, pp.11 to 12):-

"... The offence with which the offender has been charged is, of course, objectively very serious, resulting in substantial financial loss to an insurer and an owner of goods who was under-insured. It is an offence attracting a maximum penalty of fourteen years imprisonment. ... The serious indictable offence committed, once he broke and entered those premises, is one of the most serious in the criminal calendar for offences committed within this particular section of the Crimes Act with the exception perhaps of sexual assault type matters.

The motive for entering the premises was one of causing disruption to his employer with whom he was disgruntled. As to why he lit the fires, it is difficult to understand. But when one looks at his background and his emotional immaturity, his offending behaviour is no doubt linked, in some way, to his upbringing and his inability to control his emotions.

I am satisfied beyond reasonable doubt that his motivation was to seek to punish his employer, with whom he says he had a grievance, at the way he had been treated since appearing in the Local Court and being placed on the suspended sentence. I am not persuaded that the death of his brother had any impact upon him at the time he committed this offence. There can be no dispute his brother was killed seven days after this event ... Nor am I persuaded that the miscarriage suffered by his girlfriend a week or so prior to this fire had any impact upon his emotional wellbeing sufficient to cause him to consume an excessive quantity of alcohol and to commit this most serious offence.

The fire had a potential to cause significant damage to other premises in addition to the premises damaged. Perhaps, fortunately, in the early hours of the morning, few people would have been around. But certainly the lives of the fire crew who attended were put at risk. This was a dry cleaning business which no doubt had stores of cleaning products or chemicals which would have been highly inflammable."

1. The sentencing judge stated that there could be no doubt whatsoever that the applicant's actions in setting fire to the premises were deliberate, in as much as he lit three seats of fire to ensure that the premises burned. Her Honour added:-

"... It may well be that his original intention was not to set fire to the place, but certainly by the time he did, he was demonstrating recklessness of a very high order if his intention was indeed, as he simply stated, to 'trash' the premises."

1. The sentencing judge reviewed in some detail the relevant subjective factors. Her Honour noted that he was 23 years of age at the time of sentence. He had been referred to a Ms Kristie Gillespie, a psychologist, for assessment by his solicitor.

1. The sentencing judge also noted that the applicant had been brought up in a physically and emotionally abusive family and suffered greatly at the hands of both parents, both of whom had significant drug and alcohol problems.

1. He was diagnosed with ADHD at the age of six and was prescribed Dexamphetamine. He gave a history of poor concentration, was fidgety and easily frustrated, hyperactive and impulsive. The medication when taken apparently helped him manage his symptoms.

1. The sentencing judge noted, however, that he was reported as demonstrating poor compliance with his medication regime. In consequence, his education had been adversely affected and resulted in his expulsion from school in Year 9. He has since completed the Year 10 School Certificate through a Juvenile Justice programme.

1. The applicant gave a history to Ms Gillespie of issues with his employer, who was the victim of the fire. He stated that he thought his employer was humiliating him and embarrassing him in front of customers. He also said he was angry about unfair work conditions.

1. The sentencing judge also had regard to the results of intelligence testing by Ms Gillespie which disclosed an IQ in the average range, although at the low end. His verbal IQ and performance scale IQ were noted as being at the lower end of the average range. He displayed poor general knowledge and his working memory and processing speeds were said to be particularly poor, a likely reflection, her Honour noted, of his limited education and lack of exposure to learning.

1. It was noted that the applicant had been diagnosed with Erland Syndrome, which is a visual perception processing problem often misdiagnosed as dyslexia.

1. The sentencing judge further observed that the applicant met the criteria for someone suffering from post-traumatic stress disorder as a result of his childhood. Ms Gillespie expressed the opinion that he is profoundly emotionally disturbed as a result of his childhood trauma and abuse and requires significance assistance.

1. The sentencing judge rejected his evidence that he had no recall of the events in light of the electronically recorded material that disclosed a significant memory of his actions at the time that he lit the fires and how damage was caused.

1. Aggravating factors were said to be, firstly, the damage as a result of the offences which was substantial and, secondly, the fact that the applicant was on conditional liberty at the time.

1. Her Honour noted that the applicant's criminal antecedents, though not aggravating the offence, precluded any leniency that might otherwise be extended to him.

1. Her Honour allowed, by way of mitigation for the applicant's plea of guilty, a discount of 10%.

1. Her Honour stated that she was unable to find the applicant remorseful or contrite and that his prospects for rehabilitation were only fair. She considered that he had been less than truthful with the psychologist and had also misled the Court.

1. A finding of special circumstances was made.

The ground of appeal - sentence manifestly excessive

1. Ms A Francis, of counsel who appeared on behalf of the applicant, accepted that the facts were undeniably serious and that personal deterrence loomed large as a consideration in sentencing. The applicant's submissions, however, also emphasised in detail the relevant subjective factors, being those to which the sentencing judge herself referred.

1. In support of the ground of appeal, attention was drawn to the sentencing judge's determination of the objective seriousness of the offence. In remarks on sentence (p.15), her Honour stated:-

"The matter is one which falls at the mid-range of objective seriousness, if not above it, having regard to the extent of the damage sustained, the lives put at risk, and here I am referring to the members of the Fire Brigade, not the members of the public at large, having regard to the time at which the fire was lit, and to the deliberateness of his actions."

1. It was argued on behalf of the applicant that the finding that the offence fell "at the mid-range of objective seriousness, if not above it" meant the starting point was, no doubt, on account of this finding at the mid-point, by reference to the maximum penalty. The starting point, it was said, was 7 years as against a maximum penalty of 14 years.

1. It was submitted on behalf of the applicant that this analysis of objective seriousness falls foul of the observations made by McClellan CJ at CL and Fullerton J in Regina v Sivell [2009] NSWCCA 286.

1. Accordingly, the argument was that the error in the result was that the head sentence reflected no amelioration in penalty on account of the applicant's subjective case and as a consequence the sentence was manifestly excessive. It was emphasised that the error that had arisen was consequential upon imposing a starting point constrained solely by objective criteria.

1. In her oral submissions, Ms Frances contended that the starting point of 7 years was "demonstrable of latent error" .

1. Ms Francis also emphasised that, whilst the criminality involved in the offence warranted the imposition of a significant period of imprisonment, nonetheless the sentence was one that had to reflect the powerful subjective circumstances found by the sentencing judge which included the fact that the applicant was profoundly emotionally disturbed and that he met the criteria for adult ADHD: transcript, 2 March 2011, p.2.

1. Whilst no specific complaint was made in relation to the non-parole period of 3 years, Ms Francis, nonetheless, contended that if this Court were minded to intervene in relation to the head sentence, then that may result in a need to intervene in relation to the effective non-parole period. However, if that occurred, it was argued, the same ratio (50% of the head sentence) should apply.

1. On behalf of the Crown it was contended that her Honour's use of the phrase "mid-range of objective seriousness, if not above it" in the circumstances of this case was without significance. The Crown contended that the sentencing judge was clearly aware that she was not sentencing the applicant for a stated non-parole period. At the most, her Honour's finding that the offence fell into the mid-range was unnecessary but not indicative of any error.

1. As the Crown observed, a determination of where on the scale of criminality an offence lies is considered an essential part of the sentencing process, whether or not the offence attracts a standard non-parole period: Regina v Way (2004) 60 NSWLR 168 at [77]; Regina v Cage [2006] NSWCCA 304 at [18]; Hinchcliffe v Regina [2010] NSWCCA 306 at [31].

1. The Crown further referred to the observations made by Fullerton J in Sivell (supra) at [32].

1. The Crown's submission was that an assessment of objective seriousness involved an evaluation akin to fact finding or the exercise of a discretion, only reviewable on the basis stated in House v The King (1936) 55 CLR 499, regardless of whether or not the offence in question attracts a standard non-parole period: Regina v Gaudry & McDonald [2010] NSWCCA 70 at [45].

1. It was the Crown's contention that the head sentence had not been demonstrated as having been manifestly excessive. In particular, the remarks on sentence were said to indicate that there had been a full analysis of all subjective matters and that these had been taken into account in determining the head sentence.

Conclusion

1. The remarks on sentence, in my opinion, demonstrate close attention by the sentencing judge to all relevant objective and subjective factors. I do not consider that the trial judge's use of the terminology associated with a standard non-parole period indicates either specific or latent error when seen in context of the overall analysis taken by her Honour.

1. The offence was objectively a very serious one and it is abundantly clear that the sentencing judge was mindful of the applicant's unfortunate personal background and circumstances. Her Honour, however, also noted in making her assessment that the applicant had not been completely truthful either with the psychologist or with the Court and had not demonstrated any remorse and that his prospects for rehabilitation were only fair.

1. As the Crown observed, the sentencing judge adopted a generous approach in imposing a non-parole period that constituted less than 50% (approximately 48%) of the term of the sentence.

1. I do not consider either latent or specific sentencing error has been established. I do not consider that the sentence imposed was manifestly excessive.

1. Accordingly, the orders I propose are:-

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

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Decision last updated: 25 March 2011