Liddell v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0188

AARON LIDDELL	Appellant
v
THE KING	Respondent

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JUDGES:	McLEISH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2024
DATE OF JUDGMENT:	5 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 18
JUDGMENT APPEALED FROM:	[2022] VCC 2011 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – One charge of arson with intent to endanger life – Two charges of intentionally causing injury – Total effective sentence 9 years 6 months – Non-parole period 6 years 6 months – Base sentence for arson with intent to endanger life 8 years – Appellant lit fire in occupied house in early hours of morning – Premeditated attack – Use of accelerant on staircase of house – Whether base sentence for arson with intent to endanger life manifestly excessive – Current sentencing practices only one factor to consider – Decided cases reveal disparate circumstances and sentencing outcomes – Offending at upper end of seriousness – Appellant had poor prospects of rehabilitation and high moral culpability – Need for community protection – Base sentence within range – Total effective sentence and non-parole period within range – Appeal dismissed.

Crimes Act 1958, ss 197(2), 197(6).

DPP v Dalgliesh (2017) 262 CLR 428, applied. DPP v Wang [2021] VCC 1570; DPP v Islam [2019] VCC 217; Maher v The Queen [2011] VSCA 136; BBA v The Queen [2010] VSCA 174; DPP v Roberts [2006] VSC 122; DPP v Hayman [2003] VSC 295; R v Matheas [2003] VSC 221, considered.

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Counsel
Appellant:		Mr D Sala
Respondent:		Mr G Buchhorn
Solicitors
Appellant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
WALKER JA:

The appellant was sentenced on 16 November 2022 to a total effective sentence of nine years and six months’ imprisonment on three charges to which he had pleaded guilty. The base sentence of eight years’ imprisonment was imposed for the offence of arson with intent to endanger life, contrary to s 197(2) and (6) of the Crimes Act 1958. The overall sentencing disposition was as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Arson with intent to endanger life (Crimes Act 1958, ss 197(2) and (6))	15 years	8 years	Base
2	Causing injury intentionally (Crimes Act 1958, s 18)	10 years	4 years	12 months
3	Causing injury intentionally (Crimes Act 1958, s 18)	10 years	1 year 9 months	6 months
Total effective sentence		9 years 6 months
Non-parole period		6 years 6 months
Pre-sentence detention declared		100 days
Section 6AAA statement		Total effective sentence 11 years 6 months Non-parole period 8 years 6 months

Offending

The appellant had been living at a property in Bundoora since mid-2019. The property contained a building, which was leased to a number of tenants who each had individual rooms. It was a two-storey brick house, with three bedrooms, a kitchen and laundry on the ground floor and a further four bedrooms, kitchen, living and dining room, bathroom and laundry on the first floor. There were two exits from the first floor, one through a back door leading onto a rear deck and the other through the front door.
The appellant had moved into the property sometime after being discharged from Thomas Embling Hospital in July 2019. His stay at the property had been problematic and the owner had attempted to bring the tenancy to an end. He was evicted on 13 February 2020 and left the premises.
On 13 February 2020, police were called after the appellant smashed some windows at the property, following which he was evicted. This conduct did not form part of the offences with which he was charged. The smashed windows left the house accessible without a key.
In the early hours of 15 February 2020, at about 3 am, the appellant entered the property while the residents were asleep. There were three residents asleep on the upper level and two on the ground floor. The appellant knew that the house was occupied and knew its layout. He poured accelerant within the premises and lit a fire, then left without making any attempt to awaken the residents or raising any alarm. Much of the accelerant was poured at the top of the stairs.
The fire engulfed the top floor of the premises. The charge of arson with intent to endanger life was a rolled-up charge relating to the three residents who were asleep in the upper level of the building. Lakshay Bhargava woke to the smell of burning. He opened his bedroom door and saw flames in the area. The heat was intense and smoke was pouring into his room. He was having difficulty breathing. He jumped from the second storey window, having no other way out of the house. He saw the appellant in front of the premises watching the blaze. The appellant said words to the effect, ‘Oh, that’s fine’, before turning and walking away in a casual manner.
Vimanga Malwaththage was asleep in another bedroom upstairs. He too awoke to find that he was having difficulty breathing. He heard glass breaking and went to his bedroom door where he found that the hallway was ablaze. He tried to alert his neighbour, Isuru Nalawattha, by banging on the wall they shared. He opened his door to see if he could see Mr Nalawattha and spotted him but was forced to shut the door as smoke was pouring into the room. Mr Malwaththage shut the door and wet a t-shirt, with which he covered his head. He jumped out his window, handling the hot window frame in the process, which caused burns to his hands. Upon escaping, he screamed for help for Mr Nalawattha, who he believed was still trapped in the house.
Mr Nalawattha was awoken by the screams of Mr Malwaththage. He went to his bedroom door and saw that the house was on fire. It was hard to breathe and he could smell smoke and petrol. He went through the back door on the first floor leading to the deck. He had to use both hands to force open a metal security door, which was very hot due to the fire. He received burns to both hands as he did so, before running down the stairs and into the backyard.
Police arrived shortly thereafter and observed that the entire first floor of the building was engulfed by flames.
As a result of the fire, Mr Nalawattha received significant burns to both hands and burns to his face including his forehead, left cheek, lips and both ears. The burns to his hands required surgery and he remained in hospital for about six days. The burns to the palms of his hands were mid-dermal in depth. Despite the medical treatment he received, it remained possible at the time of the plea that he would experience scarring, contracture, functional impairment and/or sensory disturbance in his hands, which might further impact his work and his day-to-day life. These injuries were the basis for charge 2, intentionally causing injury.
Mr Malwaththage received burns to eight of his fingers as well as his left forearm. This was the basis for charge 3, intentionally causing injury.
Police inspected the property later that day and discovered evidence of a number of accelerants, including:
(a)an uncapped four-litre kerosene bottle in the garage on the ground level, containing about three millilitres of liquid;
(b)an uncapped, empty, partly melted half-litre plastic bottle, labelled as containing acetone, on the landing between the first-floor balustrade and the wall;
(c)an uncapped, partly melted empty four‑litre kerosene bottle, inside the main front door on the first floor; and
(d)an empty uncapped half-litre acetone bottle on the floor beneath the table in the first-floor kitchen.
Kerosene was detected in the undamaged kerosene bottle found in the garage, on the skirting board on the staircase and in the partly melted plastic bottle located near the front door. Evaporated kerosene was detected on a mat from the doorway between the kitchen and the garage. Acetone with traces of kerosene was detected on a mat from the front centre first-floor bedroom and the partly melted acetone bottle from the stairwell. Acetone was detected in the bottle under the kitchen table.
The cause of the fire was the ignition of combustible material in the stairwell, assisted by the presence of both kerosene and acetone. The combustible material included a cushion, a coffee table, the stairwell balustrade and the fixtures and fittings in the stairwell. The pattern of damage suggested that flammable liquid had been poured about the stairwell and on the top few stairs. There was no indication that kerosene or acetone had been poured in any other rooms or in the garage.

Appeal

Leave to appeal against sentence was granted on the single ground that the sentence on the charge of arson with intent to endanger life, as well as the total effective sentence and the non-parole period, were manifestly excessive. No issue is taken with the reasons of the sentencing judge, or with any of the findings which he made in the course of passing sentence.

Sentencing remarks

After describing the offending, the sentencing judge referred to two victim impact statements. Mr Nalawattha suffered significant burns and scarring to his hands and face. He also suffered emotionally and financially and was unable to undertake his usual work as a cleaner. The owner of the property had suffered a significant financial loss as a result of the offending.[1]
[1]DPP v Liddell [2022] VCC 2011 [28]–[29] (Judge Tinney) (‘Sentencing Remarks’).
The judge referred to the appellant’s background. At the time of the offending, he was about 38 years of age. His parents had separated when he was about four years old. He was made a ward of the state when aged about 13 and his schooling was fragmented. He subsequently worked mainly as a labourer or courier driver, but not for very long. He was in receipt of the disability support pension and had a longstanding problem with illegal drugs.[2]
[2]Ibid [44].
The appellant had serious mental health issues. He had suffered from schizophrenia for many years but was ‘relatively insightless’ in respect of that condition. He chose not to take medication that he had been prescribed, but used illegal drugs instead, in the belief that they would not impact upon his mental health. The judge said that the appellant had been resistant to any treatment when in the community and also while in prison, even though it was clear to those treating him that his condition substantially improved when he accepted treatment.[3]
[3]Ibid [45].
The appellant had a significant criminal history involving offences of varying levels of seriousness, but nothing as serious as the offences for which he was being sentenced. He had been found guilty of assaulting emergency workers and of a range of drug and dishonesty offences. He had breached a number of court orders and been sent to prison several times, including once with a non-parole period. He had refused to take appropriate medication in prison and had made it clear that he would probably refuse to be medicated or treated if he were released, and would continue to use illegal drugs.[4]
[4]Ibid [46]–[47].
The judge said that the appellant’s personal background fell short of the level of very significant disadvantage which the courts sometimes see, although his upbringing was plainly not enviable. The judge said that the social disadvantage which the appellant had suffered did not explain the offending.[5] However, he took it into account ‘in a general way’ without any sizeable reduction in the appellant’s moral culpability or in the weight to be given to general and specific deterrence.[6]
[5]Ibid [48]–[49].
[6]Ibid [51].
The judge accepted that the appellant’s plea of guilty was neither early nor late. The appellant had run a contested committal hearing. The judge was prepared, however, to treat the plea as ‘a relatively early taking of responsibility’ for the offending, as a result of which a trial had not been required and the course of justice had been facilitated.[7] The judge noted the extra weight to be given to the plea on the basis of the COVID pandemic.[8]
[7]Ibid [55].
[8]Ibid [56], citing Worboyes v The Queen [2021] VSCA 169.
The judge was only prepared to find ‘some quite limited remorse’, which was ‘at best, very basic’. He took this into account in the appellant’s favour. The judge was ‘guarded’ as to the appellant’s future prospects of rehabilitation. He considered that the lack of insight on the part of the appellant and his refusal to acknowledge that he had any real illness or needed any treatment or medication were unlikely to change. He accepted that there should be some moderation of specific deterrence, given the appellant’s mental condition. But the risk of relapse in his mental condition was high. The prospect of the appellant developing insight into his illness and the need to take medication, as well as the need to abstain from illegal drug use, was ‘not at all promising’. The judge concluded that the appellant’s prospects were ‘relatively poor’ and that there was ‘a decent risk of offending in the future’.[9]
[9]Sentencing Remarks [57]–[62].
Addressing the appellant’s mental health condition in greater detail, the judge was not satisfied on the balance of probabilities that the appellant was acting pursuant to a command or auditory hallucination when he offended. There was, however, a realistic connection between his mental health and the offending. His deteriorating mental health had a role in reducing his ability to exercise appropriate judgment. The judge made some allowance for reducing the appellant’s moral culpability, applying the first limb of Verdins v The Queen.[10]
[10]Ibid [77]–[82], citing Verdins v The Queen (2007) 16 VR 269.
He also moderated the weight to be given to general and specific deterrence, although they were ‘far from eliminated’. The judge said that he could not ignore the fact that the appellant destabilised his own mental health by not accepting treatment or medication and by using illegal drugs. This meant that the level of risk that he posed would continue into the future. Community protection was therefore an important sentencing purpose. The judge did not apply the fifth or sixth limbs of Verdins. He did, however, take into account the increased burden imposed on prisoners generally as a result of the COVID pandemic.[11]
[11]Sentencing Remarks [82]–[84].
In summary, the judge described it as ‘a bit hard to imagine a much more serious example of this crime’. He stated that he had reviewed previous cases to which he had been referred (namely Maher v The Queen (‘Maher’)[12] and Director of Public Prosecutions v Chidwick (‘Chidwick’)),[13] as well as some other cases. He did not regard any of them as being on all fours with the present case, noting that in any event, other cases were not precedents and did not drive the sentencing task.[14]
[12][2011] VSCA 136.
[13][2019] VCC 197.
[14]Sentencing Remarks [107].
The judge described the arson charge as a grave example of the crime of arson with intent to endanger life. It involved three victims and fell ‘towards the upper end in terms of the objective seriousness of the offence’.[15]
[15]Ibid [109].

Appellant’s submissions

Mindful of the truism that the question of manifest excess often does not admit of lengthy argument, counsel for the appellant focused his submissions on current sentencing practices for the offence of arson with intent to endanger life. The appellant’s written submissions focused on three cases, two of which — Maher and Chidwick — had been drawn to the sentencing judge’s attention.
In Director of Public Prosecutions v Hayes (‘Hayes’),[16] the offender pleaded guilty to three charges of arson causing death, which carries a maximum penalty of 25 years’ imprisonment.[17] In respect of each offence, she was sentenced to a term of imprisonment of seven years.[18] Conceding that there were many significant features in mitigation in that case, the appellant submitted that the offending in Hayes was substantially more serious, but her sentence on each charge was less than that imposed on the appellant.
[16][2022] VSC 679.
[17]Crimes Act 1958, s 197A.
[18]Hayes [2022] VSC 679 [92]–[94] (Hollingworth J).
Secondly, in Chidwick, the offender smashed a window in the car of his partner’s former partner, which was parked beside the house in which he and his two children were sleeping. He poured petrol into the car and ignited it. The car exploded and the ensuing fire spread into the carport, damaging the house. About a month later the offender returned to light a second fire, which destroyed the house, which was unoccupied at the time. He had a prior conviction for an arson offence. The sentence imposed on each arson charge was four years and nine months’ imprisonment.[19] There was no charge of arson with intent to endanger life.
[19]Chidwick [2019] VCC 197 [37], [40] (Judge Mullaly).
Thirdly, in Maher, the victims were a previous intimate partner of the offender, her mother and their child. The offender threw a Molotov cocktail into the lounge room where they were watching television. The sentence imposed (on appeal) for arson with intent to endanger life was four years’ imprisonment.[20]
[20]Maher [2011] VSCA 136 [45] (Ashley JA, Bongiorno JA agreeing at [48]).
The appellant submitted that, although there was no injury caused in either Chidwick or Maher, it was also the case that neither of those offenders had a mental illness as profound as that of the appellant. He submitted that the family violence context, and the presence of children, aggravated the offending in these cases.
In oral argument, other authorities were canvassed, in particular Director of Public Prosecutions v Islam (‘Islam’).[21] Like the present case, the judge in Islam imposed a sentence of eight years’ imprisonment.[22] It was noted that this is currently the highest sentence imposed for the offence of arson with intent to endanger life. In Islam, there were 39 victims who were in a bank in which the offender lit the fire in question. The appellant accepted that the offender in that case had no prior convictions, but submitted that the case was more serious because there were vastly more persons endangered; there were also 11 charges of recklessly causing injury and four charges of recklessly causing serious injury.
[21][2019] VCC 217.
[22]Ibid [79] (Judge Mason).
The appellant did not allege specific error on the part of the sentencing judge, but submitted that the fact that the sentence did not reflect current sentencing practices meant that it was manifestly excessive.

Respondent’s submissions

The respondent drew attention to seven cases which it was said appeared to be the only sentences imposed for arson with intent to endanger life.[23] While directing submissions to those cases, counsel for the respondent emphasised that the range available was not defined by comparable cases,[24] especially where an offence had come before the courts only on limited occasions.
[23]See below [43]–[51].
[24]DPP v Dalgliesh (2017) 262 CLR 428, 434 [9], 450 [68] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gordon and Gageler JJ) (‘Dalgliesh’).
The respondent said that caution had to be exercised when using sentences for different offences as a basis of comparison. In particular, the offences in Hayes did not have as an essential element an intent to endanger life. The offender in that case had been unaware that anyone was present when she lit the fire. She also pleaded guilty early with genuine remorse. Her moral culpability was reduced through significantly disadvantaged childhood circumstances and she had no history of violence or serious criminal offending.

The respondent submitted that Chidwick, which was a case of arson, rather than arson intending to endanger life, was a quite different case to the present one. It involved setting fire to a car, with the fire then spreading to the intended victim’s house and a neighbouring house and, later, setting fire to the victim’s house while it was unoccupied. Similarly, the respondent sought to distinguish Maher. In that case the offender was 24 years old with no prior convictions and had taken significant rehabilitative steps. The respondent submitted that, while the present sentence sat high among current sentencing practices, that was where it was properly expected to be.

Consideration

The question on the appeal is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[25] The appellant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[26] An allegation of manifest excess is an example of a challenge to the exercise of a discretion, which does not depend on specific error, as articulated in House v The King:[27]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[28]
[25]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
[26]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[27](1936) 55 CLR 499.
[28]Ibid 504–5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370-1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
As indicated, the parties’ submissions were substantially focussed on current sentencing practice for the offence of arson with intent to endanger life, together with reference to cases involving arson offences which were said to be comparable and to shed light on the range of sentencing dispositions available in the present case.
Section 5(2) of the Sentencing Act 1991 requires a sentencing court to have regard to a series of matters in sentencing an offender. One such matter is ‘current sentencing practices’: s 5(2)(b). As Kiefel CJ, Bell and Keane JJ observed in Dalgliesh, that section informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in the application of relevant legal principles governing sentencing should be maintained as an aspect of the rule of law.[29]
[29]Dalgliesh (2017) 262 CLR 428, 445 [50] (Kiefel CJ, Bell and Keane JJ),
Of course, within the instinctive synthesis by which the court takes account of each of the relevant factors in the process of determining an appropriate sentence, no single factor is controlling. In particular, current sentencing practices are not controlling.[30]
[30]Ibid 434 [9] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ).
The fact that current sentencing practices are not controlling means that the sentencing judge is not required to adhere to any range of sentences set by comparable cases.[31] Equally, individual sentences imposed in past cases are just that; they are not precedents which must be applied to future cases.[32] Nonetheless, they may serve as a ‘yardstick’ that illustrates, but does not define, the possible range of sentences available.[33]
[31]Ibid 444 [48], 445 [50] (Kiefel CJ, Bell and Keane JJ), 453–4 [81]–[83] (Gageler and Gordon JJ).
[32]Wong v The Queen (2001) 207 CLR 584, 605 [57] (Gaudron, Gummow and Hayne JJ); ibid 454 [83] (Gageler and Gordon JJ).
[33]R v Pham (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ).
It follows that the question of manifest excess is not determined by concentrating on current sentencing practices in isolation. They are at most one relevant consideration. We shall, however, start by referring to this aspect of the case.
The seven cases of arson with intent to endanger life to which the parties referred on the appeal reveal a disparate array of sentences, offending and personal characteristics of the offenders.[34] The cases range over approximately 20 years, with only two in the last decade. Several involved suspended prison sentences and community based orders, but four were cases of imprisonment alone, for periods of between four and eight years for each charge of arson.
[34]DPP v Wang [2021] VCC 1570; Islam [2019] VCC 217; Maher [2011] VSCA 136; BBA v The Queen [2010] VSCA 174; DPP v Roberts [2006] VSC 122; DPP v Hayman [2003] VSC 295; R v Matheas [2003] VSC 221.
The low number of cases of arson with intent to endanger life, only two of which were decided in the last 10 years, raises a real doubt as to whether there is any ‘current sentencing practice’ at all. There was also some discussion in oral argument as to whether there had been any changes in community values, especially surrounding family violence, over the period under examination. If so, that would tend against regarding the older sentences as reflecting any current practice. But it is not necessary to decide these questions. We proceed on the agreed basis that it is appropriate, and desirable, for us to have been referred to past sentences, and to have regard to them.
The most recent decision to which we were taken was Director of Public Prosecutions v Wang (‘Wang’),[35] in which the offender set fire to bedding in his bedroom, in a house where five other people were sleeping. They were the family of a friend of the offender’s father, who had offered him short-term accommodation. No accelerant was used and the fire was largely contained to the offender’s bedroom. He told police he had wanted to kill the other occupants. The sentencing judge found that this comment had to be understood in light of the offender’s deteriorating mental health at the time. She held that his psychiatric history, including his borderline personality and depressive disorders, enlivened the Verdins principles. There was an early guilty plea. The offender was aged 23 and was found to have strong prospects of rehabilitation. He had no history of drug or alcohol abuse. A sentence of 320 days’ imprisonment was imposed, followed by a three-year community correction order.[36]
[35][2021] VCC 1570.
[36]Ibid [62] (Judge Chambers).
Islam has already been briefly mentioned. That offender poured petrol on the ground in a crowded bank and ignited it. Four of the 39 people in the bank suffered serious injuries, which attracted significant sentences, and there were multiple other cases of injury. The offender himself sustained burns to about 60 per cent of his body; almost his whole body was permanently scarred as a result; this was a significant feature in mitigation. He was 21 years old with no prior convictions and occasionally used illicit drugs. The judge was ‘guarded’ as to his prospects of rehabilitation. No Verdins issues arose. On the arson with intent to endanger life charge, a sentence of eight years was imposed.[37]
[37]Islam [2019] VCC 217 [79] (Judge Mason).
These were the two sentences imposed since 2019. We were also taken to several sentences imposed a decade or more ago. In Maher, a sentence imposed in 2011, the offender threw Molotov cocktails into the rear yard of a house and through a window into the lounge room in which his former intimate partner, their child and her mother, along with another person, were watching television. This conduct also breached an intervention order. The offender, aged 24, had a significant personality disorder and problems with drug and alcohol abuse, but no psychotic illness. He had no prior convictions and was said to have prospects of rehabilitation. This Court, resentencing after having found specific error, imposed a sentence of four years’ imprisonment.[38]
[38]Maher [2011] VSCA 136 [45] (Ashley JA, Bongiorno JA agreeing at [48]).
BBA v The Queen (‘BBA’),[39] decided in 2010, was a quite different case. The offender drugged and raped his wife and then, while she was unconscious, doused the bedroom with petrol and set fire to the room. The wife awoke and managed to escape through a window. The sentencing judge imposed a term of five years’ imprisonment on the arson charge and a total effective sentence of nine years (which included another instance of rape). The offender made full admissions and had reconciled with his wife. At the time of his early guilty plea he was aged 53, and he had no prior convictions. In rejecting a manifest excess argument, this Court described the overall sentence as ‘moderate’.[40]
[39][2010] VSCA 174.
[40]Ibid [26] (Maxwell P and Weinberg JA).
In Director of Public Prosecutions v Roberts (‘Roberts’),[41] decided in 2006, the offender lit a fire in the unoccupied bedroom of one of his two daughters. He had a history of schizophrenia and was in a paranoid state at the time, having tried to kill himself earlier in the day. When he realised what he had done, he helped his daughters escape and made full admissions to police. He indicated that he intended to endanger his daughter’s lives while in his paranoid state, and that he had wanted to die in the fire. The offender in that case had insight into his actions, showed great remorse and had since abstained from alcohol. His psychosis had been properly addressed after the offence and his mental state had stabilised such that his prognosis was good. On two counts of arson with intent to endanger life, a suspended term of 18 months’ imprisonment was imposed together with a two-year community based order.[42]
[41][2006] VSC 122.
[42]Ibid [5] (Kellam J).
Director of Public Prosecutions v Hayman (‘Hayman’),[43] decided in 2003, was rather similar. The offender, again in a psychotic state, triggered by his use of cannabis, placed liquid propane gas cylinders in the lounge room of a house in which his estranged wife and their children were sleeping. He lit a number of candles and placed them nearby, later telling his wife that he intended the whole family to die in a fire as a result. He had no criminal history and had never previously been abusive towards his family. This offender too was deeply remorseful, had since received treatment for psychosis, and had desisted from cannabis use, as a result of which his mental state was normal and stable. Comparably to Roberts, a suspended term of three years’ imprisonment was imposed together with a two-year community based order.[44]
[43][2003] VSC 295.
[44]Ibid [25] (Cummins J).
Finally, in Matheas v The Queen (‘Matheas’),[45] also decided in 2003, the offender broke a bedroom window in which two members of a family were sleeping and then threw a marine flare through the window. It set fire to the curtains. The occupants of the house were woken by the noise and ensuing smoke and the fire was contained. The offender was aged 27, with borderline intelligence and inauspicious prospects of rehabilitation. This Court rejected an argument that the sentence of 4 years 6 months’ imprisonment on a charge of arson with intent to endanger life was manifestly excessive.[46]
[45][2003] VSCA 221.
[46]Ibid [22] (Winneke P, Vincent JA agreeing at [23], Harper AJA agreeing at [24]).
These cases reveal a disparate array of offending and a disparate array of mitigating factors. They offer a useful perspective from which to view the present case. The appellant engaged in a premeditated attack, which was calculated to maximise the danger to the lives of three of his former co-tenants. He was not seeking to end his own life, and suffered no injury himself from the fire. He does not have the benefit of youth or more than the most basic remorse, and his professed intention to resume illegal drug use and not take prescription medication leaves little room for optimism as to his prospects of rehabilitation. The use of multiple accelerants, the choice of the staircase as the site to light the fire, and the lighting of the fire in the middle of the night while the occupants of the building were asleep, all meant that the offending amply warranted the judge’s designation as falling ‘towards the upper end in terms of the objective seriousness of the offence’.
Arson is a very dangerous crime and fire can be notoriously indiscriminate and devastating in its impact. This makes arson with intent to endanger life an especially serious offence, even though it carries the same maximum penalty as arson itself. There is a general need to deter offending of this kind, and the present appellant has shown himself to be a person from whom the community needs particular protection.
In our view, the sentences in other cases do not suggest that the present sentence was manifestly excessive. A sentence of eight years’ imprisonment is very substantial, but the maximum sentence for this offence is 15 years. The appellant can point to none of the significant mitigating features available to the offenders in Wang, Roberts and Hayman, who received community orders along with short or suspended terms of imprisonment.
While there is some similarity to the offending in the other four cases, there are significant differences, for example: the fire in Islam was lit during the day; the Molotov cocktail thrown through the window in Maher immediately alerted the family to the danger; and the fire in Matheas failed to spread and the sleeping victims escaped unharmed.
BBA is distinguishable because of the three rape charges, on which sentences of only three years’ imprisonment were imposed. It appears that all sentences in that case were moderated in the interests of totality, yielding a total effective sentence of nine years, which sits comfortably with the present sentence when regard is had to the number of victims in this case. In any event, as we said earlier, this Court described the overall sentence in that case as ‘moderate’, and the sentence is less helpful as a yardstick for that reason.
To the extent that the sentences in Hayes and Chidwick are relevant, they too are quite different. Although the offending in Hayes caused the death of three people, the offence of arson causing death does not require proof that the offender intended that result. The offender in Hayes did not know that the premises were occupied. Although the maximum sentence for arson causing death is 25 years’ imprisonment, the nature of the moral culpability in the two cases is distinct. As to Chidwick, the first arson incident was directed at a motor vehicle adjacent to the occupied premises. The second arson incident occurred when the property was unoccupied. Again, intent to endanger life was not an element of either offence.
It is not necessary, of course, to be able to rationalise all these sentences so that they are consistent with each other. But when we take account of them, along with the features of this case which we have mentioned and those to which the sentencing judge drew attention, we conclude that the sentence for this instance of arson with intent to endanger life, toward the upper end of the range of seriousness, was well within the range of sentences open to the judge.
There is no appeal in respect of the sentences for intentionally causing injury. The total cumulation of 18 months in respect of those sentences is moderate and consistent with the principle of totality. In our view, the total effective sentence of nine years and six months’ imprisonment was therefore within range. In those circumstances, the non-parole period of six years and six months, which was relatively generous given the appellant’s prospects, was also well open.

Conclusion

The appeal must be dismissed.

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[2024] VSCA 18

5 March 2024