Lisle v The Queen
[2017] VSCA 4
•25 January 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0127
| DAMIAN PAUL LISLE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 January 2017 |
| DATE OF JUDGMENT: | 25 January 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 4 |
| JUDGMENT APPEALED FROM: | DPP v Lisle (Unreported, County Court of Victoria, Judge Morrish, 3 June 2016) |
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CRIMINAL LAW — Sentence — Appeal — Arson and burglary — Appellant set fire to toilet rolls and a clipboard at Crown Casino — Sentenced as a serious arson offender to be imprisoned for 5 years a with a non-parole period of 3 years and to a community correction order of 7 years’ duration — Sentence manifestly excessive — Leave to appeal granted — Appeal allowed — Re-sentenced to be imprisoned for 3 years and 6 months with a non-parole period of 2 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Smallwood | Papa Hughes Lawyers |
| For the Crown | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
Introduction
On 18 February 2016, the applicant pleaded guilty in the County Court to three charges of arson (charges 1, 2 and 4) and one charge of burglary (charge 3).
Later, on 3 June 2016, the judge imposed a total effective sentence of five years’ imprisonment upon the applicant, and fixed a non-parole period of three years. The judge also imposed a community correction order (‘CCO’) of seven years’ duration on charges 1, 2 and 4 (arson).
The applicant seeks leave to appeal against the sentence on two grounds as follows:
1. The learned sentencing judge erred by concluding that the applicant’s consumption of alcohol was an aggravating factor.
2. The individual sentences (including the terms of imprisonment and the Community Correction Order imposed), orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars
(a)The sentences imposed were disproportionate to the gravity of the offending.
(b)The learned sentencing judge gave manifestly insufficient weight to the applicant’s early pleas of guilty and remorse.
With conspicuous fairness, in response to the applicant’s written case the respondent promptly conceded that ‘the total effective sentence and non-parole period are manifestly excessive when combined with a [CCO] of the length and onerous conditions imposed in this case’. That concession was properly made.
For reasons that I will shortly elaborate, leave to appeal against the sentence should be granted and the appeal allowed. I would sentence the applicant to be imprisoned for three years and six months, with a non-parole period of two years, in the manner I will later set out.
Circumstances of the offending
All of the offences charged in the indictment occurred within the Crown Casino complex at Southbank on Wednesday, 5 August 2015, between the hours 7.00pm and 9.00pm. At that time the applicant was aged 41 years.[1] He lived with his wife, Leanne, in their family home at Coldstream, and was employed as a business development manager for an architectural company, ‘Classic Architectural Group’.
[1]The applicant was born on 10 September 1973. He is now aged 43 years.
On 5 August 2015, the applicant arrived at work at around 7.30am. He then met with his employer, Leigh McAlpine, at 8.00am. The meeting concerned the applicant’s monthly sales performance. Mr McAlpine highlighted some areas in which the applicant’s performance could improve, causing the applicant to become very agitated. Some hours later, at 1.00pm, the applicant attended a business meeting in City Road, Southbank. At 5.16pm, Mr McAlpine attempted to contact him on his mobile phone but he failed to answer or return the call.
Charge 1 — Arson
At 7.09pm, closed circuit television (‘CCTV’) cameras at the entrance of Crown Casino captured the applicant entering the complex; and at 7.12pm, CCTV cameras captured the applicant entering the ‘Las Vegas Lounge’.
Thereafter, at 8.21pm, the applicant was captured by CCTV cameras entering male toilets adjacent to the Las Vegas Lounge. He entered the second cubicle and used a cigarette lighter to set fire to the bottom roll of toilet paper in a stainless steel holder fixed to a partition wall (charge 1 — arson).
Four minutes later, at 8.25pm, CCTV footage captured the applicant leaving the toilets. A security service officer at the casino, Lorna Lock, was alerted by a patron to the fact that smoke was coming from the male toilets. Ms Lock then went to get some water from the bar and asked another male staff member to come into the toilet to assist her.
Upon entry, Ms Lock observed smoke, and saw a male who appeared to be confused leaving the toilet. She then entered the second cubicle and saw that the toilet rolls were alight. Ms Lock and the male staff member threw water on the rolls to extinguish the fire. The fire burnt the toilet rolls and also set alight the timber melamine partition wall.
When the toilet was later examined, the gold lining from a packet of ‘Benson and Hedges’ cigarettes was located in the water of the toilet bowl. Subsequently, when detained by security staff at the casino, the applicant was found in possession of a packet of Benson and Hedges cigarettes.
Charge 2 — Arson
At 9.09pm, the applicant was captured by a CCTV camera again entering the male toilets adjacent to the Las Vegas Lounge. Whilst in the toilet, the applicant again used his cigarette lighter to set fire to some rolls of toilet paper in stainless steel holders that were attached to the cubicle partitions of two toilets. CCTV footage showed him leaving the male toilet five minutes later, at 9.14pm.
Michael Halliday, a security services officer employed by the casino, went into the toilets and noticed that a toilet roll was alight. He extinguished that fire, but soon realised that smoke was still building up in the toilet area. Mr Halliday then observed that the toilet rolls in another cubicle had been set alight, and again he extinguished the fire. The fires caused some damage to the toilet roll holders and the cubicle walls, the second cubicle being more damaged than the first.
Charges 3 and 4 — Burglary and Arson
At 9.17pm, CCTV cameras captured footage of the applicant entering a preparation area known as the ‘dispense bar’ at the back of the Las Vegas Lounge. That area was restricted to entry by staff only, and to enter the area the applicant had to pass three ‘staff only’ signs. The footage depicted the applicant entering the area, looking around and then using his cigarette lighter to set fire to a number of ‘A4’ documents attached to a wooden clipboard which was in turn attached to the side of a work bench.
The clipboard was located above a plastic rubbish bin containing a number of potentially flammable items. There were also cardboard boxes, boxes of plastic straws and rubbish bins containing paper receipts and other flammable material in the dispense area. The applicant waited for the paper to ignite. When it became apparent, however, that the paper was not catching fire, the applicant again used his cigarette lighter to set fire to the paper. He waited for a short time and left the area when the paper ignited.
At around 9.30pm, Nikita Tuthill, a food and beverage attendant, walked into the dispense bar and noticed that the papers on the clipboard were alight. Ms Tuthill alerted other staff to the fire and immediately filled a pint glass with water and extinguished the fire by throwing the water over the burning papers. She also picked up a second clipboard next to the one that had been set alight as it had been singed and was smouldering. Other staff attended and assisted Ms Tuthill, and CCTV cameras captured the applicant in the background watching the staff deal with the fires.
Arrest
Security staff at the casino monitor the CCTV cameras. At 9.41pm, they observed the applicant watching staff at the Las Vegas Lounge deal with the fires. The security services manager, David Amoore, and another security officer, Paul Marani, then approached the applicant and spoke to him. Mr Amoore told the applicant that he was under arrest and took the applicant to a holding area. He formed the opinion that the applicant had been drinking; and Mr Marani was of the view that the applicant looked dazed, and was either under the influence of some kind of substance or just pretending not to understand.
Once in the interview room, the applicant became agitated and wanted a cigarette. Mr Amoore initially let him have a cigarette to keep him calm. He noticed that the applicant’s cigarettes were ‘Benson and Hedges Smooth’.
Sometime after 10.00pm, Constable Andrew Johnstone and Constable Fionnuala Kennedy arrived, and the applicant was taken into police custody. As Constable Johnstone spoke to the applicant, he kept lighting cigarettes which were taken away from him. Constable Johnstone formed the opinion that the applicant appeared to be intoxicated, since he had blurry eyes and smelt of alcohol. The applicant told Constable Kennedy that he had taken an unknown quantity of unknown pills earlier in the night. As a result, Constable Johnstone contacted an ambulance to assist the applicant.
At approximately 11.10pm, Constable Johnstone searched the applicant and seized a blue cigarette lighter (which was probably used to start the fires).
Later, at 11.55pm, paramedics arrived and assessed the applicant as being fit for custody and not requiring hospitalisation.
Shortly after midnight, on 6 August 2015, the applicant was taken to the Melbourne Police Station. He was placed into a cell to allow him to recover from the effects of the alcohol he had consumed. At 4.35am, he was interviewed by Constable Johnstone and Constable Kennedy. During the interview, the applicant claimed that he had no memory of what took place and was relying on what he had been told; that he believed that he had been arrested at the casino for being drunk in a public place and criminal damage by fire; that he was at the casino in the afternoon, but was not sure when he arrived; that he had played blackjack for quite some time and then went into the poker room, but was not sure how long he played those games; that he started consuming beer when he arrived and was not sure how many he had consumed or how long he had been drinking for; that he would have gone to the toilet, but did not know where the toilet was and did not recall doing anything while he was in the toilet; and that he did not recall going to any area of the casino that was not open to the public. The applicant was asked if he knew anything about the CCTV footage capturing him entering the dispense bar and toilet, but he was not able to tell Constable Johnstone anything about that.
At 5.04am, the interview ceased and Constable Johnstone charged the applicant with arson and being drunk in a public place. He was bailed to the Melbourne Magistrates’ Court on 8 December 2015.
Investigation
On 6 August 2015, the informant, Detective Senior Constable Ian Brown, became aware of the applicant's involvement in the fires. Detective Brown liaised with other police members and the Crown Casino security and learned the full extent of the fires.
At 7.25am, on Friday, 7 August 2015, Detective Brown went to the applicant’s address and spoke to his wife. She told him that the applicant was at work, and gave Detective Brown the applicant’s business card. Less than an hour later, at 8.20am, the applicant called Detective Brown. It was agreed that the applicant would meet Detective Brown at the Preston Police Station at around lunchtime, but the applicant failed to attend. After several attempts to contact him, Detective Brown finally made contact with the applicant and an appointment was made to meet at the Lilydale Police Station. As a result, at 12.35pm, on 7 August 2015, the applicant met with Detective Senior Constable Brown at Lilydale Police Station.
Prior to being interviewed by Detective Brown, the applicant obtained legal advice. In the course of the interview the applicant gave ‘no comment’ answers when asked about the incident. He was subsequently charged and remanded in custody.
The sentences imposed
Arson attracts a maximum penalty of 15 years’ imprisonment,[2] and the maximum penalty for burglary is 10 years’ imprisonment.[3]
[2]Crimes Act 1958 ss 197(1), (6) and (7).
[3]Crimes Act 1958 s 76(3).
It is convenient to set out the sentences imposed on the applicant in tabular form:
Charge Offence Sentence of imprisonment Cumulation[4] 1 Arson 2 years 1 year 2 Arson 2 years and 6 months 1 year 3 Burglary 1 year and 6 months 4 Arson 3 years Base Total effective sentence 5 years’ imprisonment, followed by a CCO for 7 years on charges 1, 2 and 4 Non-parole period 3 years Section 6AAA declaration 7 years and 6 months’ imprisonment with non-parole period of 5 years Other Orders Pursuant to s 6F of the Sentencing Act 1991, sentenced as a serious arson offender on charges 1, 2 and 4. Forfeiture and disposal orders. [4]Strictly speaking, by virtue of s 6E if the Sentencing Act 1991, every term of imprisonment imposed on a serious arson offender ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’. Thus, rather than (as she did) direct cumulation as between the sentences on individual charges, her Honour should have directed a measure of concurrency.
As indicated, apart from the sentences of imprisonment imposed on each charge, a CCO of seven years’ duration was imposed on charges 1, 2 and 4. Beyond the mandatory terms which attach to all CCOs,[5] a range of further conditions were imposed — many of them severely punitive — including that the applicant:
[5]See Sentencing Act 1991 s 45.
· be under the supervision of a community correction officer for seven years;
· undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency as directed by the Regional Manager;
· undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the Regional Manager;
· undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager;
· reside at a specified address for seven years;
· submit to electronic monitoring for seven years;
· for seven years, not enter or remain in the Crown Casino complex or the Dandenong Ranges and national parks including Kinglake National Park, Yarra Ranges National Park, Lake Eildon National Park and Bunyip State Park (save that the applicant may attend Mount Donna Buang or Lake Mountain upon giving 24 hours written notice to Detective Brown or the officer in charge of the Yarra Ranges Criminal Investigation Unit);
· abstain totally from consuming alcohol, liquor or spirits for three years from the date of the order coming into force; and
· for three years, not: enter or remain in any licensed premises characterised as a nightclub, bar, restaurant, café, reception centre or function centre; enter or remain in the location of any major event; enter or remain in a bar area of any other licensed premises; or consume liquor in any other licensed premises.
Prior convictions
The applicant has concerning prior convictions. Thus, in the County Court on 16 December 2011, he was sentenced to be imprisoned for three years and 10 months, with a non-parole period of 22 months, on nine charges of intentionally causing a bushfire[6] (and other offences).[7] Pursuant to s 6F of the Sentencing Act 1991, he was sentenced as a serious arson offender on that occasion.
[6]Crimes Act 1958 s 201A. The maximum penalty is imprisonment for 15 years.
[7]He was also fined without conviction for theft on 15 August 1994; and was fined without conviction for theft and making a false report to police on 18 November 2008.
The prosecutor explained that the nine charges of lighting a bushfire concerned nine fires that were lit on the same day in the Mount Evelyn area, at a time shortly after the applicant had been suspended from the Country Fire Authority as a volunteer fire fighter. The prosecutor told the sentencing judge:
[The applicant] was 36 years of age when he lit those nine fires in Mount Evelyn on the one day that was 17 February 2010. In relation to those fires, [the judge] sentenced him on the basis of admissions I think he made plus other witnesses who gave evidence of his driving around the Mount Evelyn area on that day.
The fires were all lit within a fairly shortly [sic.] period of time. I think it was less than two hours and [the applicant] admitted that he would, as he drove along, light pieces of paper and throw them out of the window of his vehicle as he drove along and set those nine fires alight.
None of those fires got out of control and produced what [the judge] described as minor damage although [the judge] noted that they were lit in an area with a high potential for the spread of fire because of the fuel load and that that offending being on 17 February was at the height of summer.
When he was apprehended, [the applicant] was going to have a blood alcohol concentration of .167 percent … In fact he had crashed his motor vehicle into a tree and was apprehended at that point in time at that stage.
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Prior to the offences [the applicant had] been suspended and that was one of the reasons given as to him becoming distressed and unhappy. In that case there was clear evidence that he had turned to alcohol at that point and that the offending occurred in that context after that after he become intoxicated [sic.].
As I’ve indicated, the fires didn’t … cause a great deal of damage and the CFA who were the same crew, I understand, that [the applicant] used to be a part of were able to control them all fairly quickly.
Ground 1 — Alcohol consumption as an aggravating feature
In my view, the first ground — which asserts that the sentencing judge ‘erred by concluding that the applicant’s consumption of alcohol was an aggravating factor’ — is made out.
One cannot sit daily in criminal courts without being acutely aware that many crimes are committed by individuals who are under the influence of alcohol (or illicit drugs). Authority dictates, however, that — generally speaking — intoxication is not a circumstance going in mitigation of an offence.[8] But to deny intoxication as a mitigating circumstance is not to say that intoxication must therefore necessarily be considered to be an aggravating feature of an offence. Indeed, in a case such as the present, before alcohol ingestion or intoxication may be considered to be an aggravating feature of an offence, a sentencing judge will need to be satisfied beyond reasonable doubt that an offender was aware of the probability that alcohol use would predispose him or her to conduct similar to that constituting the relevant offending.
[8]Morrison v The Queen [2012] VSCA 222, [17]–[20] (Buchanan JA); Hasan v R (2010) 31 VR 28, 33–7 [20]–[34].
It is necessary to turn to the judge’s sentencing remarks. She said:[9]
[9]Emphasis added to this and the following passage.
As the transcript shows, your counsel has submitted that before lighting the fires, you had had an argument and made the conscious decision to drink alcohol contrary to your prior determination to give it up or at least stop drinking after appreciating the very real likelihood that it could lead you to offending in a similar manner. As I said before, you told police you did not recall anything about that night because you were drunk. Your counsel conceded that in these circumstances your intoxication on this occasion can hardly be considered a mitigating circumstance. Indeed, I raised whether it might constitute an aggravating circumstance.
Her Honour then cited from authority[10] and continued:
Your conduct appears to be without explanation other than the possibility you must have acted whilst drunk. I consider your consumption of alcohol in the circumstances to be an aggravating factor and it does not reduce your moral culpability.
These remarks followed the judge’s earlier observation concerning ‘the question of [the applicant’s] knowledge of the effects of intoxication upon [him]’, that he was ‘well aware that [he] could offend in precisely this manner when drunk because of [his] past experience of lighting bushfires when intoxicated and angry’.
[10]R v Groom [1999] 2 VR 159, 164 [23]; R v Howell (2007) 16 VR 349, 355 [19]; R v McRae [2008] VSCA 74 [15].
In the course of the plea, the judge had raised whether alcohol consumption might be an aggravating feature in the following exchange:
HER HONOUR: And here there seems to be no real explanation that has been offered. There seems to be nothing learnt from the past experience. Alcohol may be an aggravating factor but not a mitigating factor given he knows what happens when he gets in trouble with alcohol. You haven’t dealt with the authorities on that principle and you say the priors are limited, well there’s [sic.] nine. There is [sic.] nine prior convictions for setting fires in the bush.
[DEFENCE COUNSEL]: Your Honour, I’m not submitting alcohol as a mitigating factor. Your Honour, with respect is quite correct in saying that once he’s aware of the effect alcohol has had on him, he can’t rely on that as a mitigating factor. All we can say is it’s a causative factor and all we can say is that in order to minimise a risk of reoffending and maximised protection of community that is something that needs to be controlled.
In her reasons for sentence, the judge seems to have conflated two distinct — but related — factors. First, the applicant’s intoxication; and, secondly, his consumption of alcohol. Neither factor was, however, relied upon by the prosecution as being a circumstance of aggravation.
Indeed, the prosecution relied only on three suggested features of aggravation — I do not pause to consider whether they properly could be considered such — being: first, the fact that the applicant had ‘extremely relevant’ prior convictions and had been declared a ‘serious arson offender’ (and imprisoned) on 16 December 2011; secondly, that the applicant had been a member of the Country Fire Authority in the Mt Evelyn area ‘and was well versed in the dangers of fires’; and, thirdly, that the current offences ‘represent serious examples of the offence’ of arson. In developing that third circumstance, the prosecution submitted that the fires were lit at Crown Casino — a large place frequented by many — and had the potential to spread, so as to place people and property at risk.
As I have indicated, intoxication may, in limited circumstances, be considered to be an aggravating feature of an offence. Hence — and to take an example unrelated to the facts of the present case — in the case of an assault, ‘intoxication may aggravate the offence by, for instance, making the events all the more frightening for the victim, preventing the victim from effectively reasoning with the assailant to desist’.[11]
[11]R v Groom [1999] 2 VR 159, 164–5 [24].
Moreover, quite apart from those cases where the offender’s intoxication may be considered to be aggravating because of the effect it has on a victim, there is at least one other way in which consumption of alcohol may aggravate an offence. Thus, where an offender has foresight of the probability that he or she will indulge in the general type constituted by the offending conduct, the offender’s premeditation or recklessness in ingesting alcohol (or a drug) may become an aggravating feature of the offence. It is the degree of awareness or deliberation that consuming the alcohol (or taking the drug) will predispose the offender to such conduct which aggravates the offence.[12]
[12]Director of Public Prosecutions (DPP) v Arvanitidis (2008) 202 A Crim R 300, 313 [43]; R v Hay [2007] VSCA 147 [18] (Buchanan JA), [33] (Maxwell P); R v Coleman (1990) 19 NSWLR 467; R v Gordon (1994) 71 A Crim R 459; R v Sewell (1981) 29 SASR 12, 14–15 (Zelling J).
It must be remembered, however, that, as a matter of principle, if a circumstance is one that the judge considers aggravates the offence, the judge must be satisfied of that fact beyond reasonable doubt. Put another way, a judge may not take facts into account in a way that is adverse to the interests of a person to be sentenced unless those facts have been established beyond reasonable doubt.[13]
[13]R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking JA, Hayne JA and Southwell AJA).
In circumstances where the prosecution does not rely on a matter as a circumstance of aggravation, a judge should exercise a marked degree of circumspection before relying on such a matter as a feature of aggravation on his or her own initiative. Furthermore, as I earlier observed, any feature of aggravation must be proved beyond reasonable doubt.
With great respect to the sentencing judge, the fact that the applicant had lit bushfires in the past when intoxicated, could not justify a finding that the applicant was aware that he would probably indulge in the kind of fire-lighting alleged in this case if intoxicated.
The first ground is established.
Ground 2 — Manifestly excessive sentence
In written submissions, the respondent fairly conceded that ‘a sentence of five years’ imprisonment with a CCO added on to the end of it, is outside the range of sentences available for this particular type of offending’. It was submitted that, given the applicant’s prior history, ‘a sentence of the order her Honour imposed of five years with a non-parole period of three years, without a CCO, would have more than adequately reflected the seriousness of the offending’. The respondent submitted that although, indeed, ‘such a sentence could be seen to be stern’, it ‘could be explained on the basis of the applicant’s prior history and his serious arson offender status, together with reduced prospects of rehabilitation’. Thus, so it was submitted, ‘the step up from three years and ten months with a non-parole period of 22 months[14] to five years with a non-parole period of three years can be seen to be within range’.
[14]That is, the sentence imposed on 16 December 2011.
As I have indicated, I agree that the sentence imposed is manifestly excessive. Notwithstanding that the applicant fell to be sentenced as a serious arson offender — and thus that the court had to regard the protection of the community as the principal purpose for which the sentence is imposed[15] — the fact is that the fires were short-lived and caused minimal damage[16] in circumstances where, in my view, due to the circumstances and location of their lighting, the potential for the fires to cause any much greater harm was very limited.[17] Moreover, the prosecution did not submit that a disproportionate sentence was warranted in order to fulfil the need for community protection.[18]
[15]Sentencing Act 1991 s 6D(a).
[16]Charges 1 and 2 on the indictment alleged that the appellant ‘intentionally and without lawful excuse damaged by fire a toilet partition wall, rolls of toilet paper and holder belonging to Crown Casino’; and charge 4 alleged that the appellant ‘intentionally and without lawful excuse damaged by fire a clip board belonging to Crown Casino’.
[17]Compare Quarrell v The Queen [2011] VSCA 125 [30]–[32].
[18]Sentencing Act 1991 s 6D(b).
Further, I agree with the notion that a CCO is not warranted, so long as an appropriate term of imprisonment is imposed upon the applicant. As I have indicated, quite apart from its inordinate length, the CCO contained a number of very punitive conditions which, in my view, were not justified by the circumstances of the instant offending. Indeed — and although this was not a matter of much argument — conditions requiring the applicant not to enter the Dandenong Ranges and national parks, including Kinglake National Park, Yarra Ranges National Park, Lake Eildon National Park and Bunyip State Park, might be seen to be punishing the applicant again for the conduct which was the subject of the sentence imposed on 16 December 2011. It is beyond argument that such a course could not be justified.[19]
[19]R v O’Brien and Gloster [1997] 2 VR 714, 718.
Given the conclusion that I have reached that the sentence imposed upon the applicant is manifestly excessive, it must be set aside, and this Court must sentence the applicant afresh. It is thus necessary to refer to a number of matters bearing on the issue of re-sentence.
The sentencing judge accepted (as do I) that the applicant was remorseful and that he had pleaded guilty at the earliest opportunity. She had before her a number of exhibits, including two reports from a consulting psychologist, Mr Warren Simmons, dated 28 January 2016 and 10 March 2016. Mr Simmons noted that the applicant had been diagnosed with Post-Traumatic Stress Disorder in 1998 following an incident of sexual abuse. He said that the applicant had a long history of a depressive illness for which he had been medicated, and that, whilst in custody, the applicant had been reassessed as suffering from bipolar mood disorder, so that certain medications had been added to the applicant’s treatment regime. Mr Simmons considered that when the applicant is under significant stress he resorts to alcohol.
In her sentencing remarks, the judge gave the following description of the applicant’s personal circumstances (which I adopt):
Born in Box Hill, you are now aged 42. Your parents separated when you were aged six and your mother began a new relationship when you were 13. You were brought up in a stable environment, although as a child you struggled with your parents’ separation. You completed primary and secondary schooling and after leaving school you obtained an apprenticeship as an optical technician but you left that employment when the company became insolvent. You then worked as a telecommunications salesman until you were aged 21, when you joined the Navy. There you became a combat systems operator.
Some four years after joining the Navy, you were the victim of a sexual assault in circumstances described in Mr Simmons’ first report ... It would appear that this assault had profound effects upon your mental well-being and led to your abuse of alcohol and cannabis.
There was an incident, prompted apparently by alcohol or drug use, that resulted in your arrest by military police and while in the cells you attempted suicide. You ended up spending some time in a psychiatric ward of a hospital.
Your pattern of alcohol consumption continued for a number of years. You were subsequently diagnosed with post-traumatic stress disorder and you were discharged from the Navy in 1998. After your discharge from the Navy, you worked with your step-father as a salesman until approximately 2002. Then you attended TAFE and completed a Diploma of Management, followed by a Bachelor of Business.
You worked as a business development manager for an architectural materials company, dealing with big projects, called ‘tier 1 projects’, including major residential constructions, building roads and constructing universities.
...
You have a nine year old daughter. Your counsel states that although you have little recollection of your offending, you can recall having an argument with your wife the night before and you decided to go to the Crown Casino to gamble and have some drinks. He told me that apparently you proposed to limit your drinking to say two or so drinks, but you abandoned that plan, drinking yourself to a state where you could not recall your actions.
Your counsel told me that because of your offending, your marriage has broken down, although you are now on amicable terms with your wife, who has assisted facilitating prison visits with you daughter.
An assessment of the applicant’s prospects of rehabilitation must be guarded, in light of his prior convictions. Further, given his propensity for lighting fires when stressed, an adequate measure of specific deterrence is called for, so as to advance community protection. Additionally, the need for general deterrence must be reflected in any sentence imposed for the present offences, as must the fact that the applicant is to be sentenced as a serious arson offender. Plainly, the applicant’s abuse of alcohol is a matter which needs to be addressed in order to minimise any risk of recidivism. That is something that might be addressed by correctional and parole authorities whilst the applicant is in custody and during conditional release (should the applicant be granted parole).
Proposed orders
Synthesising, as best I am able, all relevant factors, I would set aside the sentences of imprisonment imposed in the County Court on each charge and the CCO imposed on charges 1, 2 and 4. I would convict the appellant and sentence him to be imprisoned as follows:
· Charge 1 — 18 months;
· Charge 2 — 18 months;
· Charge 3 — 3 months;
· Charge 4 — 2 years.
I would nominate the sentence on charge 4 as the base sentence, and order that nine months of the sentence on charge 1; nine months of the sentence on charge 2; and the whole of the sentence on charge 3; be ordered to be served concurrently with the sentence on charge 4. The total effective sentence is thus three years and six months’ imprisonment, upon which I would fix a non-parole period of two years’ imprisonment. I would cause to be entered in the records of the Court that the appellant is sentenced as a serious arson offender on charges 1, 2 and 4. Further, I would make an appropriate declaration of pre-sentence detention and confirm all other orders of the County Court.
Pursuant to s 6AAA of the Sentencing Act 1991, I would declare that, but for the plea of guilty, I would have sentenced the appellant to a total effective sentence of five years’ imprisonment, upon which I would have fixed a non-parole period of three years.
SANTAMARIA JA:
I agree.
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