R v BISHOP

[2008] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BISHOP

[2008] SASC 186

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)

9 July 2008

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - OTHER MATTERS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS

Appellant pleaded guilty to two counts of damaging property by fire contrary to the provisions of s 85(1)(a) of the Criminal Law Consolidation Act 1935 - maximum penalty for each count was life imprisonment as the property damage exceeded $30,000 in each incident - the appellant was sentenced to a period of imprisonment of 11 years and 3 months with a non-parole period of 8 years - appeal on basis that the sentence, including the non-parole period, was manifestly excessive.

Held: head sentence and non-parole period not excessive - both counts of arson resulted in extensive damage and loss - element of personal and general deterrence emphasised - impact on school and rural communities significant - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(eb) and s 10(3); Criminal Law Consolidation Act 1935 (SA) s 85(1)(a) and s 85(2), referred to.
R v Davies (2006) 164 A Crim R 353; R v James (1981) 27 SASR 348, discussed.

R v BISHOP
[2008] SASC 186

Court of Criminal Appeal:  Doyle CJ, Bleby and Anderson JJ

1. DOYLE CJ:          I would dismiss the appeal against sentence. I agree with the reasons of Anderson J.

2. BLEBY J:             In my opinion the appeal should be dismissed. I agree with the reasons of Anderson J.

3. ANDERSON J. The appellant in this matter pleaded guilty in the Magistrates Court to two counts of damaging property by fire contrary to the provisions of s 85(1)(a) of the Criminal Law Consolidation Act 1935 (the Act). This is the offence of arson pursuant to s 85(2) of the Act. The maximum penalty for each count in this matter was life imprisonment because the damage to property exceeded $30,000 in each incident.

4. The appellant was committed for sentence to the District Court where he was sentenced to a period of imprisonment of 11 years and 3 months for the offences. A non-parole period of 8 years was fixed and the sentence commenced on 12 March 2008.

5. The appellant was granted permission to appeal on the basis that the sentence, including the non-parole period, is arguably manifestly excessive.

   Background

6. The first offence occurred on 21 April 2007 at the Para Hills West primary school. The appellant set fire to rubbish bins which were kept in a shed at the school. The fire which resulted destroyed both the shed and its contents. The cost of replacing the damaged property was in excess of $90,000.

7. The second offence occurred on 1 May 2007 at Freeling when the appellant set fire to a hayshed. It was a very large hayshed full of hay at the time and the fire totally destroyed the shed and its contents. This time the property damaged was valued at about $700,000.

8. The appellant was aged 29 years at the time he was sentenced. As I have indicated, the appellant pleaded guilty to both charges. The sentencing judge indicated that but for the guilty plea for the school fire he would have imposed a sentence of 5 years but reduced that to 3 years and 9 months on account of the plea. In relation to the Freeling fire, the sentencing judge indicated that he would have imposed a sentence of 10 years which he then reduced to 7 and a half years on account of the guilty plea. He made both sentences cumulative.

9. There was no apparent motive for either of these fires. Mr Mead, counsel for the appellant, described the appellant’s actions as “idiotically stupid criminal behaviour” as distinct from being malicious, spiteful, vindictive or greedy. It seems that both offences took place in circumstances where the appellant had been consuming alcohol and/or drugs. The appellant has an extensive criminal record but has spent little time in custody. The appellant’s record includes many offences involving motor vehicles and also dishonesty.

10. As I have indicated, the appellant made admissions in relation to each offence. However, he did not come forward in the early days following the fires. It was the result of an investigation involving the theft of a radio from a tractor at the Freeling property which led police to initially investigate his brother and then the appellant. The police took the appellant’s mobile phone. It showed pictures taken during the time of the school fire. It could be said, therefore, that at that point of time the decision to assist the police and then later to plead guilty was because there was an overwhelming case against him.

11. There seems to have been no motivation for the criminal conduct other than the stupidity referred to by Mr Mead. Firelighters were used by the appellant in relation to both fires. As I have indicated, photographs were taken by the appellant with the mobile phone when the fires were in progress. Some photographs were also taken after the fires.

12. When questioned by the police the appellant admitted that his acts were stupid. He also said he was drunk on the night he lit the fire in the school shed.

13. In relation to the hayshed fire, there was apparently a group, including the appellant and his brother, who went to the hayshed, where the appellant’s brother started illegally driving the tractor. The appellant then started the fire in the hayshed using firelighters. It was not an isolated random act because the firelighters were spaced out by the appellant along the length of the hayshed, which caused the fire to spread very quickly. He said on this occasion he was probably affected by methylamphetamine and alcohol.

    The sentence imposed

14. The sentencing judge was faced with the situation that the appellant well knew the effect of the first fire and the resultant damage it had caused when he decided deliberately to light the second fire in the hayshed.

15. The sentencing judge referred to a report prepared by Dr Raeside which indicated that the appellant was a regular user of heroin from his late teens. He was apparently able to cure himself of that habit but that in turn involved him using amphetamines. In general terms the sentencing judge referred to the appellant’s background as a dysfunctional childhood.

16. I set out the diagnosis of Dr Raeside:

    The primary diagnosis appears to be an underlying Antisocial Personality Disorder. This represents a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, failure to sustain consistent work, and a childhood history of Conduct Disorder. This is a personality style that is often associated with a history of childhood abuse and neglect, and poor educational and social opportunities and attainments.

    ...

    The current offending appears to have occurred in company with peers, associated with substance abuse and a general disregard for the consequences of their actions. I particularly note that two sets of offences occurring within ten days of each other, with the first incident not being any deterrent prior to the second one. This would be consistent with his underlying personality disorder.

17. The sentencing judge indicated that he would reduce the sentence for the guilty pleas by what he said was 20%. In fact calculations show that it was 25% for both offences.

18. The sentencing judge quite correctly described the offences as “very serious”. He referred to the dangers of lighting fires in such a way because of risks to nearby properties and also the fact that fire fighters put themselves at great risk. The fire in the hayshed continued to burn for nine days and during this time the owner of the hayshed was constantly worried about any possible change of wind which could have caused the fire to flare up and put further property at risk.

19. The victim of the Freeling fire provided a victim impact statement which shows the extent of his concern at the time. Apart from the obvious problem in clearing up the debris and the loss of very valuable hay during a time of drought, the victim was emotionally affected.

    Submissions on appeal

20. Ms P. Barnett for the respondent conceded that the sentence imposed was a severe one but argued that it was appropriate because the offending was extremely serious. Ms Barnett stressed the cost to the community and how the elements of general and personal deterrence were very important factors in the sentencing judge’s consideration. She pointed to the fact that there was a senseless loss of equipment for the school in relation to the first fire and a severe impact on a vulnerable rural community in relation to the second fire. I agree with her submission.

21. In her written outline Ms Barnett referred to the proposition that there is no tariff or fixed penalty range applicable in sentencing for arson: see Perry J in R v Davies (2006) 164 A Crim R 353 at [44], adopting the proposition of the Full Court in R v James (1981) 27 SASR 348 at 358.

22. Mr Mead for the appellant submitted that the sentencing judge had not adequately reflected the appellant’s co-operation with the investigators in this matter. As I have already indicated, in the situation in which the appellant was placed, he really had no option once the stolen radio was traced to his brother, who was with him at the time of the fires. The photos taken on his mobile phone indicated that he was present at the time of the fire. I therefore do not agree with that submission.

23. Mr Mead submitted that the sentencing judge did not make reference to the provisions of s 10(3)(b) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) in fixing the sentence and the non-parole period. Section 10(3)(b) states:

    (3)A primary policy of the criminal law in relation to arson or causing a bushfire is —

    ...

    (b)     to exact reparation from the offender, to the maximum extent possible under the criminal justice system, for harm done to the community.

24. Pursuant to s 10(1)(eb) of the Sentencing Act, in determining sentence for an arson offence the court should have regard to the need to give proper effect to the policy stated in s 10(3).

25. The appellant has breached community service orders and bail conditions in the past, indicating that he is unwilling to co-operate with authorities. That unwillingness is reflected in his apparent breaches of bail one month before being sentenced by failing to attend court and his alleged removal of his home detention electronic bracelet. In my view it was not appropriate in the circumstances to make a community service order given the appellant’s previous breaches of such orders. Furthermore, given the enormity of the damage caused, any reparation would be minimal.

26. Although the judge did not refer to the sections, I believe that he took these aspects into account in his general consideration of both statutory and common law principles, as he stated in his remarks.

27. Mr Mead also submitted that the sentencing judge did not give proper consideration to the appellant’s prospects of rehabilitation. Not much comfort can be gained in this regard from Dr Raeside’s report, in which he said that the appellant “did not appear too concerned about the potential seriousness of his offences and the likely sentencing options”.

28. Finally Mr Mead submitted that the proportion that the non-parole period bears to the head sentence is inappropriate. I consider that the proportion is within appropriate limits, albeit at the upper end of a range, and that there is no basis for interfering with the non-parole period. In my view, the non-parole period appropriately allows for the aspects of both general and personal deterrence which should be reflected in the non-parole period as well as the head sentence.

    Conclusion

29. It is my view that the head sentence, although at the high end of the range, is appropriate in this case. It was a very serious matter and the element of personal and general deterrence becomes very important.

30. The deliberate lighting of fires in schools has become prevalent in the community. It is important to send a message to offenders of the seriousness of such conduct. Not only does a fire in a school cause immediate disruption but it also has a profound effect on the school community, including students, teachers and their families.

31. The reduction by the sentencing judge for the guilty pleas of 25% was quite appropriate, in my view.

32. As I have already indicated, the appellant has not spent very much time in custody for his previous offences. Despite that, his overall prospects of rehabilitation could only be described as mild to moderate at best. They are not enhanced by his recent deceitful breach of bail conditions.

33. Given that the only justification for the appellant’s acts was stupidity, it is necessary to send a message to both the appellant and the community. Because of the potential for such widespread damage as occurred in this case, it is my view that the sentence and non-parole period, albeit at the severe end of an available range of penalties, is nevertheless appropriate.

34. I would, therefore, dismiss the appeal.