R v David Keith Green

[2019] NSWDC 66

District Court

New South Wales

Medium Neutral Citation:	R v David Keith Green [2019] NSWDC 66
Hearing dates:	13 March 2019
Decision date:	21 March 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [44]
Catchwords:	Arson; Bugmy principles applied
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1995
Cases Cited:	Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Kennedy v R [2010] NSWCCA 260 R v Fernando [1992] 76 A Crim R 58 R v Mazur (2000) 113 A Crim R 67 R v Perrone (1989) 43 A Crim R 360
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) David Keith Green (Offender)
Representation:	Solicitors: E Navea (Crown) P Cranney (Offender)
File Number(s):	17/331556
Publication restriction:	Nil

remarks on sentence

1. On 13 March 2019 the offender was arraigned on an Indictment containing the following charge:

1. On 24th day of October 2017, at Moree in the State of New South Wales, recklessly damaged the Corrective Services cell complex at 58 Frome Street, the property of the New South Wales Police Force, by means of fire.

2. The offender pleaded guilty upon arraignment, although the Crown acknowledged that a plea of guilty had been entered earlier in the Local Court to a similar charge.

3. The offence contravened s 195(1)(b) of the Crimes Act 1900. The maximum penalty proscribed was 10 years imprisonment. There is no Standard Non‑Parole Period.

The sentence hearing

4. The sentence hearing took place on Wednesday 13 March 2019 at Moree District Court. The Crown Sentence Summary became Ex A. It included a Statement of Facts which may be summarised as follows.

5. On Tuesday 24 October 2017, the offender was an inmate in the custody of New South Wales Corrective Services being held at Moree Police Station. The cell complex consists of six cells and an exercise yard. At 4.30pm that afternoon the offender was housed in cell 1 by himself. There were two other prisoners in cell 2 and a further prisoner in cell 3. Two other prisoners were being processed in the charge room of the police station, waiting to be placed in the cells. CCTV footage of cell 1 showed the offender to be flicking a cigarette lighter whilst reaching towards the top corner of a bed placed in that cell.

6. The offender was then seen to move a mattress off the end of the bed and then appeared to place something in the top corner of the bed before getting into the bed and pulling the covers over himself. Approximately 25 seconds later, smoke could be seen coming from the end of the bed and the mattress quickly ignited. A thick plume of smoke began to fill the cell and the CCTV camera was blacked out as a result of the smoke.

7. At this time, two corrections officers were processing two new inmates in the police charge room and it was only by chance that the smoke was observed by one of those officers. The alarm was raised and all inmates were safely removed from the cell area. When the officers opened cell 1, the offender was lying on his stomach at the door, sucking air from underneath the door. The fire was eventually extinguished by NSW Fire and Rescue personnel, however, it destroyed the front of cell 1 and the cell complex and attached office space suffered smoke damage.

8. The three inmates housed in other cells were placed in considerable danger, being unable to evacuate on their own. Those who came to their aide were also placed in considerable danger.

9. The following day police searched cell 1 and located a white cigarette lighter under the top corner of the mattress. This was the same place that the offender had appeared to reach towards prior to the fire starting.

10. The cost to repair the cell complex amounted to $234,554.00. It was rendered completely unusable from 24 October 2017 to 24 November 2017, when three of the six cells became useable. It was not until March 2018 that all of the cells were operable. This caused considerable inconvenience to Corrective Services, their officers and inmates who were unable to appear in person at Moree Courthouse during that period.

11. Exhibit A contained the criminal antecedents of the offender. He was born on 1 May 1989 and was 28 years old at the time of the offence. Leaving aside a Children’s Court conviction, he has an extensive record from 2009 for offences of dishonesty, larceny, destroy or damage property (multiple offences), resist police (multiple offences), possess implements to enter/drive conveyance, giving a false name, goods in custody, break, enter and steal, shop stealing, and numerous traffic offences, of never been licenced, and wield knife in a public place.

12. Exhibit A included a pre-sentence report under the hand of H J Watkins dated 1 June 2017, which was prepared for the purpose of sentencing in relation to two shoplifting offences on 19 June 2017. The author noted that the offender was known to be an abuser of alcohol and illicit drugs, but had ceased consuming alcohol for seven years. He was, however, using Fentanyl illegally for about five years as a pain reliever, having been bitten by a venomous snake. This led to a number of foot and leg problems, leaving him with limited leg movement, impeded walking and constant pain.

13. The author noted the offender had minimal literacy and numeracy skills and an overall intellectual capability of extremely low range. The author also noted that the offender had had a mixed response to supervision by Community Corrections.

14. A further pre-sentence report dated 29 August 2018, merely noted that the offender had failed to attend a number of interviews for the purpose of preparing a report.

The offender’s evidence

15. The offender relied on a report from Mr Bradley Pritchard and Ms Kara Thompson, psychologists, dated 23 July 2015, which had clearly been prepared for the offender’s sentencing at Moree Local Court on 27 July 2015. The authors noted that on cognitive assessment the offender’s cognitive ability was assessed in the mild disability range. Further testing demonstrated that the offender’s overall IQ fell within the extremely low range. The authors also noted that the offender had a mild visual impairment and a mild speech impediment. There was no history of mental disorders.

16. Unfortunately there was no up to date assessment carried out on the offender to assist the court in sentencing on this occasion.

The offender’s submissions

17. The solicitor for the offender acknowledged the very serious nature of the offending, and conceded that it fell in the upper mid-range for an offence pursuant to s 195(1)(b) of the Crimes Act 1900, and warranted a full‑time custodial sentence. However, the offender asked that the court take into account his intellectual deficiencies and the fact that he should not have had access to a lighter whilst in custody.

18. The offender relied on R v Mazur (2000) 113 A Crim R 67 to submit that a full‑time custodial sentence was to be imposed unless an exceptional case could be made out. Further, R v Perrone (1989) 43 A Crim R 360 was authority for the proposition that full-time custody was not inevitable.

19. It was submitted on behalf of the offender that there were sentencing options available. The offender suffered at the time from thought disorders. Another prisoner had left the lighter in the prison, and the offender had heard voices in his head telling him to light the fire. There was no premeditation and it was unsophisticated offending. He was very fortunate that no one was injured, however, the offender had almost killed himself.

20. It was submitted that motive must be a significant factor in assessing objective seriousness of the offending. The offender also suffered a mental instability which affected his moral culpability.

21. The damage occurred in a governmental building, with some potential loss of life.

22. It was submitted on behalf of the offender that he was not a suitable vehicle for general deterrence, given his intellectual disability and mental health issues pursuant to DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

23. It was further submitted that the offender had been at liberty since the offending in 2017 and had committed no offence since then. He had no similar priors and had pleaded guilty at an early time and was therefore entitled to a 25% discount on sentence. The offender had significant mental health issues and a debilitating physical injury caused by a snake bite.

24. It was submitted that notwithstanding that the offender had a terrible criminal history, he had committed no similar offences previously and therefore his criminal history should disentitle him to any leniency rather than aggravate any sentence.

25. The offender also relied on Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 principles, in that both parents had been alcoholics and it was likely that he had Foetal Alcohol Syndrome as a child. Because of his cognitive deficits he was vulnerable and therefore applying Fernando principles, having regard to his intellectual disability and his life of deprivation, any sentence could be served by a lengthy Intensive Correction Order.

26. The Crown relied on a written outline of submissions. The Crown agreed that the offender was entitled to a 25% discount on sentence. At the time of the offending, the offender was serving a non-parole period in respect to a previous sentence. Parole was revoked by the State Parole Authority on 8 November 2017 and the offender had remained in custody until the expiration of that sentence on 6 May 2018. The Crown submitted that no component of the offender’s custody between 24 October 2017 and 6 May 2018 was referrable to the subject offence.

27. In assessing the objective seriousness of the offending, the Crown submitted that the court would take into account the cost of the damage caused by the fire. The court would also have regard to the following:

“(1) The Crown acknowledged that the sentence proceeded on the basis that the offender was reckless and caused damage by means of igniting a fire. This may be considered less objectively serious for other types of offences contrary to s 195(1)(b), which also captures intention and damage by means of explosives.

(2) The fire escalated rapidly with thick, black smoke filling the offender’s cell within 25 seconds.

(3) The fire was detected only after correctional officers noticed the smoke by chance.

(4) Moree Police Station was a public place used for the delivery of vital public services. The damage caused directly impacted the delivery of those services and had a wide impact on the criminal justice system in Moree.

(5) The fire caused the evacuation of all persons in the building.

(6) The fire could only be extinguished by the intervention of NSW Fire and Rescue Service.

(7) There was considerable damage, including the destruction of cell 1. The financial cost of repair was very substantial.

(8) Other inmates were exposed to substantial danger as they could not evacuate on their own. The officers who released them were also exposed to a risk of harm.”

28. The Crown relied on the following aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1995 (“CSPA”):

“2(a) A number of the victims are the correctional officers and police officers serving in their capacity as officers at the time of the offence.

2(g) The damage to the Moree Police Station and the flow-on effects to the criminal justice system were substantial.

2(i) The offending occurred in a public space and the offender had no regard for the safety of fellow inmates and officers.

2(i) Those inmates were vulnerable in that they could not evacuate on their own.

2(m) The offence involved multiple victims.”

29. The Crown submitted that the offender’s criminal antecedents disentitled him to leniency. His record contained a large number of entries for property and dishonesty offences. However, other than a resisting arrest offence, the offender had no history of violence.

30. In terms of the subjective case brought by the offender, the Crown accepted the testing carried out on the offender in 1998, 1999 and 2009, which demonstrated a cognitive disability. The Crown noted the offender’s history of drug and alcohol abuse and his reported use of Fentanyl for pain relief, which was illegal. The Crown noted that whilst his limited intellectual disability would not preclude intervention strategies, he had failed to report to Community Corrections for the purpose of obtaining a report. There was no evidence of any degree of remorse or insight into the offending by the offender.

31. In oral submissions, the Crown rehearsed the substance of those written submissions. In assessing the offender’s criminal history, which disentitled him to leniency, there was no evidence of any similar offending. However, the Crown expressed concern for the safety of the community and submitted that the likelihood was that this offender will reoffend given his history, and reliance on illegal drugs.

32. The Crown accepted the offender’s submission that he was not an appropriate vehicle for general deterrence in accordance with the principles in De La Rosa, supra.

33. In relation to the submissions made on behalf of the offender to apply the principles in Bugmy v R, supra, the Crown submitted that the court was without evidence of deprivation suffered by the offender during his life and could not take limited judicial notice based on his appearance. The court was therefore unable to infer that he had suffered a lifetime of deprivation.

Determination

34. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

35. The objective seriousness of the offending here was serious, notwithstanding that it was a reckless act which caused the damage by way of the offender igniting the fire to his mattress in cell 1. I note, however, that s 195(1)(b) covers a wide range of criminal conduct, including intentional damage and damage by means of explosives. The offender has conceded, properly in my view, that the offending is objectively serious, falling within the upper part of the mid-range for an offence pursuant to s 195(1)(b), and I accept that submission.

36. I also accept that there were aggravating factors relevant to this offending, namely:

“S 21A(2)(a) – a number of the victims were correctional officers and serving police officers.

(2)(g) – there was substantial damage to the police station and to the criminal justice system in Moree.

(2)(i) – the offending occurred in a public place with no regard to the safety of his fellow inmates and officers who were vulnerable.

(2)(m) The offence involved multiple victims.

37. The offender was entitled to a 25% utilitarian discount on sentence by way of his early plea of guilty. I accept that he suffers significant cognitive deficits, and has an IQ in the extremely low range. I also accept that the offender is basically illiterate, that he suffers impairments to his vision and speech. Whilst there is no history of the offender suffering a diagnosed mental illness, it is clear that he has had a history of alcohol and drug abuse from 15 years of age and I accept that he has suffered considerable deprivation during his life.

38. I find that there was no planning or premeditation involved in this offending. Nor was there a motive other than the offender hearing voices telling him to so act. It was unfortunate that a means of ignition was left in the cell by another inmate, giving rise to the opportunity for this offence.

39. I am satisfied that the relevant principles in Bugmy v R, supra, apply. They are as follows:

“1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way (40].

2. The effects of profound deprivation do not diminish over time and repeated offending should be given full weight in determining the sentence in every case [42] – [44].

3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].”

40. The High Court also noted that Aboriginal Australians, whether they live in remote or urban communities, may be subject to grave social difficulties discussed in R v Fernando [1992] 76 A Crim R 58 and Kennedy v R [2010] NSWCCA 260. I am satisfied that there is ample material establishing the offender's background here. I am therefore satisfied that the offender's offending in the circumstances here are such that the offender's moral culpability for his inability to control his impulses must be substantially reduced.

41. I take into account the maximum penalty of 10 years as a guidepost in the sentencing process. There is no Standard Non-Parole Period. In R v Mazur, supra, the Victorian Court of Appeal held that while a custodial sentence for arson was not inevitable, such a sentence will be imposed absent the most exceptional circumstances. The Court held that its previous decision in R v Perrone, supra, was wrong in law and should not be followed.

42. In accordance with the principle in DPP (Cth) v De La Rosa, supra, I find that the offender is not an appropriate vehicle for general deterrence, given his intellectual and subjective factors set out above. He is entitled to a 25% discount on sentence, and taking into account the subjective matters here, I find that the threshold in s 5 of the CSPA is crossed and no sentence other than imprisonment is warranted. I find that a sentence of 2 years and 6 months would be appropriate in the circumstances.

43. I find that there are special circumstances based on the offender’s cognitive deficits and drug dependency. I therefore intend to vary the ratio between head sentence and non-parole period from the statutory ratio pursuant to s 44(2) of the CSPA. I intend to sentence the offender to a non‑parole period of imprisonment of 1 year and 3 months to commence on 21 March 2019, with the balance of term of 1 year and 3 months.

Orders

44. I make the following orders:

1. You are convicted of the offence of recklessly damage property by fire pursuant to s 195(1)(b) of the Crimes Act 1900.

2. I sentence you to a non-parole period of 1 year and 3 months to date from 21 March 2019 and to expire on 20 June 2020.

3. The balance of term will be 1 year and 3 months to commence on 21 June 2020 and to expire on 20 September 2021.

4. Your parole eligibility date will be 20 June 2020.

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Decision last updated: 22 March 2019