R v Davies - [2006] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVIES
[2006] SASC 232
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice Vanstone)
3 August 2006
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
After initially absconding, the appellant pleaded guilty to one count of arson - the offence resulted in the total destruction of the building occupied by Family & Youth Services in Mount Gambier - the appellant had an unusually dysfunctional upbringing resulting in borderline personality disorder, rendering her suicidal, depressed and anxious - whether sentence of 8 years and 2 months imprisonment with a non-parole period of 4 years and 8 months was manifestly excessive - discussion of principles relating to mercy in sentencing - Held: by a majority sentence and non-parole period were within, albeit towards, the upper end of the range - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 10(1)(eb) and s 10(3); Criminal Law Consolidation Act 1935 s 85, referred to.
R v James (1981) 27 SASR 348; R v Goldsmith (1995) 65 SASR 373; R v Molner (unreported) Court of Criminal Appeal, 21 November 1988; R v Spinks (1996) 185 LSJS 141; R v Miceli (1997) 139 FLR 309; Cobiac v Liddy (1969) 119 CLR 257; R v Osenkowski (1982) 30 SASR 212; R v Penno [2004] SASC 354; R v Lowery (1992) 14 Cr App R 485; Richard G Fox "When Justice Sheds a Tear: The Place of Mercy in Sentencing" (1999) 25 Monash University Law Review 1, considered.

R v DAVIES
[2006] SASC 232
Court of Criminal Appeal: Perry, Gray and Vanstone JJ

PERRY J. This is an appeal by leave against the sentence imposed upon the appellant in the District Court sitting at Mount Gambier following the appellant’s plea of guilty to a charge of arson.
The offence was committed on 22 April 2004 when, in the early hours of the morning, the appellant set fire to the building at Mount Gambier occupied by Family & Youth Services (“FAYS”) (now known as Children, Youth & Family Services) after spreading petrol as an accelerant in the front foyer/reception area.
The building was totally destroyed by the fire. An assessment of the cost of the total physical damage is in excess of $3 million. This includes the cost of demolition of what remains of the building on its present site and the rebuilding and refitting of it.
The building was owned by the State.
On her arraignment in the District Court, the appellant entered a plea of not guilty. In July 2005, while on bail, she failed to appear in court and a warrant was issued for her arrest. She was arrested in Queensland on 1 February 2006, when she was returned to this State.
Soon afterwards, on 13 February 2006, she entered a plea of guilty.
On 30 March 2006 the appellant was sentenced in the District Court to a head sentence of 8 years and 2 months imprisonment with a non-parole period of 4 years and 8 months, both to commence on that date.
It is from that sentence that the appeal is brought.
There is one ground of appeal, namely that the penalty imposed was manifestly excessive in all the circumstances.
At the time of the offence, the appellant was aged 31 years.
The sentencing judge had before him a very comprehensive report by a psychologist, Mr Bell. In the history set out in that report, Mr Bell describes the dysfunctional family life experienced by the appellant as a young child.
The appellant’s parents separated when she was about 12, and a few years later, her mother attempted suicide.
The appellant went to live with her father and his parents in New Zealand, where the appellant attempted suicide on at least two occasions, and was taken into care where she was sexually abused.
She returned to Australia, where she worked in the sex industry.
She married at the age of 22, after a series of relationships which were marked by instability and violence, associated with drugs and alcohol. The marriage lasted 5 years. There was no issue of the marriage.
Later, the appellant entered into another relationship with the father of her son. This turned out to be an abusive relationship during the course of which she again suffered violence at the hands of her partner.
Her child was born on 9 April 2003. He was taken into the care of the Minister in January 2004. By then the appellant had separated from the child’s father.
After the child was taken into care, FAYS staff were responsible for arranging access both to the appellant and the child’s father. During this period the relationship between the appellant and FAYS staff deteriorated, and the appellant became abusive towards them. One of the sources of this abuse was the appellant’s perception that FAYS staff were favouring the father above her in arranging access.
On the afternoon before the offence was committed, the appellant received a phone call from a social worker at FAYS. During the course of the call, the social worker told her that they would be increasing the level of access by the father to the child, and that they were contemplating that later on he might be given custody of the child.
The appellant reacted angrily at this information, and she formulated a plan to burn down the FAYS’ office in order to assuage her anger. She consumed a significant quantity of alcohol, and became depressed and aggressive. After setting the building on fire, she attempted suicide.
The sentencing judge’s approach
The sentencing judge referred not only to the destruction of the building and the cost of its replacement, but also to the loss of what he described as irreplaceable personal records for many of FAYS’ clients and the disruption to the effective operation of the service caused not only by loss of the records, but also by relocation to temporary premises.
He referred to the appellant’s criminal history. This comprised a number of relatively minor offences dating from 1990. Her record included offences relating to prostitution, demanding with menaces and drug offences.
The sentencing judge referred to a tendency towards seizures, which he took to have been diagnosed as psychogenic in nature “possibly evolving from childhood trauma”. He noted that the appellant exhibited an “extreme reaction to interpersonal stress”, exacerbated by abuse of marijuana and alcohol.
He referred to the breakdown in the relationship with FAYS staff over access to her son.
He took into account the appellant’s conduct in publicly apologising to the local community and to those adversely affected by the offending, being an apology given in open court before she was sentenced.
He went on to refer expressly to s 10(3) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) which came into operation on 31 October 2002. This provides:
(3)A primary policy of the criminal law in relation to arson or causing a bushfire is-
(a) to bring home to the offender the extreme gravity of the offence; and
(b) to exact reparation from the offender, to the maximum extent possible under the criminal justice system, for harm done to the community.
The sentencing judge concluded:
The principal aim of the sentencing process in a matter such as this is to ensure that the sentencing principles of general deterrence and punishment are given effect to. It is of the utmost importance that all members of the community know that the offence of arson, which has the capacity to cause widespread and often unanticipated consequences, as here, will attract a severe sanction from the court. That is particularly so where there has been the deliberate destruction of a public asset.
It is important that all members of the community know that such offending will be met with a significant sentence of imprisonment so as to ensure adequate punishment.
In this matter, there is also a need for personal deterrence. I have regard to the psychological report which indicates that certain treatment may be undertaken whilst in prison, and that such a course will assist your capacity to understand. In the hope of such treatment, I direct that a copy of the psychological report be forwarded to the Department of Correctional Services, together with a copy of these remarks.
The sentencing judge went on to indicate that were it not for the plea of guilty, he would have imposed a sentence of imprisonment for 10 years. For the plea, he allowed a discount of 15 per cent, which reduced the head sentence to 8 years and 6 months, against which he fixed a non-parole period of 5 years.
He reduced both the head sentence and the non-parole period by 4 months, which approximated the time spent in custody by the appellant prior to sentencing.
By that process, he arrived at the sentence under appeal, namely 8 years and 2 months imprisonment with a non-parole period of 4 years and 8 months.
The arguments on appeal
Mr Stokes for the appellant conceded that his client was guilty of a serious offence, but argued that the sentencing judge had failed to make an appropriate allowance for the appellant’s unfortunate background and the nature of her relationship with FAYS.
As for her personal background, he submitted that the very comprehensive report furnished by the psychologist, Dr Bell, demonstrated that the appellant had an unusually dysfunctional upbringing which had resulted in a borderline personality disorder, rendering her suicidal, depressed and anxious.
Her tendency to convulsions added another complication to her condition which, amongst other things, meant that time spent in gaol represented a particular hardship to her. Mr Stokes quoted the following passage from Dr Bell’s report:
I note that Ms Davies was initially on bail for this offence. I asked her why she had relocated to Queensland, effectively breaching her bail. She told me that she had done so in order to escape further imprisonment, stating that she feared a recurrence of problems with accessing her medication while in prison. She told me that at weekends, while medication is supervised by prison officers rather than nursing staff, there had been occasions when she had not been given her anti-convulsant medication, leading to an increased occurrence of seizures and, as a consequence, her placed in isolation on canvass bedding and clothing.
As to this aspect of the matter, I note that the sentencing judge directed that a copy of his remarks and of Dr Bell’s report be furnished to the Department of Correctional Services.
Mr Stokes emphasised the dramatic effect upon his client of her loss of custody of her child and the problems which then arose in her dealings with FAYS, which eventually drove her to a state of despair to the point where, after setting fire to the building, she attempted suicide. Her life was saved only by her being rescued by people who had come to her home.
Ms Mealor for the respondent emphasised that the seriousness of the offence was underscored by the penalty provisions in s 85 of the Criminal Law Consolidation Act1935. She pointed out that the penalty range for the offence was defined according to the value of the damage, and that the penalty range moved from 10 years imprisonment for arson resulting in less than $30,000 damage to life imprisonment where damage was caused in excess of that sum. She contended that this indicated that the extent of the damage was a highly relevant factor in determining the seriousness of the offending.
She submitted that arson was in a category of offending in which deterrence both general and personal was a major consideration. That this was so, was emphasised by the terms of the 2002 amendments to s 10 of the Sentencing Act.
Ms Mealor submitted that whatever the appellant’s perceptions were as to the manner in which she was being dealt with by FAYS, the department at all times acted in good faith. They had removed the child out of concern for its welfare. They had made numerous attempts to assist the appellant, but were bound to regard the interests of the child as paramount. The appellant had missed a number of appointments and was generally difficult to deal with, displaying a tendency to be irrational, upset, aggressive and unreliable.
She submitted that the appellant’s conduct could only properly be described as a act of vengeance perpetrated against a government agency which was doing its best to assist her and her child.
Ms Mealor emphasised the very considerable difficulties posed for the staff of FAYS to continue working in a satisfactory way after much of their records and documentation, including case notes, were destroyed, some of which being irreplaceable. This meant that the extent of the loss was not limited to the physical damage to the building, but extended to the FAYS staff and their clients.
Conclusion
One cannot help but feel a good deal of sympathy for the appellant, given her personal circumstances.
It was accepted by both counsel that the penalty under appeal is severe.
However, destruction of a public building causing millions of dollars of property damage and much consequential loss and disruption to the functioning of an important government agency, puts the case into an unusually serious category.
There is no tariff or fixed penalty range applicable to sentencing for arson. In R v James[1] Walters, Zelling and Williams JJ in their joint judgment observed:
In our view, the crime of arson cannot be regarded as a crime so usually or so often dealt with in this Court as to be identified with any particular tariff or range of penalty. We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances. Varying factual situations must necessarily be encountered in relation to the crime of arson and, to our minds, there can be no established pattern of dealing with any particular set of facts. The legislature has seen fit to provide a maximum penalty of life imprisonment for arson, leaving the Court a discretion exercisable within wide limits in fixing a sentence in respect of each offender. It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serous and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court’s condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance. We entirely agree with her Honour’s remarks that “it is important that people who are likely to seek revenge by setting another’s property alight should know that, if they do so, they are likely to be visited by condign punishment”.
[1] (1981) 27 SASR 348 at 351.
Mr Stokes was not able to point to any overt error by the sentencing judge in his sentencing remarks, but submitted in effect that the sentence was simply too heavy, and that his client’s circumstances called for a more merciful approach, particularly with respect to the length of the non-parole period.
I have carefully considered his submissions. It may well be that if I had been the sentencing judge, I might have been inclined to set a somewhat lower non-parole period.
But that is not the test on appeal.
Standing back from the matter, it seems to me that the starting point of 10 years, the allowance for the plea of guilty, which was a late plea following an attempt by the appellant to abscond, and the non-parole period, were within, albeit towards the upper end, of the range of penalties appropriate in all the circumstances.
I would dismiss the appeal.
GRAY J:
Introduction
This is an appeal against sentence.
On 13 February 2006, the appellant, Jacqueline Ann Davies, pleaded guilty to one count of arson pursuant to section 85(1) of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty in respect of which is life imprisonment.
The appellant was initially arraigned on 1 November 2004, at which time she pleaded not guilty. She remained on bail until 1 February 2006 at which point she was remanded in custody.
On 30 March 2006, the appellant was sentenced by a Judge of the District Court to a term of imprisonment of eight years and two months with a non-parole period of four years and eight months.
The appellant appeals against the sentence on the ground that it is manifestly excessive in that the sentencing Judge failed to have adequate regard to her mental health and the reasons underpinning her offending.
Circumstances of the Offending
The sentencing Judge described the offending in the following terms:
On 22 April 2004, as a result of your exasperation from your perception of the method of treatment you were subjected to by those at FAYS [Family and Youth Services] who were responsible for you taking supervised access to your son who was then in foster care, you determined to extract a form of revenge. That took the form of setting alight to the FAYS office in Elizabeth Street, Mount Gambier. That occurred at about 3.45am on 22 April 2004. You did so by entering the building and spreading petrol as an accelerant in the front foyer/reception area. The petrol can and hose were located in the rear or your vehicle at your residence later in the morning of 22 April 2004.
You were also located in your home and required medical attention for burns to 12-15% of your body. When located, you had made an attempt to take your life and were asleep.
The sentencing Judge placed a considerable degree of emphasis on the impact that the fire had on the staff of the office. The Judge observed:
The FAYS building was totally destroyed by the fire. The total physical damage assessment is in excess of $3 million. This does not include the cost of the ongoing less efficient management of the now Children, Youth and Family Services office. In addition to the loss of irreplaceable personal records for many clients of that organisation, it seems, from the victim impact statements which I have read and heard, that those who are employed in the various teams which comprise this office have continuing personal and professional difficulties as a consequence of the disruption which flows from their office being destroyed and their relocation to other separate and less conducive accommodation.
Apparently, as a consequence of the loss of accommodation, they are not as happy to come to work as they perceive that they are not able to provide for their clients as they would like and were previously able to do. They see these as matters of significance, directly attributable to your act of arson. Whilst I am of the view that the victim impact statements contain, in part, emotive and irrelevant material, it is without doubt that this experience has been personally traumatic and professional [sic] destabilising for the Children, Youth & Family Services staff to such an extent that I formed the quite strong view from what was written and from the demeanour of the large numbers of staff I have observed who have attended this court on each occasion that this matter has been listed before today, and during this circuit, that it is more probable than not that some of them are now likely unable to bring an unprejudiced mind to the future consideration of matters involving you. This is a matter which may require consideration in the future by that office.
Later in the sentencing remarks, the Judge further commented on events concerning the appellant’s son and FAYS:
Your son was born on 9 April 2003. He was taken into the care of the Minister in January 2004. By mid-March 2004 relations between you and the responsible FAYS staff had deteriorated to the point where often you did not attend supervised access visits and had become regularly abusive to them. You were totally unable to recognise that it was your lifestyle which had contributed to the original care order. You threatened to harm yourself on many occasions and had become totally absorbed by the fact that your son’s father was also encouraged to exercise his rights in relation to contact with more success than you. It seems this anxiety reached a high point on 19 April 2004, which was the last occasion on which you had a contact visit with your son.
Thereafter, you became consumed by your beliefs as to the manner in which the FAYS staff dealt with you and, to your mind, prevented contact with your son. On the evening of 21 April 2004, in this anxious and depressive state, you consumed a significant quantity of alcohol and then executed your plans to light the fire. Thereafter, you went home and attempted suicide, after writing notes to your son and his father.

The appellant’s account of the period leading up to and the events giving rise to her offending is set out in the psychologist’s report in the following terms:
[The appellant] told me that the circumstances which culminated in the offence of setting fire to the Mt Gambier’s FAYS office on 22.4.04 were as follows. By way of background, she told me that she had been in an abusive relationship with [her partner], the father of her son, for four years. She stated that, even during her pregnancy with [their son], he would physically assault her. She stated that, while pregnant, she had refused to have intimate contact with him, due to her sense of repulsion at him continuing to hit her while pregnant. She told me that he had therefore forced her to sleep on the lounge throughout the pregnancy. She also described episodes where she believes that [her partner] had manipulated the police into admitting her to hospital, by telling them she was suicidal, rather than responding to her complaints that he has assaulted her.
[The appellant] told me that on one such occasion, on returning from hospital, she had found that [her partner] had taken [their son] and left to visit [his] mother in Mt Gambier. This was in Christmas 2003. She told me that he had returned a number of days later to collect her and that they spent time in Mt Gambier. While there they lost their car in a car accident, meaning that they could not return to Adelaide readily.
[The appellant] told me that [her partner’s] mother suffers from psychological problems and, “Can be paranoid”. She stated that, due to this, she and [her partner] had briefly moved into a motel but that [her partner] had returned, with [their son] to live with his mother. She told me that this was the point where she and [her partner] had finally separated. She told me that [her partner] had told her that his mother would be taking over the care of [their son] and that he had told a doctor that [the appellant] had had a seizure and fallen on [their son]. [The appellant] told me that she had sought a lawyer at this point and also had gone round to speak with [her partner] and his mother. She stated that his mother had assaulted her but that [her partner] and his mother had told the police that [the appellant] had assaulted the mother, resulting in her being charged and taken, firstly to Mt Gambier Gaol and then the Adelaide Women’s Prison.
[The appellant] told me that it was at this point that the Family and Youth Services had become involved and that their care and protection procedure had led to [her son] being put into foster care. She believes that FAYS had accepted, “Heaps of lies from [her partner] and his mum that I was using drugs, had seizures and fallen on him, and that he was scared of me. They really stacked the deck with these lies because they wanted custody of him”. She told me that [her son] was initially put into the care of [her partner] and his mum but that FAYS had recognised that this was not a safe placement and had therefore put him into the care of a foster parent.
[The appellant] told me that she had opportunity for access but that, initially, she had refused to follow the access arrangements because, “It hurt so much when I had to leave him – it broke my heart”. [The appellant] was tearful when describing this period. However she told me that she had resumed making access contact with [her son] but that, during this time, she had significantly increased her alcohol and marijuana use. She told me that this was in order to escape the emotional distress she was experiencing at having her son in foster care. [The appellant] told me that her anger with FAYS increased and that she had attended at the FAYS office on a number of occasions in order to attempt to explain to them how her circumstances were affecting her mood. She perceived them to not acknowledge her distress.
She told me that on the evening before she set the fire she had been at a local hotel, “Having a couple of drinks”. She told me that she had received a phone call from a social worker at FAYS who had told her that they were considering increasing [her partner’s] level of access to [their son] and that they were also considering, at a future point, returning [their son’s] residency to [her partner]. She told me, “I cried and cried, I couldn’t see how, after all I’d been through – the pregnancy and how he’d hit me, they’d give my baby to someone like that and that I’d have to go through him to see [my son]”.
[The appellant] told me in the hours following she drank a bottle of whisky and that, “I was thinking of what I could do to end my life. I just wanted it to be finished with”. She told me that she had formulated a plan to drive her car to a remote point and to gas herself using the car exhaust. However, she also told me, “I was just so angry and upset and hurt. It felt so unfair – I still think that. How could they give my baby to a bastard who’d hit me for five years. I was angry as hell”. She stated that, “In the past I had heard [her partner] say that he would burn them (FAYS). This all came together. I thought I was going to die, and because they’d done the wrong thing, my anger led to thoughts of revenge. It was spontaneous”.
[The appellant] indicated that the phone call from the social worker, plus her low mood, expectation that she would die and disinhibition from alcohol, marijuana and prescription Valium had combined in her formulating the plan to burn down the FAYS office, in order to avenge her anger. She told me that she had sustained burns in the fire and that she could not therefore carry out her original plan to drive to a place to kill herself and that she had taken an overdose of anticonvulsant medication at home instead.
There was no challenge to this account from the prosecution.
Personal Circumstances
To properly address this appeal it is necessary to set out the appellant’s personal history in some detail by way of background to her offending.
The appellant has led a traumatic life. She has suffered from seizures for the majority of her life. She first experienced a seizure when she was 18 months old. The seizures were frequent during her childhood and required heavy medication. They caused her a great deal of embarrassment as a child, partly because they resulted in incontinence and partly because of the reaction of people around her. They also caused her to miss a great deal of school, both through hospitalisation and because she frequently ran away to avoid being teased by her peers.
During the appellant’s frequent periods of hospitalisation, she befriended a number of other patients, particularly children, who were terminally ill and who subsequently died. According to the appellant, this led her to believe that her own life would be foreshortened. This perception was later confirmed by a neurologist who told her that she was unlikely to live until the age of 30 due to the strain on her heart caused by the seizures.
Aside from a five-year period in her early adolescent years during which she had not suffered seizures, the appellant has suffered from the seizures for her entire life. They continue to occur on an almost daily basis. A psychiatrist recently formed the opinion that the seizures were largely psychogenic in nature, possibly due to psychological trauma in childhood. The seizures are more frequent during periods of stress or distress.[2]
[2] AB 44 (Bell Report)
The appellant’s father was manic depressive and caused his family to move around a great deal during the appellant’s childhood, including relocation to New Zealand.
The appellant’s mother had suffered from polio as a result of which she had a pronounced limp. Seemingly, her mother would, at times, struggle to cope with her manic depressive husband and her daughter’s seizures. As a result, the appellant was often sent to stay with relatives or for periods at a local hospital.
The appellant’s parents separated when she was aged 12 years. She returned with her mother and three younger brothers to live in South Australia. It was at this point that her seizures stopped. The appellant’s mother worked two jobs to support the family, as a result of which she was rarely home, leaving the appellant with the bulk of the responsibility for caring for her younger brothers.
By the time the appellant was 15 years of age, she was having numerous arguments with her mother. At that time, she returned home one day to find her mother in a coma having overdosed on anxiety medication. The suicide attempt would have been fatal but for the arrival of the appellant. The appellant was extremely angry with her mother for having attempted to desert the family. She once again began to experience seizures. The conflict between the appellant and her mother increased and eventually the appellant returned to New Zealand to live with her father, who was at that stage living with his parents due to ongoing depression.
The appellant twice attempted suicide whilst living with her father and grandparents. It was proposed that she be admitted to an institution for rebellious teenagers and offenders. However, the father of a friend of the appellant agreed to accommodate her, so she was not admitted to an institution but instead left her father and grandparents to live with her friend’s father.
The appellant left school at the age of 15, having completed year 10. She had been popular at high school. She formed many friendships and had good relationships with her teachers. She did well in subjects such as English, art and music but struggled, largely due to her patchy school attendance during her earlier years, with mathematics and related subjects. Whilst living with her friend’s father in New Zealand, the appellant successfully undertook a one-year beautician’s diploma and thereafter worked in a pharmacy.
The appellant lived with the friend’s father until the age of 18. She then left New Zealand to return to South Australia. The appellant told a psychologist that the friend’s father possibly viewed his relationship with the appellant as a romantic one, however to her, it was “abusive at all levels”. The appellant told the psychologist that during this relationship, her mood was low and her view of herself was, “As if I was something to be used and abused – that I wasn’t worth anything”.
Upon returning to Australia, the appellant worked as a “stripper” for two years before becoming involved in prostitution for the following five years. During this time, the appellant was involved in two dysfunctional and abusive relationships. The first, which endured for three years, was with an alcoholic whom she eventually left because he prioritised buying alcohol over groceries. The second lasted for two years and was again terminated by the appellant due to his being a heroin addict who prioritised drugs over everything else.
After five years in the “sex industry”, the appellant determined to remove herself from the dysfunctional lifestyle and environment in which she had been living and to try and establish a more “normal” life for herself.
Shortly after, when the appellant was 22 years of age, she married. She described her husband as very controlling, insisting that she did not work, and as “a perfectionist who wanted things done his way”. The appellant told the psychologist that her husband would never allow her to go out without him and would always watch her closely, accusing her of being sexually attracted to other men. According to the appellant, if she did not comply with his demands, he would become extremely angry and shout at her, “Like a man does in a fight”. Eventually, after approximately five years, she left her husband. She told the psychologist that on leaving, “I found out what it feels like to be liberated, like I’d been locked up for the last four to five years. I felt like I’d been in a time warp”.
Shortly after, the appellant started a new relationship with her partner, the father of her son. Initially this relationship was platonic, from which both parties gained mutual support regarding their previous difficult relationships and difficult childhoods. The appellant’s initial impression was that this man was a good friend and “a great guy”. Ultimately, a romantic relationship developed. After a time, her partner began to physically and verbally abuse the appellant on an almost daily basis. A number of reports to police were made but never pursued, largely because the appellant pitied her partner. She understood his psychological problems and she loved him. The appellant told the psychologist that it was “some sort of fatal attraction that kept me in the relationship”. This relationship continued for four years. According to the appellant, her partner continued to assault her physically, even during pregnancy.
The psychologist’s report contained the following regarding the appellant’s relationships:
[The appellant] told me that she had noticed that her partners had often taken the personal self disclosures she had made to them about her past history, saying that, “They would take what hurt you and load their gun belt with it and when there are times of conflict, they would fire it back at you”. …
[The appellant] told me that, “I lost sense of my own value and myself as a good person”, due to the abusive behaviour of [her partners]. She also said that “I’m gradually getting to feel I’ve got more self value than I had before”.
The psychologist’s report also detailed events that have occurred in the appellant’s life that may have affected her cognitive functioning:
With regards to events, diseases and habits known to compromise cognitive functioning, [the appellant] told me that she had been knocked unconscious on a number of occasions, mainly as a result of seizures. She also told me that she had been knocked out most recently as a result of a seizure while in prison. She told me that she had been taken to the Royal Adelaide Hospital but not given a skull X-Ray. However she told me the first time she had been knocked unconscious was when her mother dropped her on her head as a baby, resulting in a skull fracture. [The appellant] told me that she had been knocked out on average four times a year during her relationship with [her partner], as a result of his violence towards her. She also told me that the assault by [her husband] which led to the end of their marriage had resulted in a concussion. [The appellant] also told me that she had been involved in two road traffic accidents, causing her to hit her head on the windscreen. She also stated that, during a number of attempts on her life, she had stopped breathing. In one episode of overdose on benzodiazepines, she told me that she had stopped breathing several times.
Based on his observations and on the appellant’s self-report, the psychologist did not consider that any of these events had resulted in any significant acquired brain injury.
The appellant informed the psychologist that she had attempted suicide on at least ten occasions. As noted earlier, she first attempted suicide whilst living with her father and grandparents in New Zealand subsequent to her grandmother telling her that her seizures had caused her parents’ break up.
The appellant has twice been admitted to Glenside Hospital. She has also been admitted to the psychiatry unit of the Royal Adelaide Hospital. Hospital records indicate that the appellant’s seizures were particularly frequent and severe during these times. The seizures were diagnosed as psychological rather than neurological in origin and were recognised as being associated with increased stress or distress.
The appellant has, for the most part, been an infrequent and irregular user of alcohol and drugs. She reported two periods of her life during which she used alcohol and marijuana more heavily: after her separation from her husband, and during the period whilst she was living in Mount Gambier while FAYS were considering the appropriate placement for her son.
The psychologist described the appellant as someone with a tendency towards emotional reaction rather than problem solving. He diagnosed her with a borderline personality disorder for which she required one-to-one counselling.
During the course of his sentencing remarks, the Judge gave the following summary of the appellant’s background and personal circumstances:
You are now 33 years of age. You have a criminal history that is reflective of those matters relevant to your personal circumstances, including the depressive illness.
Your personal history is set out in a very comprehensive psychological report prepared by Mr Bell.
Your family life was dysfunctional. Your father was a manic depressive. Your parents separated when you were about 12 and thereafter you had increased responsibility for your younger siblings whilst your mother worked. When you were about 15, you discovered your mother after she had an attempted suicide. Your discovery saved her life. Thereafter, you returned to New Zealand to live with your father and his parents.
In New Zealand you attempted suicide on two occasions. You were then taken into a form of care where you were sexually abused. As a consequence of this, you returned to South Australia.
Your education ended after you had completed year 10 at Enfield High School. Assessment indicates that you are of average intelligence.
In New Zealand, you worked as a beautician and in a pharmacy. On return to Australia, you worked in the sex industry.
When aged about 22, you married. By this time you had been in relationships which were affected, to some extent, by drugs and alcohol. Your marriage lasted five years. There were no children from it. Thereafter, you came into a relationship with the father of your son. That relationship moved from the romantic to the violent, involving almost daily verbal and physical abuse.
For many years, both before you went to New Zealand and whilst there, and presently, you have suffered from seizures which have been diagnosed as psychogenic in nature, possibly evolving from childhood trauma. These, together with assaults within relationships, have caused you to become unconscious on many occasions but there is no suggestion of cognitive injury.
In September 2000, upon your release from a short stay in Glenside, you were re-admitted after you had made a serious attempt on your own life.
The self-destructive acts throughout your life are seen to reflect your extreme reaction to interpersonal stress arising often from your expectations not being fulfilled.
Whilst you did not have a substantial history of drug or alcohol abuse, it seems that once your son was taken into care in early 2004 your use of marijuana and alcohol become [sic] almost daily. This undoubtedly increased your anxiety as well as your expectations and volatility.
…
The psychological report notes your clear tendency for heightened emotional reaction which is indicative of a borderline personality disorder. By the time you saw the psychologist in 2006, you had a clearer realisation of the nature and effect of your behaviour such that you expressed regret for your actions to him. You publicly apologised to the local community and to those adversely affected by your reactions, in open court, on 23 March. That is to your credit. I note that that apology, quite properly, received widespread publicity on the following day in the local press.
The Sentence
In determining the sentence to be imposed, the sentencing Judge had regard to section 10(3) of the Criminal Law (Sentencing) Act1988 (SA), discussed below, and then described other matters to which he had had regard and to which he had given weight:
The principal aim of the sentencing process in a matter such as this is to ensure that the sentencing principles of general deterrence and punishment are given effect to. It is of the utmost importance that all members of the community know that the offence of arson, which has the capacity to cause widespread and often unanticipated consequences, as here, will attract a severe sanction from the court. That is particularly so where there has been the deliberate destruction of a public asset.
It is important that all members of the community know that such offending will be met with a significant sentence of imprisonment so as to ensure adequate punishment.
In this matter, there is also a need for personal deterrence. I have regard to the psychological report which indicates that certain treatment may be undertaken whilst in prison, and that such a course will assist your capacity to understand.

The sentencing Judge then imposed sentence:
In fixing sentence, I have regard to those matters which I have mentioned. Were it not for your plea of guilty, I would have imposed a sentence of imprisonment for 10 years. Because of that plea and the savings it has facilitated, and in accord with well-known sentencing policy, I allow a discount of 15%.
You are sentenced to imprisonment for eight years and six months. I fix a non-parole period of five years. I must now make allowance for your time in custody in 2005 and 2006 until today of about four months. To do so, I reduce the head sentence to eight years and two months and the non-parole period to four years and eight months from today.
The Judge concluded by stating that it was not appropriate to suspend the sentence.
The Appeal
Counsel for the appellant contended that the sentence imposed by the sentencing Judge was, particularly in light of the appellant’s personal circumstances and background, manifestly excessive.
The crime of arson
Statutory enactment
The act of arson is an offence pursuant to section 85 of the Criminal Law Consolidation Act, which relevantly provides:
(1)     Where a person—
(a)     intending to damage property of another, or being recklessly indifferent as to whether property of another is damaged; and
(b)     without lawful authority to do so, and knowing that no such lawful authority exists,
damages, or attempts to damage, property of another by fire or explosives, the person shall be guilty of an offence.
…
(2)The offence of damaging property by fire in contravention of subsection (1) is arson.
Sections 10(1)(eb) and 10(3) of the Criminal Law (Sentencing) Act were introduced in 2002 by the Statutes Amendment (Bushfires) Amendment Act 2002 (SA). They provide:
(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(eb)   in the case of arson or causing a bushfire—the need to give proper effect to the policy stated in subsection (3);
...
(3)A primary policy of the criminal law in relation to arson or causing a bushfire is—
(a)     to bring home to the offender the extreme gravity of the offence; and
(b)   to exact reparation from the offender, to the maximum extent possible under the criminal justice system, for harm done to the community.
Examples—
1The court may, with the consent of victims of the offence or victims of the kind of harm that the offence could have caused, require the offender (under appropriate supervision) to meet with the victims.
2The court may direct that the offender (whether in prison, on parole or undertaking community service) participate (under appropriate supervision) in programs to rehabilitate fire damaged land or other property.
The same amending legislation also introduced into the Criminal Law Consolidation Act, section 85B, entitled “Special provision for causing a bushfire”.[3] Notwithstanding that, as the language and underlying purpose of sections 10(1)(eb) and 10(3), supported by the title of the amending legislation and the Second Reading Speech[4] demonstrates, the subsections are primarily directed toward addressing and deterring the deliberate lighting of bushfires, they are applicable to the crime of arson in all circumstances.
[3] Section 85B of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)     A person who causes a bushfire—
(a)     intending to cause a bushfire; or
(b)being recklessly indifferent as to whether his or her conduct causes a bushfire,
is guilty of an offence.
Maximum penalty: Imprisonment for 20 years.
(2)A bushfire is a fire that burns, or threatens to burn, out of control causing damage to vegetation (whether or not other property is also damaged or threatened).
(3)     An offence is not committed against this section if—
(a)the bushfire only damages vegetation (or other property) on either or both of the following:
(i)      the land of the person who causes the fire;
(ii)the land of a person who authorised, or consented, to the act of the person who caused the fire; or
(b)the bushfire results from operations genuinely directed at preventing, extinguishing or controlling a fire.
[4] House of Assembly, Parliamentary Debates, 19 August 2002, 1145 (The Honourable M J Atkinson).
During the course of the Second Reading Speech, the amendments to the Criminal Law (Sentencing) Act were explained as follows:[5]
Part 3 of the Bill proposes to amend the Criminal Law (Sentencing) Act 1988 to provide that a sentencing court, when determining the sentence for an offender guilty of arson or causing a bushfire, should have regard to the need to give proper effect to bringing home to offenders the extreme gravity of their offence and to exacting reparation from the offender for harm done to the community.
[5] House of Assembly, Parliamentary Debates, 19 August 2002, 1145 at 1146 (The Honourable M J Atkinson).
Section 10(3) appears to have two related purposes, as illustrated by the examples, to ensure that personal deterrence is a primary aim of sentencing for arson and to exact reparation. In my view, these measures are aimed specifically at so called “firebugs” who deliberately light bushfires for seemingly no apparent motivation other than to cause a bushfire and with very little regard to the consequences that their conduct will have for property owners, the environment and the broader community. However, as already observed, Parliament has expressly provided that section 10(3) also applies to the crime of arson generally.
In the present case the purposes to which section 10(3) is directed appear to have been overlooked by the sentencing Judge. His Honour referred to section 10(3) as having been enacted to “reflect the gravity to be attached to the offence of arson in the sentencing process”. This is contrary to both the terms and the spirit of the section. The aim of section 10(3) is specific. It is to bring home to offenders the grave consequences of their offending. As demonstrated by the examples attached thereto, section 10(3) aims to provide a sentencing judge with additional discretionary options when sentencing an offender convicted of arson. These options are designed to address what might be considered characteristics particularly associated with the crime of arson, namely, the need to impress upon offenders the impact that their offending has had on its victims and the broader community. Therefore, to the extent that the sentencing Judge considered section 10(3) as a parliamentary directive to have particular regard to the gravity inherent in the offence of arson, the Judge erred.
Legal principles
In James,[6] the Court of Criminal Appeal discussed the crime of arson and the process of determining appropriate penalties:[7]
In our view, the crime of arson cannot be regarded as a crime so usually or so often dealt with in this Court as to be identified with any particular tariff or range of penalty. We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances. Varying factual situations must necessarily be encountered in relation to the crime of arson and, to our minds, there can be no established pattern of dealing with any particular set of facts. The legislature has seen fit to provide a maximum penalty of life imprisonment for arson, leaving the Court a discretion exercisable within wide limits in fixing a sentence in respect of each offender. It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court’s condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance. We entirely agree with her Honour’s remarks that “it is important that people who are likely to seek revenge by setting another’s property alight should know that, if they do so, they are likely to be visited by condign punishment”.
[6] R v James (1981) 27 SASR 348.
[7] R v James (1981) 27 SASR 348 at 351.
James involved a young man of 21 years who set alight a printing works at which he had served his apprenticeship. James broke into the premises during the night, spreading flammable fluid throughout before setting it alight. The resultant fire destroyed a very large section of the printing works. At the time of the offending, James was affected by alcohol and was diagnosed by a psychologist as suffering a personality maladjustment for which he required psychological treatment. He had cooperated with police during their investigations, and had pleaded guilty to the charges. The sentence of five years imprisonment that had been imposed by the sentencing Judge was upheld on appeal.
Goldsmith[8] was a case involving an Aboriginal man of 33 years who had set fire to the house in which he lived. The man came from a socially disturbed background and suffered from an intellectual disability. At the time of the offending, he was also suffering post-traumatic stress disorder resulting from an earlier fire in which his friend had died. The Court recognised that notwithstanding the seriousness of the offence of arson, some circumstances may justify extending leniency. Mullighan J observed:[9]
Undoubtedly, arson is a very serious crime and usually calls for a substantial term of imprisonment. We have been referred to R v James (1981) 21 SASR 348 and R v Molner (unreported, Court of Criminal Appeal, 21 November 1988) which make that proposition plain. However, there may be circumstances which justify leniency in sentencing for this serious type of crime, and I think this is such a case. Clearly, a sentence of imprisonment was justified, but in fixing the sentence the learned sentencing judge not only had to have regard to the seriousness of the crime, but also to all of the matters of background and the personal circumstances of the appellant and, in my view, how it might be expected that prison would affect him should he be obliged to serve the sentence. …
General deterrence must play a significant part in a sentence for the crime of arson, as well as personal deterrence. However, other circumstances may also play a significant role in the determination of a just sentence.
[8] R v Goldsmith (1995) 65 SASR 373.
[9] R v Goldsmith (1995) 65 SASR 373 at 375-376.
In the course of his brief reasons concurring with the decision of Mullighan J, Debelle J observed:[10]
It is the unusual, if not exceptional, circumstances of this case which justify this court in interfering with the exercise of the sentencing discretion. This case is so far removed from the ordinary that it justifies a sentence which is a departure from the ordinary kind of sentence which might otherwise be imposed.
With respect, I do not think that sufficient weight was given to the circumstances both of the offence and of the offender which have already been outlined by Mullighan J. The elements of general deterrence, which might otherwise apply, do not apply to the same degree as they might in the more usual kind of offence.
Given the exceptional circumstances pertaining to Goldsmith, the Court allowed the appeal and set aside the sentence of four years with a non-parole period of two years in place of a head sentence of two years with a non-parole period of one year. The Court exercised its discretion to suspend the sentence.
[10] R v Goldsmith (1995) 65 SASR 373 at 376-377.
These decisions involved the imposition of head sentences of substantially lesser terms than the head sentence imposed on the appellant in the present case.
In Spinks,[11] the Court of Criminal Appeal allowed an appeal against a sentence of imprisonment for four years and six months with a non-parole period of 18 months. That case involved a man who had burned down the family home subsequent to a property dispute with his estranged wife. At the time, he suffered a major depressive illness. The man had no previous criminal history, had been of excellent character prior to the offence, having worked for many years as a teacher, was contrite and remorseful and had since developed a relationship with another woman whom he intended to marry. On appeal, the Court imposed the same sentence as had been fixed at first instance, but exercised its discretion to suspend the sentence. In the course of his reasons, Doyle CJ observed:[12]
To my mind, the court must also bear in mind the need to protect victims of such offences. Here, the insurer is one victim, often overlooked; the former wife of the appellant is another victim. It’s not necessary or appropriate for this court to allocate blame for the marital problems, but spouses in such situations are entitled to think that the law will not only decide their disputes, but protect them and their property while the dispute is in progress. These are relevant matters to consider in relation to the decision whether to suspend or not. It’s also relevant that the offence does not seem to have been committed on the spur of the moment, although it was undoubtedly committed when the appellant was suffering from a severe depressive condition.
There was significant damage to property, and that’s an important matter. It’s also relevant that this is a crime which is often difficult to detect, and it’s often committed out of vindictiveness, as here. These are factors relevant to the offence, to its nature and particular circumstances, which make it more difficult to say that the sentence can be suspended. But, I remind myself that the purpose of a suspended sentence is, despite the seriousness of the offence, to facilitate rehabilitation. It’s not a power to be exercised lightly, but a good record, such as is present here, the particular circumstances of the offence which we find here, and I mention merely to emphasise it, the contrition, the prospects of rehabilitation, and the mental condition from which the appellant was suffering, all weigh in favour of a decision to suspend.
In the end, although I regard the decision as by no means a straightforward or a simple one, I’m influenced by the circumstances personal to the accused, and for that reason I am in favour of suspending the sentence of imprisonment imposed by his Honour.
[11] R v Spinks (1996) 185 LSJS 141.
[12] R v Spinks (1996) 185 LSJS 141 at 144.
These authorities demonstrate that, notwithstanding the gravity associated with the crime of arson, when sentencing in cases where good reason exists to adopt a merciful approach, courts have considered it appropriate to do so.
Manifest excess
This was a serious crime. The monetary value of the damage caused to public property was in excess of $3 million. Personal records of clients and of the government department were destroyed. The fire was lit as an act of revenge for a perceived wrong. Arson has been described as a difficult crime to detect and generally has been thought to be a crime calling for a period of imprisonment. Deterrence is an important sentencing consideration.
There were significant mitigating circumstances to be considered in the present case. The appellant was seriously disturbed and emotionally distraught. Her distress related to the way in which FAYS was handling issues concerning her young child. As the evidence disclosed she was mentally ill at the time. Whilst this did not give rise to a defence, it provides an explanation for her conduct. Her illness and emotional disturbance do not provide an excuse for her crime but do operate as significant mitigatory factors.
As mentioned earlier, the appellant sustained severe burns of between 12 and 15 per cent of her body. Following the lighting of the fire she attempted suicide. These circumstances further demonstrate the extent of her emotional disturbance at the time of the offending.
The evidence also established that with appropriate ongoing treatment, the appellant had real prospects for rehabilitation. It is hoped that such treatment would already have commenced whilst the appellant has been in custody. This was a case where a clear basis had been established for the conclusion that the appellant could be rehabilitated.
The sentencing remarks indicate that the Judge placed far greater weight on general deterrence and punishment as factors relevant to sentencing than he did on the personal circumstances of the appellant. As previously observed, the personal circumstances of the appellant detailed above, were exceptional in a similar manner to those of the accused in Goldsmith, where the Court saw fit to place particular emphasis on personal circumstances and, in view of them, to adopt a merciful approach. To this extent, the Judge erred in failing to have adequate regard to the personal circumstances of the appellant.
At the commencement of the sentencing remarks, the Judge referred to the appellant having fled the jurisdiction whilst on bail in relation to these charges. The Judge observed:
You first appeared in this court in Adelaide on 1 November 2004 and entered a plea of not guilty to this charge. On 4 July 2005 you failed to appear in this court in Mount Gambier and a warrant was issued for your apprehension. You were subsequently arrested in Queensland on 1 February 2006 and returned to South Australia. At about that time a plea of guilty was indicated. Such plea was first entered on 13 February 2006 and you were remanded to Mount Gambier to the present circuit.
Later in his remarks, the Judge stated that in fixing the sentence, he had “regard to those matters which I have mentioned”.
The fact that the appellant fled the jurisdiction is not relevant to sentencing in respect of the present offending. It constitutes an offence that post-dated the offending with which the Judge was concerned. An explanation was proffered, which explained the appellant’s mental state at the time of absconding.
In light of the earlier reference to authorities and the above considerations, the starting point of 10 years designated by the sentencing Judge would appear to be beyond the range of appropriate sentences for offending of this nature. It represented a starting point well beyond that implicit in James, Goldsmith and Spinks. It is a manifestly excessive penalty.
It is therefore appropriate that this Court re-sentence the appellant.
Mercy
In Miceli,[13] the Victorian Court of Appeal recognised the doctrine of mercy as relevant to the exercise of sentencing discretion. In Cobiac v Liddy, Windeyer J observed:[14]
The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy… This is not because mercy, in Portia’s sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.
To like effect were the following observations of King CJ in Osenkowski:[15]
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
[13] R vMiceli (1997) 139 FLR 309.
[14] Cobiac v Liddy (1969) 119 CLR 257 at 269 (footnote added).
[15] R v Osenkowski (1982) 30 SASR 212 at 212-213.
In Miceli, after hearing submissions from counsel seeking a merciful approach, the sentencing Judge commented:[16]
I am not here to dispense mercy, I am here to dispense justice.
On appeal, the trial Judge was reprimanded for so commenting.[17] Having referred to the authorities cited above, Charles JA observed:[18]
The learned judge was indeed, as he said, there to dispense justice. His Honour was also there to consider whether, on the evidence before him, a reasonable basis existed in well-balanced judgment for adopting a course which might bear less heavily on the applicant than if he were to receive his just deserts. It would be quite wrong for anyone to have thought that our system of justice did not entitle the prisoner standing for sentence to receive proper consideration of any claim he may legitimately have had to the exercise of clemency.
The discretion to adopt a merciful approach to sentencing should only be used in exceptional circumstances to allow weight to be given to factors that are ordinarily not regarded as relevant mitigating circumstances.[19]
[16] R v Miceli (1997) 139 FLR 309 at 312.
[17] R v Miceli (1997) 139 FLR 309 at 312-313 (Tadgell JA).
[18] R vMiceli (1997) 139 FLR 309 at 315.
[19] R v Penno [2004] SASC 354 at [52]-[55]; Lowery (1992) 14 Cr App R 485; See also Richard G Fox, “When Justice Sheds a Tear: The Place of Mercy in Sentencing” (1999) 25 Monash University Law Review 1.

In my view, the circumstances of this case are not unlike those in Goldsmith in terms of being exceptional and therefore deserving of leniency. The sentencing Judge in the present case failed to have adequate regard to the appellant’s background circumstances, and, in particular, to the events giving rise to her offending. This is a case that calls for justice to be tempered with mercy.
Re-sentence
When re-sentencing, regard must be had to the seriousness of the appellant’s offending, the impact on FAYS and others, and the need for considerations of deterrence.
However, as previously observed, the personal circumstances of the appellant were exceptional and warrant the adoption of a merciful approach.
I would commence with a starting point of seven years’ imprisonment, which I would reduce to six years on account of the appellant’s plea. I would give the appellant credit for the four months that she had already spent in custody at the date of sentence by the District Court Judge. This leads to a head sentence of five years and eight months’ imprisonment. I would fix a non-parole period of two years and three months.
I would not suspend the sentence. I do not consider that good reason exists to do so. Whilst the personal circumstances of the appellant in this case may bear some similarity to those of the accused in Goldsmith, the circumstances of the offending in this case are such as to warrant an immediate custodial sentence.
Having regard to the provisions of sections 10(1)(eb) and 10(3) of the Criminal Law (Sentencing) Act, I would draw to the attention of the Correctional Services Department the desirability of the appellant meeting with appropriate officers of the Department for Children, Youth and Family Services – subject to their agreement. In the event that those officers were prepared to meet with the appellant, I would require the appellant, under appropriate supervision, to meet with those officers. I would also direct that the appellant, whilst in prison, undertake community service by participating under appropriate supervision, in the rehabilitation of fire-damaged property. In this way the recent sentencing initiatives of Parliament can be directly implemented.
The sentence that I propose would commence from 30 March 2006, the date of sentencing by the District Court.
Conclusion
I would allow this appeal. I would set aside the sentence imposed by the District Court. I would sentence the appellant to imprisonment for five years and eight months. I would fix a non-parole period of two years and three months. I would decline to exercise my discretion to suspend the sentence. The sentence will be taken to have commenced on 30 March 2006. I would make the requirement and give the direction earlier identified pursuant to section 10(3) of the Criminal Law (Sentencing) Act.
VANSTONE J. In my opinion this appeal should be dismissed for the reasons given by Perry J.