R v Dunn - [2007] NSWCCA 312

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Dunn v Regina [2007] NSWCCA 312
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/00003326001

HEARING DATE(S): 01/11/2007

JUDGMENT DATE: 13 November 2007

PARTIES:
Darren Brian Dunn - Applicant
Regina - Respondent Crown

JUDGMENT OF: Handley AJA Hoeben J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0039

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 13/12/2006

COUNSEL:
Mr P Byrne SC - Applicant
Mr G Rowling - Respondent Crown

SOLICITORS:
SE O'Connor, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:
Sentence - application of s21A(2)(h) of Crimes (Sentencing Procedure) Act 1999 - did it apply to false belief that victim was a paedophile - effect of accumulation of sentences to provide a non-parole period greater than 75% of the total sentence - whether Court should intervene.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:

DECISION:
Leave to appeal against sentence granted
Dismiss the appeal against sentence on Count 2 (malicious damage by fire on 29 August 2005)
Allow the appeal against sentence on Count 3 (maliciously destroy by fire on 3 October 2005)
Sentence passed in respect of Count 3 quashed
In lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 4 years and 2 months commencing on 14 April 2007 and expiring on 13 June 2011 with a balance of term of 1 year and 10 months expiring on 13 April 2013

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/00003326001
HANDLEY AJA
HOEBEN J
SMART AJ
Thursday 13 November 2007

Darren Brian DUNN v REGINA

Judgment

HANDLEY AJA: I agree with Hoeben J.
HOEBEN J:
Offences and sentence
On 9 May 2006 the applicant was arraigned on charges that:
Count 1 – On 29 August 2005 at Riverwood did maliciously destroy by fire a garage at 32 Keats Avenue which contained certain motor vehicles.
Count 2 – On 29 August 2005 at Riverwood did maliciously damage, by means of fire, certain property namely a residential flat at 2/24 Coorabin Place, the property of the New South Wales Department of Housing.
Count 3 – On 3 October 2005 at Riverwood did maliciously destroy, by means of fire, certain property, namely a residential flat at 2/24 Coorabin Place, the property of the New South Wales Department of Housing.
The applicant pleaded not guilty and the trial proceeded before Marien DCJ and a jury. On 23 May 2006 the applicant was found guilty of counts 2 and 3.
The counts in relation to which guilty verdicts were returned were offences contrary to s 195(b) of the Crimes Act 1900. These offences carried a maximum penalty of 10 years imprisonment. His Honour was asked to take into account on a Form 1 in respect of the sentence for count 2 a charge that the applicant on 14 October 2005 had in his possession a prohibited drug, namely 0.5 grams of cannabis.
The applicant came before Marien DCJ for sentence on 13 December 2006. The sentences imposed by his Honour were as follows:
Count 2 – A fixed term of imprisonment of 2 years commencing on 14 October 2005 and expiring on 13 October 2007.
Count 3 – A term of imprisonment with a non-parole period of 4 ½ years commencing on 14 April 2007 and expiring on 13 October 2011 with a balance of term of 18 months expiring on 13 April 2013.
The combined effect of those sentences was a term of imprisonment of 6 years with a balance of term of 18 months. The applicant has appealed against those sentences.
Factual background
In August – October 2005 the applicant was living in a rented unit at 3/24 Coorabin Place, Riverwood. At that time a Mr Ibrahim Arja lived in the adjoining unit at 2/24 Coorabin Place. The block of units comprised five units, all of which were owned by the NSW Department of Housing.
In the early hours of Monday 29 August 2005 the applicant lit a fire on the front porch of Mr Arja’s unit using some chairs which were on the porch. At the time Mr Arja was overseas and that was known to the applicant. As a result of the fire the chairs were destroyed, the lounge-room window which looked out onto the porch was fire damaged and there was smoke damage to the porch and lounge-room. When the fire brigade arrived the applicant was observed to be attempting to extinguish the fire with a garden hose.
On 30 October 2005 shortly after 11pm the applicant lit another fire at Mr Arja’s unit. Although Mr Arja had returned from overseas he was not in the unit at the time. The applicant lit the second fire in the area of the front window. The fire completely burnt out Mr Arja’s unit and also caused damage to the applicant’s unit and to the entire building. As a result of the fire the Department of Housing deemed the building to be uninhabitable.
Remarks on sentence
Having set out the basic facts, his Honour sought to determine the applicant’s motivation in lighting the fires. His Honour confronted some difficulties in that regard in that the applicant did not give evidence at trial. The evidence which his Honour relied upon was that of a police informer, Smith, concerning a conversation which he had had with the applicant. His Honour also relied upon the contents of a report of Dr Richard Furst, dated 5 October 2006. Dr Furst was a psychiatrist whose report was tendered on behalf of the applicant in the sentence proceedings.
His Honour found that the conversations between the applicant and Smith produced two possible motives for lighting the fires. In a conversation on 6 October 2005, three days after the second fire, the offender told Smith that as a result of the fires the Department of Housing would have to relocate him. He particularly wanted to move to the Sutherland Shire where he believed he would be more successful with women. Later in that conversation the applicant said, “You know I’ve burnt that joint twice next door mate. Twice since it’s been burnt out. The first time was all right, it was good because he’s a rock spider used to live in there. So as soon as I did that …I just lit his place up.” It was common ground that the allegation that Mr Arja was a “rock spider” was completely false. At the trial Mr Arja gave evidence he had always got along well with the applicant and that they had never had a disagreement or argument.
The following was recorded as part of the history taken by Dr Furst from the applicant:
“He told me that both fires were meant to be a “scare tactic” as he was convinced the person living at 2/24 Coorabin Place Riverwood was a “rock spider” … a child molester.
He explained that he had been at the local shops when someone pointed his neighbour out to him and said “See that man, he’s a rock spider”. He stated that this is not the sort of thing which is said lightly and he believed this man. He further explained that the intention of the fires was to get either himself or his neighbour moved by the Department of Housing because he could not bear to live next to a child molester.”
The applicant told Dr Furst that he was intoxicated with alcohol and cannabis and was “pretty drunk” on both occasions that he lit the fires. He estimated that he had consumed about 12-15 schooners of beer and one to two grams of cannabis on each occasion.
The applicant told Dr Furst that he had been sexually abused as a child. Dr Furst concluded that due to the applicant’s past victimisation as a child, he became intensely distressed and was seeking to move away from his neighbour at the time of lighting both fires.
His Honour also had before him a report from Professor Reid dated 20 October 2006. That report stated that the applicant associated his drug and alcohol abuse with his childhood sexual assault and ever since that time whenever he heard about paedophilia or suspected someone of being a paedophile he became angry and abused alcohol and at times acted inappropriately.
“He told me that prior to committing the offence for which he facing charges he had heard that his neighbour was a suspected paedophile. On hearing this he became very upset and started drinking and during a binge he set fire to the neighbour’s property.”
His Honour noted that the applicant’s assertion of childhood sexual abuse was at odds with a report of Dr Andrew Walker dated 3 November 2004 where the applicant had expressly denied any childhood sexual abuse. Dr Walker’s report had been prepared for a Parole Board hearing in relation to other earlier offences.
Taking that evidence into account his Honour reached the following conclusion:
“I am satisfied beyond reasonable doubt on all the evidence before me that a significant factor in the offender’s motivation to commit these offences was his feelings of antipathy towards his neighbour Mr Arja who he believed without any justification at all, was a paedophile. That is, in my view, a significant aggravating factor in relation to the commission of these offences: see s21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999.
…
As is apparent from my comments, far from being any kind of justification or mitigatory matter in relation to the commission of this offence, the view that the offender held about Mr Arja and the actions that he took in relation to that view constitute, in my view, an aggravating factor.” (ROS 8)
His Honour concluded that the offences were committed completely without regard to public safety. His Honour accepted that the applicant did not intend to harm Mr Arja personally. Nevertheless both fires had the real potential to cause major property damage and to threaten human life. In lighting the fires the applicant was not to know whether the fires could have spread to other units in the block thereby threatening the lives of residents. His Honour characterised the conduct in lighting the fires as constituting “recklessness of a very high order”.
Another aggravating factor which his Honour took into account was that both offences had been committed while the applicant was on parole for two offences of robbery while armed with a dangerous weapon. Those offences had been committed in July 2000.
In relation to the applicant’s subjective case his Honour noted that the applicant was born on 26 July 1969 and was 36 at the time when he committed the offences. The applicant had a lengthy and serious criminal history comprising convictions for armed robbery, robbery in company as well as stealing, assault, malicious damage, malicious injury and break, enter and steal.
The applicant had a dysfunctional upbringing. His parents separated when he was six years of age and he was raised by his mother who was an alcoholic. The applicant told Professor Reid, a neuro-psychologist, that he witnessed a lot of domestic violence throughout his childhood. He had left school in year 9 and thereafter had a number of different types of labouring jobs. He had last worked in the early 1990’s.
He commenced to drink alcohol at the age of 10 or 12 years and had continued to drink heavily ever since. His average daily consumption of alcohol was a case of beer and a bottle of scotch. He also used marijuana and in 1999 started using heroin. He was in a relationship at the time of these offences and told Professor Reid that he would like to marry and have children.
Professor Reid assessed the applicant’s intellectual functioning to be of borderline intellectual ability. Professor Reid assessed him as having a long-standing history of early conduct disorder and later anti-social personality disorder. He diagnosed alcohol dependence as well as heroin abuse. He thought the applicant had some insight into his alcoholism and criminal culpability. Because much of his time had been spent in structured environments, such as boys’ homes and prison, the applicant had exhibited a tendency to relapse and offend when out of prison. Professor Reid thought the applicant’s ability to live independently without supervision was guarded. His Honour accepted as genuine the expressions of contrition and remorse recorded by Professor Reid.
The assessment of Dr Furst was similar. He thought the applicant was suffering from post-traumatic stress disorder triggered by his childhood sexual abuse and that this had contributed to his substance abuse. He said:
“He is vulnerable to addiction given his strong family history of alcohol dependence, early traumas in the family home, childhood sexual abuse, poor literacy and social skills which have ensued from his childhood experiences. This has been further exacerbated by a lengthy period of incarceration as an adult.”
In relation to those matters his Honour reached the following conclusion:
“The fact that the offender was intoxicated at the time he committed these offences and his clearly erroneous belief that his next door neighbour was a paedophile in no way mitigates the offender’s criminal culpability in the commission of these offences. Further, in my view, the linking of the commission of the offences with the offender’s asserted childhood sexual abuse as is suggested by Dr Furst, does not mitigate his culpability. I should say however that that link must be looked at somewhat guardedly as the offender reported no childhood sexual abuse to Dr Walker.” (ROS 12)
With regard to the objective seriousness of the offences his Honour assessed the first offence (count 2) to be in the middle range of objective seriousness for offences of this kind and the objective seriousness of the second offence (count 3) to be in the upper range.
Because of the guarded opinion by the doctors, his Honour had concerns as to the future prospects of rehabilitation of the applicant. His Honour found no special circumstances warranting a variation of the statutory ratio between the term of the sentence and the non-parole period.
His Honour regarded the offences as being quite separate with over a month between them. His Honour was of the opinion that there had to be some partial accumulation of the sentences. Since the applicant had been in custody, bail refused, since 14 October 2005, his Honour took that date as the start point for the sentences.
Appeal
Ground of Appeal 1 – The sentencing judge erred by taking into account as an aggravating factor that the offences were “motivated by hatred or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)” s21A(2)(h), because the offender believed the victim to be a paedophile.
Ground of Appeal 2 – The sentence is manifestly excessive.
It was submitted, on behalf of the applicant, that his Honour’s application of s21A(2)(h) of the Act was wrong. The evidence before his Honour made it clear that the applicant’s actions in lighting the fires were directed at Mr Arja personally and were not directed at any particular group. It was submitted that the subsection was directed at offences against persons which were motivated by hatred or prejudice against a group to which it was believed those persons belonged and had no application where there was particular dislike or animosity between two individuals.
In my opinion the challenge to his Honour’s application of subsection 21A(2)(h) fails. The subsection relevantly provides:
“21A(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(h) The offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability).”
The facts found by his Honour were that the applicant believed Mr Arja to be a paedophile. A significant factor in the applicant’s motivation was his feelings of antipathy towards Mr Arja because he believed him to be a paedophile. In relation to the evidence generally the motivation was described by the applicant to Dr Furst as a “scare tactic” and there was no evidence of any other basis for ill-will between Mr Arja and the applicant. On the contrary Mr Arja believed that they got on well together.
Applying s21A(2)(h) to those facts, it is clear that the offences come fairly and squarely within it. The offence was motivated by a hatred or prejudice against Mr Arja solely because the applicant believed him to be a member of a particular group, ie paedophiles. The examples given in parentheses are merely that, ie examples, they do not comprise an exhaustive list of the groups envisaged by the subsection.
In my opinion his Honour was correct in applying the subsection in the way in which he did.
In relation to the second ground of appeal, three specific submissions were made. The first related to s44 of the Act. The submission was that the combined effect of the two sentences was to produce a non-parole period which was in excess of 80% of the head sentence. It was submitted that this brought about a result which was contrary to the rationale behind s44 that in the sentencing process appropriate time be allowed for supervision of offenders after release.
The second submission related to statistical information concerning offences of this kind. It was submitted that the Judicial Commission statistics indicated that about 98% of all offenders dealt with between October 1999 and September 2006 received lesser sentences than those imposed by his Honour. Only 1 of 61 offenders received a greater head sentence and of 55 offenders who received non-parole periods, none received a greater non-parole period.
The final submission was that his Honour failed to have adequate regard to the circumstances of the offences and in particular subjective matters which provided an explanation for the offences. The circumstances to which the Court’s attention was drawn were:
(a) The offences were committed while the applicant was intoxicated.
(b)The link between the offences and the applicant’s history of childhood sexual assault.
(c) The reasonable prospects of rehabilitation.
(d)While the offender had a significant criminal history the only offence of a similar nature was committed in 1984.
(e)There was evidence that the disclosure of the childhood sexual abuse could assist with the applicant’s rehabilitation.
As this Court has said on many occasions, the Judicial Commission statistics can be of assistance but their use has considerable limitations. Each case depends on its own particular facts and nothing is known of the cases on which the statistics placed before the Court in this case, were based. Specifically it is not known how many of these cases involved pleas of guilty as distinct from sentences passed after a trial.
No challenge has been made to his Honour’s characterisation of the two offences as being in the middle and upper range of objective seriousness for offences of this kind. The aggravating features were significant including the element of recklessness to which his Honour made specific reference. The applicant’s consistent serious offending over many years required that his Honour have due regard to retribution, deterrence and protection of society in formulating the sentences. The statistical information placed before the Court is not indicative of any error on the part of his Honour.
In relation to the particular considerations to which the Court was referred, these were largely taken into account by his Honour in his remarks on sentence. In view of the different history recorded by Dr Walker in respect of any childhood sexual assault, his Honour was entitled to be guarded in the use which he made of that history. In the circumstances I am not persuaded that his Honour failed to have regard to any of the matters to which the Court was referred so as to amount to error and require the passing of a different sentence.

The submission in relation to s44 is, however, in a somewhat different category. I appreciate that the section does not create a statutory norm in relation to the proportion of the non-parole period as against the total term of the sentence and that special circumstances are required only where the proportion is to be less than three quarters. Nevertheless general sentencing principles suggest that where there is a departure from the statutory ratio there should be some reason provided. It is not clear here that his Honour appreciated that the combined effect of the sentences was to produce a non-parole period in excess of 80% of the head sentence. If he did he failed to indicate why he thought such a departure from the statutory ratio was appropriate.
It has been held by this Court that where one or more sentences are made cumulative upon another sentence so as to produce a non-parole period which is in excess of the statutory ratio that of itself may amount to special circumstances. On the facts of this case that consideration and the absence of an explanation as to why the non-parole period has been increased beyond the statutory ratio, lead me to conclude that this Court ought intervene so that the combined effect of the sentences conforms with the statutory ratio. A reduction of 4 months in the non-parole period in respect of count 3 would substantially achieve that result.
Conclusion
The orders which I propose are as follows:
Leave to appeal against sentence granted.
Dismiss the appeal against sentence on Count 2 (malicious damage by fire on 29 August 2005).

Allow the appeal against sentence on Count 3 (maliciously destroy by fire on 3 October 2005).

Sentence passed in respect of Count 3 quashed.
In lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 4 years and 2 months commencing on 14 April 2007 and expiring on 13 June 2011 with a balance of term of 1 year and 10 months expiring on 13 April 2013.
SMART AJ: I agree with Hoeben J.

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AMENDMENTS:

13/11/2007 - typographical error - Paragraph(s) 42

LAST UPDATED: 13 November 2007