R v Ezekiel (No 2)
[2022] ACTSC 273
•10 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ezekiel (No 2) |
Citation: | [2022] ACTSC 273 |
Hearing Dates: | 23 June, 31 August, 27 September 2022 |
DecisionDate: | 10 October 2022 |
Before: | Kennett J |
Decision: | See [69]–[70] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – where fire lit in medium-density residential dwelling – where offence is an act of family violence – where offender has history of committing serious family violence offences – consideration of the Verdins principles |
Legislation Cited: | Criminal Code 2002 (ACT) s 404 Crimes (Sentencing) Act 2005 (ACT) ss 7, 29, 33, 34B Family Violence Act 2016 (ACT) s 8 |
Cases Cited: | DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 R v Wrigley [2015] ACTSC 114 |
Parties: | The Queen ( Crown) Lucas Ezekiel ( Offender) |
Representation: | Counsel B Morrisroe ( Crown) T Lee ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 296 of 2021 |
KENNETT J:
Introduction
The offender, Lucas Ezekiel, is to be sentenced for one count of arson committed on 13 August 2021, contrary to s 404(1) of the Criminal Code 2002 (ACT). He pleaded guilty to this offence on 29 April 2022.
The maximum penalty for this offence is imprisonment for 15 years, a fine of $240,000 or both.
Facts
During the early weeks of August 2021, the offender had been residing in a unit in O’Connor (the unit) with the lawful occupier (the complainant), who is his estranged wife.
The unit formed part of a complex containing eight government housing units. Each unit is of two stories and joined to others by at least one shared wall.
On the evening of 13 August 2021, the offender was alone in the unit (the complainant having left some days earlier). While alone, he deliberately lit a fire on the coffee table in the loungeroom. This fire caused:
(a) extensive damage to the north facing window frames on both levels;
(b) extreme heat damage to the gutters of the roof;
(c) damage to the underside of the floor beams on the second floor;
(d) damage to the timber flooring on the second floor;
(e) damage to the door, frames and beam of the entry door;
(f) extensive damage to the entirety of the ground floor; and
(g) damage to the exterior rear side gutter and eaves.
The fire also caused damage to an adjoining unit, namely:
(a) damage to plastic roofing sheets on the front porch;
(b) thermal damage to the windows above the front porch;
(c) smoke damage to the stairs and top floor; and
(d) minimal smoke damage to a bedroom and bathroom.
At 11:57PM on 13 August 2021, the offender called ACT Ambulance Services. He told them the address of the unit and that he had “burnt the house down”. The operator asked whether the house was currently on fire and whether the offender had “done that”. The offender responded “yeah”.
At around 12AM on 14 August 2021, the offender was sitting outside the unit on a park bench with a dog. Somebody who lived in the unit complex approached the offender and said words to the effect of “why did you do it? did you do it?”. The accused said “yes I did it”, and “I’ve been trying to call people all day. Nobody will listen to me”. The offender was then asked “so, what? you flip out on the ice and set the place alight?” to which he responded “yeah, nobody was listening”.
ACT Fire and Rescue attended the scene to suppress the fire. They observed an “abnormally rapid-fire spread”. After disconnecting the utilities, ACT Fire and Rescue successfully extinguished the fire. A section of the ceiling to the bedroom of the adjoining unit was required to be cut open.
On 14 August 2021, a crime scene investigator attended the scene. On the basis of an external examination, she concluded that the fire could have been started in the kitchen, bedroom or lounge room. She could not determine the method of ignition. She also concluded that she was “unable to determine if the fire was deliberately lit or was an accident”.
The offender made various admissions while at the scene and while at the Canberra Hospital receiving treatment. He told an ACT Ambulance Services officer that he lit the fire with paper, a lighter and deodorant. He told a police officer that he had “piled up paper on the loungeroom on the ground floor”.
In terms of his motivation, when speaking to the ACT Ambulance Services officer at the scene, the offender denied wanting to harm himself. Rather, he said he was motivated by “self-sabotage”. During the same conversation the offender looked at the unit and said “all gone… good”.
The offender also said that he had consumed “ice” either the previous day or the day before that.
Objective seriousness
Arson can cover a wide variety of circumstances. The real gravity of the offence lies in the intent with which it is committed: see R v Wrigley [2015] ACTSC 114.
The offender’s motivation for the offending was confused and there is dispute between the parties as to what factual finding, if any, can be made regarding intention. The position of the Crown is that the offence was committed primarily with the intention to “hurt” the complainant. (I understand the reference to “hurt” to be to either emotional or psychological harm, or to causing inconvenience. The complainant was absent when the fire was lit and there is nothing to indicate an intention to cause her physical harm.) The position of the offender is that the offending was a means of attempting suicide or a misguided attempt to obtain attention through threat and risk of self-harm.
As noted at [12] above, at the scene, the offender told an ACT Ambulance Services officer that the offending was not a suicide attempt but that it was rather motivated by “self-sabotage”.
He later told the author of the pre-sentence report that he had intended to remain inside, but after starting the fire he felt a sense of self-preservation that caused him to alert authorities and leave.
He gave a similar account to the author of a forensic neuropsychological assessment (Ms Barhon), reporting significant distress arising from the deterioration of his relationship with the complainant. On the offender’s account, the complainant had commenced employment as “an escort”, resulting in him seeing her with other men inside the house, and in feelings of rejection and jealousy that he had been trying to mask by abuse of substances and attention seeking behaviours including self-harm.
In evidence are Facebook messages between the offender and the complainant showing that the two were experiencing interpersonal conflict at the time of the offending. The complainant sent the offender a picture of a male torso. He replied:
Ahh don’t know how I’ll take a pic of burning the house down… Outside I suppose [thumbs up emoji]
As the parties accepted, the offence represents an act of family violence. The preamble to the Family Violence Act 2016 (ACT) (FV Act) states, ‘‘‘family violence” extends beyond physical violence’. It extends to emotional or psychological abuse, threatening behaviour or coercion and includes damaging property: s 8. The definition of ‘emotional or psychological abuse’ in the FV Act refers to ‘behaviour by a person that torments, intimidates, harasses or is offensive to the family member including by the person’s exploitation of power imbalances between the person and the family member’. The non-exhaustive list of examples that follow the definition includes ‘threatening to self-harm as a way of intimidating the family member’.
I do not consider that the Crown has established beyond reasonable doubt that the offence was committed primarily with the intention to “hurt” the complainant. But nor do I consider that the offender has established that, on balance, the offending was a means of attempting suicide. The offence is more appropriately characterised as a coercive means of seeking attention from the complainant, or the community more broadly, by an extreme behavioural outburst involving damage to her property. None of the offender’s comments at the scene refers to the offending being a suicide attempt. To the contrary, the agreed facts make clear that he denied this when speaking to ACT Ambulance Officers. Noting this denial and that the question of intent is an area of significant dispute, I am reluctant to put significant weight on the subsequent explanation given to the report authors which is self-serving and untested under cross-examination.
Although the Facebook messages demonstrate some degree of premeditation, it was not significant. The fire was lit using household objects. There is no evidence that the offender used a hydrocarbon-based fuel to accelerate the development of the fire.
There was a moderate degree of risk to life associated with the offending. Although nobody other than the offender was in the unit, the offending occurred in a medium-density unit complex and there was, therefore, a significant risk of the blaze expanding to engulf adjoining units. The offence was committed at a time where there was a significant risk that the occupants of the adjoining units would be home and, more significantly, asleep and therefore unable promptly to detect the fire. This increased the degree of risk to life associated with the offending.
Arson is, by its nature, a serious offence. While the greatest risk posed by the fire was to the offender himself, as Burns J observed in R v NI [2016] ACTSC 361 at [23], there is always the potential for any fire to spread beyond control placing the welfare of others at risk. This is particularly so in circumstances of the kind mentioned in the previous paragraph.
There was significant public expenditure and inconvenience associated with the fire. This extends beyond the damage done to the two units (which are both public housing units and cost $733,364.85 to repair) to include the expense associated with the need to deploy employees of ACT Fire and Rescue. The need to evacuate would have caused significant inconvenience to occupants of the complex.
Noting the factors set out above, I assess the objective seriousness as being in the mid-range for this type of offending, but the upper end of that range.
Subjective circumstances
The offender is 36 years of age.
He was raised in South Australia and is one of two children born of his parents’ union. Following the separation of his parents while he was in primary school, he was raised by his mother. He reported to the pre-sentence report author that, at the age of 14, he left South Australia to live with his father in Queensland, where he remained for five years. He spoke positively of his upbringing to the author and said that he remains in contact with his mother and sibling. His sibling has offered him stable accommodation in Canberra on his release from custody. He could not identify any other prosocial peers residing in Canberra.
The offender appears to have described his childhood quite differently to Ms Barhon, describing his mother as “a drunk” who was emotionally, psychologically and physically abusive towards him. He said that he lived mostly in a home riddled with mice and without hot water and that he was regularly forced to stay out late while his mother “got drunk and smoked dope” with friends. He reported physical abuse from other family members but described his father in a positive light (although acknowledging to Ms Barhon that he too was abusive and stating that they were no longer in contact). He also gave a different account of the time he had spent living with his father.
Following completion of Year 10, the offender obtained qualifications in respect of earth moving equipment and traffic control. He also holds a heavy vehicle driver licence.
His last period of employment was as a truck driver. This employment ceased in 2018, and the offender has been reliant on social security payments since that time.
[Redacted]
As an adult, the offender has been convicted of a number of traffic offences. More concerningly, in March 2019 the offender was convicted of four counts of contravening a family violence order (FVO) and two counts of common assault. In relation to one of the FVO contraventions, the offender was sentenced to eight months’ imprisonment to be served by way of an intensive correction order (ICO). In relation to the other offences, the offender received a total effective sentence of five months and 14 days (which appears to have been treated as the amount of time he spent in custody awaiting sentence). Each of these offence concerned the complainant. One of the common assaults was committed against her and the other was committed against her son when he was three years old. The common assaults and two of the FVO contraventions occurred on the same day (1 June 2018). The other FVO contraventions took place on 14 June 2018 and 7 October 2018. Each FVO contravention was a serious family violence offence within the meaning of s 34B of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
In 2020, the offender was sentenced to 12 months’ imprisonment for offences committed in February and March of that year, including hindering police, resisting police, assaulting a police officer, trespass, attempting to deceive another to benefit oneself or a third person and taking property without consent. Prior to that sentence being imposed, the offender was also convicted of two counts of failing to comply with his bail agreement.
The offender reported two significant relationships. The first occurred while he was in South Australia and lasted 11 years. There were two children born of this relationship, with whom he maintains regular phone contact. The second is with the complainant. The pair are married, but currently estranged. The offender described their relationship as having been “on again, off again” for a period of approximately four years.
The offender has a history of alcohol and illicit substance abuse. To Ms Barhon he reported heavy daily cannabis use, commencing at 14 and continuing throughout most of his adult life, although this was not reported to the author of the pre-sentence report.
From the age of 18, he reports a problematic history of alcohol use. During his most recent period of supervision, he engaged with two rehabilitation providers to address his use. He considers that, after this, his alcohol consumption has been minimal.
In 2019, while in South Australia, he began to use illicit substances regularly. This included using 2g of methamphetamine weekly. He completed a harm minimisation program while in South Australia in an attempt to address his usage.
In 2021, on his return to the ACT, he discovered that the complainant had developed an addiction to heroin. He reports using heroin, as well as methamphetamines, in this context.
While on remand for this offending, the offender expressed an interest in engaging in a rehabilitation program. He has engaged in counselling with Relationships Australia and therapeutic intervention with the Specialist Communities Team at the Alexander Maconochie Centre. He has also completed various behavioural programs while in custody. Counsel for the offender tendered certificates of completion of a Healthy Relationships Program and a self-paced booklet titled ‘Working Together’.
In the lead up to the offending, the offender reported that he had been using significant quantities of heroin and methamphetamine. He reported to Ms Barhon that he had been “coming off” heroin on the day of the offence, that he impulsively consumed all the alcohol and illicit substances around the unit, before barricading the windows, “smashing things up” and messaging his wife threatening to burn down the unit, with the intention of this being a means of suicide.
To the pre-sentence report author, the offender reported feeling hopeless at the time of the offending and that he had barricaded himself inside the building with the intention to remain after starting the fire. It was a sense of self-preservation, rather than a planned cause of action, that caused him to escape the fire and call for assistance. I have noted above that I do not consider the offending a means of suicide.
The offender has expressed feelings of guilt in relation to the offence. However, in the opinion of Ms Barhon, “this appeared limited to his realisation of the legal consequences and impact of his behaviour on some of the affected neighbours”. I note that the offender observed that, because the fire resulted in some residents of the complex being relocated to better accommodation, the offending had some positive results. This demonstrates a lack of insight into the terrifying and dangerous nature of arson.
The offender reports that he was diagnosed with several mental health conditions while in custody in South Australia for which he received medication. These include borderline personality traits, post-traumatic stress disorder, antisocial behaviour disorder and attention seeking behaviour. Information from ACT Health confirms that he is currently prescribed medication to address his mental health, but the Directorate did not have records of any formal diagnoses.
[Redacted]
[Redacted]
The offender sought to invoke the principles in R v Verdins [2007] VSCA 102; 16 VR 29 (Verdins principles) (see also DPP (Cth) v De La Rosa [2010] 79 NSWLR 1, [177]). In summary, these principles are:
(a)where the mental illness contributes to the commission of an offence in a material way, the offender’s moral culpability may be reduced, and denunciation and punishment do not feature as significantly as sentencing purposes;
(b)the nature and severity of the impairment of the offender’s capacity may also show that general deterrence should be moderated or eliminated as a sentencing purpose; and
(c)a custodial sentence may weigh more heavily on a mentally ill person, but the danger to the community may require a sentence that will protect the community, increasing the need for general deterrence or specific deterrence.
Here, the Verdins principles pull in opposite directions.
It is well established that, in order for a Court to find that an offender’s moral culpability is lessened, there must be a real or causal connection between the mental impairment and the offending (see, eg, DPP v O’Neill [2015] VSCA 325; 47 VR 395, [74], Ibrahim v The Queen [2016] NSWCCA 6, [36]). This may arise where the offender’s condition impaired his ability to appreciate the wrongfulness of his conduct, obscured his intent to commit the offence, or impaired his ability to make calm and rational choices or to think clearly at the relevant time. As a factor in mitigation, the requisite causal connection must be established by the offender on the balance of probabilities (R v Olbrich [1999] HCA 54 199 CLR 270).
In this respect the offender relies on the report of Ms Barhon.
In her view, Mr Ezekiel’s presentation and history were consistent with a diagnosis of complex post-traumatic stress disorder. She opines that:
His reported history and account of events strongly suggest that at the time he committed the index offence, he was suffering from an acute deterioration in his already vulnerable mental state, as a result of his social and emotional circumstances. … PTSD is known to cause alterations in functioning of areas of the brain responsible for reactive aggression and impulse control, namely the prefrontal cortex and amygdala. This can result in heightened vulnerability to excessive responses when confronted with situations causing them heightened internal distress
The Crown accepted that the offender’s mental condition might mitigate his moral culpability for the offending. However, the extent to which it does so is not entirely clear. Ms Barhon was only able to speak to the offender once via a poor audio-visual connection using an iPad from his cell and once by telephone, and her ability to assess his condition was therefore somewhat limited. She appears not to have had access to some relevant documentation. In addition, the history that she took from the offender was different in significant respects to the history set out in the pre-sentence report and paints a much more serious picture of deprivation, abuse and behavioural problems during his childhood. I have significant reservations about the offender’s reliability. While the history set out in the pre-sentence report is not necessarily entirely accurate, I note that the author was able to consult the offender’s sibling and had access to some relevant documents and consider that it is more likely to be a reliable reflection of the offender’s early years.
These factors make it difficult to accept the diagnoses that were proposed (with an appropriate degree of caution) by Ms Barhon. However, noting that the offender was apparently diagnosed with several mental health conditions while in custody in South Australia and had been prescribed mental health medications at the time of the pre-sentence report, I accept that he suffers from mental health problems which are likely to have impaired to some extent his ability to make calm and rational choices and contributed to the extreme way in which he sought attention from the complainant and others.
However, the offender’s behaviour during the subject offence considered alongside his criminal antecedents demonstrates a compelling need to have regard to the protection of the community and specific deterrence. This is particularly so given the family violence context in which the offending occurred. As the preamble to the FV Act recognises, family violence is unacceptable in any form and is predominately committed by men against women and children. This was an offence that was committed in the home of the complainant, by an offender who has a history of committing serious family violence offences against this complainant, resulting in the destruction of her home.
The end result is that, in my view, the Verdins principles warrant only a slight reduction in the sentence to be imposed.
Counsel for the offender reported that she had been instructed that the offender was suffering particular hardship in custody because, at various points in time, he believed that people affected by the offence were also detainees. In the absence of any detail or evidence about these circumstances I do not give this matter any weight.
Other sentencing considerations
Guilty plea
The guilty plea was entered following a resolution reached at criminal case conferencing on 29 April 2022. The matter had been set down for trial to commence on 23 May 2022.
The Crown’s position was that the case against the offender was overwhelmingly strong, so that the Court should not make any significant reduction for the fact that the offender pleaded guilty. This description was resisted by counsel for the offender who submitted that, but for the admissions made by the offender at the scene, the Crown had little evidence in respect of the intention with which the fire is lit.
As the Court of Appeal observed in R v Newby [2022] ACTCA 20, at [31], to describe a case as “overwhelmingly strong” does not require that nothing other than a guilty verdict was possible:
In context it suggests that an acquittal is realistically unlikely. It calls for a practical assessment of the reality of the situation. But it cannot mean so high a hurdle that it can never be met.
But for the admissions at the scene, the Crown’s case was not overwhelmingly strong. The crime scene investigator could not determine the method of ignition or whether the fire was lit deliberately or accidentally. However, as this Court has observed in R v Garay (No 4) [2022] ACTSC 128 at [114], admissions form part of the evidence upon which an assessment of the Crown case is to be made and, in light of the admissions made on the night of the offending, I accept the Crown submission that the case against the offender was overwhelmingly strong. The inferences as to intention that could be drawn from the admissions mean that an acquittal was realistically unlikely.
The operation of s 35(4) in circumstances where a case was transformed from strong to overwhelmingly strong because of admissions by the offender, being to deny the offender any significant discount for a plea that would have otherwise resulted in a discount ordinarily between 15 and 20 per cent, is anomalous and the policy rationale is not clear: see, eg, R v Snowden [2022] ACTSC 186, [43]–[48]. I adopt the approach that Mossop J applied in that case; that is, to give a discount on account of the plea of guilty which is not a “significant reduction”, being five per cent, while also taking the admissions into account by way of instinctive synthesis in assessing the offender’s willingness to facilitate the course of justice.
Time in custody
The offender has been in custody solely referrable to his present offending since his arrest on 14 August 2021. I will backdate the sentence I impose to take into account this time in custody.
Consideration
In sentencing the offender, I am required to take into account the factors set out in s 33 of the Sentencing Act. Insofar as they are known and relevant, I have referred to those factors above.
I have also had regard to the purposes of sentencing set out in s 7 of the Sentencing Act. As the Court of Appeal has consistently stated, arson is an offence of great gravity and general deterrence and denunciation must, as a general proposition, weigh prominently in the sentencing exercise: see, eg, R v Booth [2004] ACTCA 21 at [26]. Although the offender’s mental health problems mean that the utility of the case as a vehicle for general deterrence and denunciation is moderated, I do not think the circumstances are such as to make these considerations irrelevant. As I noted at [54] above, specific deterrence and the protection of the community are other prominent purposes.
Rehabilitation is also a relevant consideration. The offender has, in recent times, engaged (or shown an intention to engage) with rehabilitation providers to address his substance abuse. I do not consider that he is in a position where rehabilitation would be unachievable. However, the offender’s criminal antecedents and history of relapsing into substance abuse following rehabilitation mean that I am guarded about his prospects.
I am not satisfied that a combination sentence pursuant to s 29 of the Sentencing Act that would see the offender imminently released into the community on a suspended sentence order would adequately achieve purposes of specific deterrence and protection of the community. A longer full-time custodial term is called for. Also, despite the commendable efforts of the offender’s legal team and supporters to work out arrangements for him to have appropriate support and supervision in the community, I am still left with some doubt that the community can be adequately protected in the event of his release.
A significant consideration in the offender’s release into the community is his ongoing rehabilitation. I accept that his prospects of rehabilitation are likely to be better in the community than in custody, provided that an appropriate regime of treatment and supervision can be arranged. Because his release is not imminent, I consider that this is a matter best assessed by the Sentence Administration Board. I will fix a nonparole period at the lower end of the usual range.
I have considered whether this is an appropriate case for an even shorter nonparole period, as an incentive for good behaviour and in recognition of the fact that the community’s interests may be served by the offender having access to rehabilitation programs sooner rather than later. However, the reasoning of the Court of Appeal in R v Tomo’ua [2017] ACTCA 9; 12 ACTLR 103 at [100]–[105] emphasises that an “unusually low” nonparole period (ie, less than 50 per cent of the total sentence) requires justification by reference to achieving an “appropriate relationship” to the total sentence. In considering that “appropriate relationship”, emphasis on prospects of rehabilitation cannot be allowed to override other sentencing purposes in s 7 of the Sentencing Act. I have concluded that the nonparole period that properly reflects the minimum period of imprisonment that justice requires to be served is one at the lower end of the usual range, rather than below that range.
Sentence
On the charge of arson (CC 2021/8491) the offender is convicted and sentenced to imprisonment for three years and four months’ imprisonment (discounted from three years and six months’ imprisonment in recognition of the guilty plea), from 14 August 2021 to 13 December 2024.
I fix a nonparole period of one year and eight months’ imprisonment, from 14 August 2021 to 13 April 2023.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Kennett Associate: Date: |
0
11
3