R v Fitzgerald; R v Noveski
[2018] ACTSC 168
•6 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fitzgerald; R v Noveski |
Citation: | [2018] ACTSC 168 |
Hearing Dates: | 18 April 2018; 6 June 2018 |
DecisionDate: | 6 June 2018 |
Before: | Murrell CJ |
Decision: | See [67]–[68]. Each offender sentenced to 12 months’ imprisonment to be served by way of Intensive Correction Order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – party with co-offenders – rehabilitation – general deterrence |
Legislation Cited: | Criminal Code 2002 (ACT) ss 45A, 404 |
Parties: | The Queen (Crown) John Fitzgerald (Offender) Boyan Noveski (Offender) |
Representation: | Counsel Mr J Walker (Crown) Mr J Moffett (Offender Fitzgerald) Mr S Howell (Offender Noveski) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Offender Fitzgerald) Aulich Criminal Law (Offender Noveski) | |
File Numbers: | SCC 17 of 2018; SCC 16 of 2018 |
MURRELL CJ:
Offence
Each offender is to be sentenced for the offence that on 7 March 2017, he was knowingly concerned in reckless damage to the BUPA Aranda building by explosives contrary to ss 404(1) and 45A of the Criminal Code 2002 (ACT).
The maximum penalty for an offence against s 404 is 15 years’ imprisonment and/or a fine of $225,000.00.
Initially, each offender was charged with aggravated burglary and arson. Soon after the offenders were charged, the offenders’ lawyers indicated that each offender was willing to plead to the offence of being knowingly concerned in arson. The prosecution accepted the pleas.
The pleas of guilty were entered very early. They have significant utilitarian value. Each offender should receive a sentence discount of 25 per cent.
Facts
During November 2015, BUPA Aranda, an aged care facility, was progressively vacated and operations were moved to a more modern facility. A security firm was engaged to monitor the security of the abandoned premises.
Sometime during 2015, co-offenders Nguyen, Webber and Swift commenced a group conversation on Facebook Messenger entitled “frashin bin it”. Later, others joined the group chat, including the offenders Fitzgerald and Noveski and the primary co-offender who was a young person at the time of the offending. Fitzgerald used the profile name “-2 cylinders” and Noveski used the profile name “TRT”.
At about 11:30 am on 7 March 2017, the members of the group conversation discussed detonating an explosive device that night for the purpose of setting alight the BUPA facility.
Between 8.00 pm and 9.00 pm that night, Noveski collected co-offenders Swift and Ghous.
At about 9.00 pm, Fitzgerald drove to the Coles Express Service Station in Gungahlin with co-offender Webb, where Noveski, Nguyen, Bobbine, Swift and Ghous were already assembled.
The primary co-offender and Nguyen entered the rear seat of a vehicle and began to dismantle sparklers and place the crushed contents into containers to make two “sparkler bombs”.
Fitzgerald drove the primary co-offender, and Nguyen and others to a primary school car park near the abandoned BUPA facility.
Noveski drove the co-offenders Swift and Ghous to the car park.
The group entered the facility through a door at the rear of the premises that had a broken glass panel. They made their way up to a large room on the first floor. Others left the large room while the primary co-offender and Nguyen remained in the room, attending to the explosives.
The primary co-offender and Nguyen each lit a “sparkler bomb” that he had been carrying. The first sparkler bomb was lit in a large room and the second sparkler bomb was ignited in a second room. Each ignition was associated with a loud explosion and a flash of light. The primary co-offender and Nguyen then ran from the second room.
Fitzgerald drove the primary co-offender and Nguyen away from the carpark, passing the BUPA facility. By that stage the building was well alight. The group returned to the Coles Express Service Station in Gungahlin, where Fitzgerald left the primary co-offender and Nguyen. They said that they wished to return and view the fire.
Noveski left the scene with Swift and Ghous. As they were driving away, Ghous used his mobile telephone to film the fire. They drove to McDonald’s at Belconnen.
At 10:41 pm on Tuesday 7 March 2017, police received a request from ACT Fire and Rescue Services to attend the abandoned BUPA facility, which was well alight.
The fire rendered the premises structurally unsafe; the ceiling and walls partially collapsed. Police were advised that the premises posed a potential asbestos contamination risk due to the age of the construction.
On the afternoon of 8 March 2017, police received a tip off about the Facebook group conversation.
In August 2017, police spoke to Fitzgerald regarding an unrelated matter and he informed them that he had been present when the primary co-offender and co-offender Nguyen had started the fire at BUPA.
During the record of interview, Fitzgerald told police that he was not aware that the primary co-offender and Nguyen intended to burn down the BUPA facility, but statements by Fitzgerald during the group conversation on the morning of 7 March 2017 indicate that he was enthusiastic about burning down the BUPA facility.
Similarly, during his record of interview, Noveski at first stated that he was unaware that the primary co-offender and Nguyen were planning to ignite explosives inside the building. However, during the Facebook conversation on the morning of 7 March, Noveski had expressed a willingness to be involved. When that conversation was drawn to his attention by police, Noveski acknowledged that he had been aware of the intentions of the primary co-offender and Nguyen.
BUPA has stated that the costs directly attributable to the fire were $187,195.50. The site itself cannot be occupied until identified asbestos risks have been remedied.
Objective seriousness
The offence was a relatively serious one of its type.
As far as all participants were concerned, it appears that their motive for the offence was thrill-seeking. Like many adolescents they were attracted to risk-taking behaviour. This behaviour involved extreme risk. I note that the charge to which each of these offenders has pleaded guilty refers to recklessness in relation to the causing of damage rather than the intentional causation of damage. While there is no universal rule, generally offences involving recklessness versus intention may be of lower objective seriousness. As far as all participants were concerned, it would appear that the offence was not committed for personal gain as is the case with many arson offences where damage is caused for the purpose of enabling an insurance claim to be made.
There is no evidence that the either offender played a significant role in planning the offence, but earlier on the day of the offence they were certainly aware that an offence of the general type was to occur and they encouraged its commission.
The offenders pleaded guilty on the basis that they were knowingly concerned in the offence. As is apparent from the facts, each provided assistance by driving co‑offenders to and from the scene and provided encouragement to the principal offenders.
While the same maximum penalty applies to offenders who are knowingly concerned as applies to those who actually commit an offence, in this case, as in many such cases, the culpability of a person who is knowingly concerned is less. Of course, that is not a universal rule. In every case it depends upon the role played by the individual and all the circumstances. In this case, the roles played by the offenders were of significantly less objective seriousness than those of the principal offenders, Nguyen and the primary co-offender.
Like the other offenders involved in the incident, it is possible or even likely that these offenders had not reflected on the consequences of the conduct nor envisaged the extent to which the building would be damaged and the cost of remediation.
There was no endangering of life, except of course, the lives of the other participants. ACT Fire and Rescue were required to attend the scene, no doubt at considerable expense to the community and with the associated possibility of suffering injury.
The above considerations explain why the sentencing purpose of general deterrence is always prominent in relation to arson offences.
Subjective circumstances – Fitzgerald
At the time of the offence, the offender was 18 years and five months of age.
He has no criminal history.
When interviewed on 11 September 2017, Fitzgerald made extensive admissions, thereby assisting the justice process. That consideration will be taken into account in a general way.
The offender is the older of two children. He enjoyed a stable and supportive upbringing. He suffered bullying at school, although his school experience improved as he progressed through secondary school and by the end of school he was very engaged in a variety of school activities.
The offender completed Year 12 and is now undertaking the second year of an electrical apprenticeship. He is very interested in pursuing a career in that area. In addition, he undertakes casual work in the hospitality industry.
In February 2018, the offender’s self-reported alcohol use over the preceding 12 months was assessed as hazardous. It has now reduced to a reasonable level.
The offender acknowledged that, until mid-2017, his principal associates were involved in criminal activities. However, he informed the author of the pre-sentence report that he had had no contact with most of his co-accused since mid-2017 and had reconnected with former school and work friends who live a pro-social lifestyle.
The offender is remorseful and has acknowledged the impact of the offence on BUPA and the stress and disruption that his offending behaviour has caused to his family and his employer. He appreciates that his conduct was immature and foolish. He indicated that he was willing to engage in restorative justice. However, at one stage, the offender did minimise his culpability for the offence itself.
The offender is described by referees as a motivated young man who is generally of excellent character and who possesses sound values. The referees say that the behaviour that is the subject of this episode as being out of character. They say the incident has taught the offender a valuable lesson.
The author of the pre-sentence report assessed the offender as at medium/low risk of general reoffending. The author of the pre-sentence report stated that the risk would be reduced if the offender was assisted to address issues of substance abuse, impulse control and attitudes towards offending.
The offence was a wake‑up call to the offender and has caused him to change his associates and refocus his life in a much more mature way. That attitude should continue to support his rehabilitation.
Subjective circumstances – Noveski
At the time of the offence, Noveski was 18 years and five months of age.
Like Fitzgerald, he has no criminal history.
On 27 November 2017, Noveski was interviewed by police and, like Fitzgerald, made extensive admissions. Later, through his lawyers, he offered to provide any further assistance that was needed.
Noveski is the older of two children. He had a supportive upbringing. He too experienced bullying at school, which had a negative impact on his self-esteem and mood.
He completed Year 12, although at times he struggled with the lack of motivation. After travelling for a year, he commenced a course at Canberra Institute of Technology which he hopes will fit him to work in the disability and aged care sector. For some years, he has undertaken casual cleaning work. His employer describes him as an excellent worker. As he is generally very responsible, the employer was shocked to learn of the offence and considered it to be an aberration.
The offender continues to enjoy strong family support. His parents describe him as a kind and loving son. They say that he was somewhat directionless at the time of the offence but is now gaining maturity. They say that the incident has taught him a significant lesson and they are confident that the behaviour will not be repeated.
The offender has been assessed as suffering from recurrent mild major depressive disorder. The first episode of the disorder occurred in early 2016. He requires psychological treatment and needs to develop coping strategies to deal with future stressors.
The offender has expressed remorse, shame and regret for his behaviour and demonstrates good insight into the factors contributing to the behaviour, including social group dynamics, reliance on the evaluations of others and naïveté. He has minimal ongoing contact with co-offenders.
Through his lawyers, the offender has expressed remorse to BUPA and volunteered his services.
Co-offenders
Both in relation to the objective seriousness of the particular offences that were committed by these offenders and in relation to their subjective circumstances, there is a high level of similarity. The roles played by each and the general involvement of each was very similar. Further, their subjective circumstances are remarkably similar. In sentencing the offenders, I see no reason to distinguish between the sentences that I impose.
I must also have regard to considerations of parity with the other co-offenders.
I sentenced the co-offender Nguyen and the primary co-offender in May 2018.
The co-offender Nguyen, was a young man (19 years old) at the date of the offence. When interviewed by police, he made full and detailed admissions. When he came before the Court on the arson offence, he also faced other charges. His criminal history was brief and of little significance. He was of generally good character. He was assessed as at low risk of general re-offending.
The primary co-offender was in a different situation. Although he was young at the time of the offence of arson, he had had numerous and serious prior interactions with the criminal justice system and was on conditional liberty. He had engaged in more than one thrill-seeking offence. His risk of recidivism was assessed as medium. In terms of culpability for the offence itself, I found little to distinguish the roles played by the co-offender Nguyen and the primary co-offender. However, the subjective circumstances of the primary co-offender were significantly less favourable than those of Nguyen.
Comparing the situation of Nguyen with that of these offenders and, having regard to his role in the offence, Nguyen is significantly more culpable than these offenders. He was a principle offender; although the level of planning in which he engaged was not high, it was much greater than that of these offenders.
The subjective circumstances of Nguyen are somewhat comparable to those of these offenders but, on the whole, less favourable.
Sentencing purpose
In the proceedings against Nguyen, I observed that, ordinarily, serious arson offences must be met with a sentence of full-time imprisonment.
The sentence imposed on each offender for this offence must have particular regard to the sentencing purpose of general deterrence. That purpose is almost always important in the case of arson offences as they are relatively easy to commit, often difficult to prosecute and they can cause extensive property damage as occurred in this case and endanger the lives of building occupants or emergency services and rescuers.
In the case of Nguyen, I had regard to the offender’s early and continuing co-operation with the police, his youth and his prospects of rehabilitation. For that reason I imposed a sentence of one year and 11 months’ imprisonment (discounted by 25 per cent for a plea of guilty from a starting point of two years and six months’ imprisonment), to be served by way of Intensive Correction Order (ICO).
Similarly, in the case of these offenders, their youth, lack of criminal history and good prospects for the future are very important matters that inform the sentencing purpose of rehabilitation. Regrettably, the offence itself was in the general category of offences that is often committed by impulsive adolescent males.
The offenders have matured significantly since they committed this offence. Each seems to have gained significant insight and to have very good prospects for the future.
18 April 2018
I indicated that, while a sentence of imprisonment must be imposed as it is the only penalty that could reflect the purposes of adequate punishment and general deterrence, there is scope for the sentence being served otherwise than by way of full‑time imprisonment.
As to the appropriate length of the sentence and considering the roles of the offenders and also parity with the co‑offenders – particularly Nguyen – I consider that the appropriate starting point is 16 months’ imprisonment. In each case I will discount the sentence by 25 per cent for the early pleas to arrive at a sentence of 12 months’ imprisonment.
Having considered the pre‑sentence reports, I refer each of the offenders for assessment for suitability for an ICO.
6 June 2018
For the reasons given on 18 April 2018 and taking into account the ICO assessment report, the offender Fitzgerald is sentenced to 12 months’ imprisonment and the sentence is to be served by intensive correction in the community.
For the reasons given on 18 April 2018 and taking into account the ICO assessment report, the offender Noveski is sentenced to 12 months’ imprisonment and the sentence is to be served by intensive correction in the community. The ICO is to include additional conditions that the offender accepts a referral by Community Corrections to a mental health care treatment provider and that he participates in mental health care treatment and any substance abuse treatment program that is recommended by Community Corrections.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 7 June 2018 |
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