R v Halls

[2008] NSWCCA 251

New South Wales
Court of Criminal Appeal

CITATION:	R v Mark Anthony HALLS [2008] NSWCCA 251 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 October 2008
JUDGMENT DATE:	3 November 2008
JUDGMENT OF:	Hodgson JA at 1; Kirby J at 2; Hislop J at 57
DECISION:	Crown appeal dismissed.
CATCHWORDS:	Criminal Practice & Procedure - Crown appeal - offence malicious damage to a house by fire - intellectual disability of offender - whether the damage "substantial" s 21A(2)(g) aggravating offence - whether criminal record a matter of aggravation - discount for late plea in potentially lengthy trial (20%) - error but discretion not to intervene.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Youkhana [2004] NSWCCA 412 R v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Chisari [2006] NSWCCA 19 Veen v The Queen (No 2) (1988) 164 CLR 465 R v Hemsley [2004] NSWCCA 228 R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 House v The King (1936) 55 CLR 499 R v Hayes [2001] NSWCCA 358 R v Rushby [1977] 1 NSWLR 594 R v Nolan (unreported, CCA, 03.02.94) R v Priest [2000] NSWCCA 27 R v Allpass (1993) 72 A Crim R 561 R v Wall [2002] NSWCCA 42 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
PARTIES:	Regina Mark Anthony HALLS
FILE NUMBER(S):	CCA 2007/8776
COUNSEL:	G Rowling (Crown/Appl) J Stratton SC (Resp)
SOLICITORS:	S Kavanagh (DPP/Appl) S O'Connor (LAC/Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/41/0064
LOWER COURT JUDICIAL OFFICER:	Flannery DCJ
LOWER COURT DATE OF DECISION:	18/7/08

2007/8776

HODGSON JA
KIRBY J
HISLOP J

Monday 3 November 2008

REGINA v Mark Anthony HALLS

Judgment

1 HODGSON JA: I agree with Kirby J.

2 KIRBY J: This is an appeal against sentence by the Crown. Mark Anthony Halls (the respondent) pleaded guilty to one count under s 195(1)(b) of the Crimes Act 1900, the indictment being expressed in these terms:

“On 16 December 2006 at Towradgi, in the state of New South Wales, maliciously damaged property, namely 15A and 15B Sturdee Street, the property of New South Wales Department of Housing, by means of fire.”

3 The maximum penalty for that offence is 10 years imprisonment. Mr Halls was arrested on the day of the fire and remained in custody thereafter, awaiting trial. He pleaded guilty on 15 April 2008. He was sentenced by Flannery DCJ on 18 July 2008. Her Honour imposed a sentence of 4 years imprisonment (from 16 December 2006, expiring on 15 December 2010), fixing a non parole period of 2 years (expiring on 15 December 2008). The Crown asserted that the sentence was manifestly inadequate.

The incident.

4 The matter proceeded on sentence by way of an agreed statement of facts. Number 15 Sturdee Street, Towradgi, was a weatherboard cottage owned by the Department of Housing and converted into two flats. Mr Halls occupied one flat and Mr James Cunningham the other.

5 Mr Halls spent the evening of 16 December 2006 at the Corrimal Leagues Club. According to the statement of facts, he “consumed an amount of alcohol”. He left the club by taxi shortly before midnight. His neighbour, Mr Cunningham, heard him come home. Mr Cunningham then went back to sleep.

6 At about 1.30 am, Mr Halls woke Mr Cunningham by banging on his bedroom window and saying:

“They’re trying to do it again Jim, my house is on fire.”

7 Mr Cunningham immediately got up. He went to the back of the house and saw a glow in the back room. Meanwhile, Mr Halls rang 000 at 1.39 am. The call was recorded and included these words:

“My mattress caught on fire and the thing, I didn’t know I had a cigarette. … I went to take my shoes off I must’ve went to sleep … ”

8 Mr Halls repeated that explanation to a neighbour who came to watch the fire. However, he gave a different explanation to that neighbour’s wife, which he later repeated to the police. He said that he came inside from the rear yard, striking his head. He lost consciousness for a time, perhaps 15 minutes. He had been smoking and surmised that the cigarette must have caused the fire.

9 There were difficulties with both explanations, quite apart from their inconsistency. The crime scene investigation established that the fire had started in the room at the back of the house by means unknown. That finding was consistent with the observations of Mr Cunningham. The mattress upon which Mr Halls slept, on the other hand, was at the front of the house. The alternative explanation, that he struck his head and lost consciousness, was inherently unlikely. When he gave that explanation to a neighbour, she looked at his head. She could see no injury. When he was examined by the ambulance officers soon after the fire began, they determined that he had not suffered any smoke inhalation.

10 The fire ultimately engulfed Mr Halls flat, which was destroyed. The flat of his neighbour, Mr Cunningham, was severely damaged by smoke. Mr Cunningham was obliged to leave the premises that night. He was unable to salvage his personal belongings because asbestos within the building made it unsafe to re-enter. The building was eventually demolished. The Department of Housing estimated the value of the house to be $163,000.

11 The matter was called on for trial before Flannery DCJ on 14 April 2008. Her Honour was asked to determine a preliminary issue. The Crown sought to lead evidence of a tendency to light fires, based upon Mr Halls’ criminal history. Her Honour ruled that such evidence was admissible. Mr Halls pleaded guilty the following day.

12 When arrested, Mr Halls, on advice, declined to be interviewed by the police. By his plea of guilty, he may be taken to have acknowledged that he had deliberately lit the fire. By inference, he further acknowledged that his various explanations were false. However, since he had not been interviewed and gave no evidence on sentence, there was no real evidence before her Honour as to exactly what he did and why. In these circumstances, her Honour simply said this: (ROS 2)

“The offence is objectively serious although its commission needs to be viewed in the light of the offender’s serious intellectual disability. It is also relevant that no accelerant was used, the offence was unplanned and that it was not committed for financial gain.”

The subjective case.

13 Mr Halls was born on 24 November 1962. At the time he was sentenced he was therefore 45 years old. He had no knowledge of his biological father. His mother had remarried when he was very young. She and his stepfather thereafter had a further five children. His stepfather was abusive. Her Honour included the following description of their relationship, taken from the history provided to a neuropsychologist: (ROS 2)

“That man would frequently hit him, pull his hair, push his head against the wall and place him in a wooden chest and roll him around. He described being knocked out by his stepfather on several occasions.”

14 Mr Halls attended a succession of different primary schools. He was identified as a slow learner and placed in a special class. He was expelled in year seven. At the time he was expelled he could neither read nor write. That remains the position. Shortly after he spent time in a boys’ home.

15 In 1977, when Mr Halls was 14 years old, he came before the Children’s Court charged with stealing and malicious injury. He was placed on probation for two years. Four years later, at the age of 18, he was convicted of six offences. Four were sexual offences and the remaining two involved malicious damage by fire to a building and malicious damage by fire to a motor vehicle. The total sentence imposed was 8 years imprisonment with a non parole period of 4 years and 3 months. In respect of the malicious damage to a building, he was sentenced to a concurrent fixed term of 3 years imprisonment. The sentence in respect of the motor vehicle was a fixed term of 1 year, which was also concurrent.

16 Mr Halls was released to parole, but breached that parole by again setting fire to a public building. He was sentenced in respect of that offence on 11 April 1985. He was ordered to serve the balance of his original term (2 years and 7 months) as well as an additional 3 years imprisonment for the malicious damage offence.

17 After Mr Halls was eventually released, he was charged with a number of offences (assault and false representation) and required to serve short periods of imprisonment. In 1992, he was sentenced to 4 years imprisonment with a non parole period of 3 years for damage to property with intent to endanger life. Again, after his release, he committed a number of offences involving dishonesty. Short periods of imprisonment were imposed. On 7 May 1999, he was sentenced on three counts of malicious damage to property. Although the record is not entirely clear, I assume the damage in each case was occasioned by fire. Mr Halls was sentenced to a term of imprisonment of 2 years and 6 months, with an additional term of 3 years and 6 months. His non parole period expired on 6 November 2001.

18 However, Mr Halls was not released at the expiration of the non parole period. He was eventually given parole on 27 January 2005, that is, about 3 months before the expiration of his sentence (6.5.05).

19 The offence presently under appeal occurred almost two years later (16.12.06). Before being sentenced, Mr Halls was assessed by Dr Pulman, a Clinical and Forensic Neuropsychologist. The level of his intellectual functioning was found to be in the first percentile of the population. His full scale IQ was 62, which was characterised as a mild intellectual disability. Mr Halls has never worked. When not in gaol, he has been in receipt of a disability pension.

20 After his arrest, and whilst awaiting trial, the prison authorities recognised Mr Halls’ intellectual disability. In March 2007, the Department arranged for his transfer to the Long Bay Disability Unit. Arrangements were made for him to undertake a number of courses. Amongst other things, the courses began to address his illiteracy. Ms Nolan of the Criminal Justice Support Network (Intellectual Disability Rights Service) prepared a report of 28 May 2008, which was placed before her Honour. The report included the following:

“Mark was transferred from Parklea Correctional Facility to Long Bay Disability Unit March 2007. Mark has progressed in many areas as a result of being placed at this unit, he has participated in short educational courses and various employment positions, developing new skills along with improving interaction with others.
It appears in a structured environment with additional support Mark copes well, his anxiety levels are reduced along with a more positive attitude about his future.
Mark meets the Department of Aging Disability and Home Care (DADHC) criteria making him eligible for the Criminal Justice Program (CJP). This program offers post release options such as supported accommodation and access to services that Mark may require. The program is aimed at reducing re-offending behaviours and assisting people to integrate successfully back into society.”

21 Mr Halls was thereafter assessed and accepted by the Criminal Justice Programme. Her Honour, in her remarks, summarised the evidence of the case worker from the Department in these words: (ROS 3)

“The effect of this is that the criminal justice program will fund services, support and accommodation for Mr Halls over the ‘ensuring years’ including casework and clinical support as well as requisite transitional requirements. Prior to the expiration of his non-parole period the criminal justice program staff will undertake an assessment to determine the extent of his needs. These needs are then met with criminal justice project vacancies. Based on the information available to Ms Smith the offender is likely to require 24 hour supervised supported accommodation on his release. In her view he will also require case management and this would occur, according to Ms Smith, in conjunction with the probation and parole service if he was released with supervision. Further assessment in the community post release would identify potential programs to assist with social skill development and possible referral to appropriate supported employment programs.”

22 Against this background, her Honour was invited to find, as a mitigating factor, that Mr Halls was unlikely to reoffend and had good prospects of rehabilitation. Her Honour said this: (ROS 5)

“… The effect of the submission was that because the offender has developed new skills during his time in the Long Bay disability unit and because it appears clear that he will be supervised every hour of the day upon his release by the people from the criminal justice project and will be encouraged to continue developing skills that will assist him with his social skill development, I would be in a position to find that he has some prospect of rehabilitation and is unlikely to re-offend.
I accept that the material before me does allow more optimism than Hosking J would have had when he sentenced Mr Halls in 1999 and whilst it is positive that there are programs available that will provide the support and assistance he clearly needs, it is difficult to be more than a little confident that the offender has good prospects of rehabilitation and is unlikely to re-offend.”

The Notice of Appeal.

23 The Notice of Appeal simply stated that the sentence was manifestly inadequate. There was no elaboration. The written and oral submissions of the Crown, however, identified four matters which were said to be errors by her Honour which, collectively, helped explain why the sentence was too low. The grounds ultimately relied upon by the Crown can be summarised as follows:

· First, that her Honour was error in not finding that the damage occasioned by Mr Halls’ crime was “substantial” and, hence, a matter of aggravation (s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999) (“the Act”).

· Secondly, that her Honour was in error in not regarding Mr Halls’ criminal record as a matter of aggravation (s 21A(2)(d) of the Act).

· Thirdly, that the danger presented by Mr Halls required a greater recognition of the need for special deterrence.

· Fourthly, that having regard to the late plea, her Honour was in error in allowing a discount of 20 per cent.

· Fifthly, that the sentence was otherwise manifestly inadequate.

24 I will deal with each issue in term.

Ground 1: Substantial damage.

25 In her remarks on sentence, Flannery DCJ said this: (ROS 4)

“The Crown also submits that the damage caused by the commission of the offence is substantial. She relies upon the Department of housing estimate of the value of the building, which was $163,000, in submitting that the damage was substantial. Ms O’Reilly, who appeared for the offender, did not agree that this factor has been established as an aggravating factor. In her submission the damage here is assumed as part of the offence and accordingly it should not be taken into account as an aggravating factor. It seems to me that although there can be no doubt that the damage was significant, it does not satisfy the description of substantial and for that reason I do not propose to take it into account.”

26 The Crown argued that her Honour was in error. The duplex valued at $163,000 was so damaged that it had to be demolished. It was argued that, in circumstances where the damage may vary (as it may in the case of malicious damage by fire), the extent of the damage is relevant, whether as a matter of aggravation (s 21A(2)(g)) or as a matter of mitigation (s 21A(3)(a)). The offence may be prosecuted summarily where the damage is less than $5,000. Here, according to the Crown, damage which amounts to the destruction of a house valued at $163,000 is plainly substantial.

27 Counsel for Mr Halls responded by pointing out that the vast bulk of charges under this section involved damage either to a home or a motor vehicle. In the context of a charge concerning damage to a home, it was open, according to the respondent, for her Honour to characterise the damage as “significant”, but not “substantial”.

28 Dealing with these submissions, the difficulty with s 21A(2)(g) is that some damage to the property by fire is an element of the offence. The concluding words of s 21A(2) (after the list of matters of aggravation) are as follows:

“The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”

29 At what point, or within what range, can the damage be regarded as “substantial” and therefore a matter of aggravation, or, “not substantial”, and a matter of mitigation?

30 In R v Youkhana [2004] NSWCCA 412, the sentencing Judge, in the context of an armed robbery, found as a matter of aggravation that there had clearly been “some emotional harm to the three victims” at [23]. One victim said that he feared for his life when the robber pointed the weapon towards him. On appeal, the Court of Criminal Appeal determined, however, that the sentencing Judge was in error. Hidden J (with whom other members of the Court agreed) said this:

“[26] However, before a judge could find ‘substantial emotional harm’ within the meaning of s 21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here.”

31 Commenting upon this decision, Howie J (Grove and Latham JJ agreeing) in R v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32, drew attention to the Chief Justice’s words in the guideline judgment concerning armed robbery. In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, the Chief Justice said this:

“[95] Plainly the actual impact in each particular case will vary and, appropriately, cause variations in the sentence imposed. This is not a manifestation of inconsistency. Rather, it represents the consistent application of a principle which varies in its import according to the circumstances.”

32 Having set out that and other passages from R v Henry, Howie J added the following comments:

“[19] Because the court assumes, without evidence, that the victim of a robbery would be affected both physically and psychologically from the commission of the offence and because that consequence of the offence is taken into account generally in determining that the offence is to be considered as a serious one requiring condign punishment, it would be unfair for the court to take into account as an additional aggravating factor under s 21A(2)(g) the fact that the victim of an armed robbery suffered the type of harm that is assumed to be the case for any victim of that offence: there would be in effect a double counting of an aggravating feature of the offence. Therefore, in order to take into account the effect upon the victim of the offence as an aggravating feature over and above that which applies to armed robbery offences in general, something more is required than that which the court has assumed to be the case. ”
(emphasis added)

33 His Honour added:

“[20] Nothing in Youkhana should be taken to suggest that the normal or assumed effects of an armed robbery upon a victim are not substantial. The case is simply authority for the proposition that, in order to avoid double counting of aggravating factors, the court cannot take into account as an aggravating feature of a particular crime the effects upon a victim that would be expected to result from the commission of that type of offence. There may be cases at the margin where some judgment might have to be made about whether the severity of the effect of a particular offence on a particular victim is such that the offence should be considered to be aggravated. But the present case is not one of them. In my opinion from the passages of the victim impact statements set out above it is clear that it was open for the Judge to find that the offences were each aggravated by the effect that they had upon the relevant victim.”

34 Here, in sentencing the respondent, the Judge was required to have regard to the circumstances in which the offence was committed. A relevant circumstance was the property damaged was a house valued at $163,000. Nothing was put before her Honour by way of statistics or reference to decided cases to define the damage which is ordinarily comprehended by this offence. That, perhaps, was not unsurprising. Statistical data may not be readily available. Individual cases provide an uncertain platform for general inferences. Ultimately, it was a matter of impression for the sentencing Judge. Simpson J in R v Chisari [2006] NSWCCA 19, in such circumstances, sounded a note of caution, drawing attention to the concluding words of s 21A(2), set out above. Her Honour said this:

“[22] It is, obviously, quite correct that the offence was aggravated by the identify of the victim, and by the extent of injury. These were both taken into account by the sentencing judge. Treating the extent of the injury as an aggravating feature requires some caution. An element of an offence against s 33 is the infliction of injury amounting to grievous bodily harm. To take that into account as an aggravating feature would contravene the direction contained in the final words of s 21A(2). Where, however, as here, the injury significantly exceeds the minimum necessary to qualify as grievous bodily harm, it is relevant to take the extent of the injury into account. This was done and, in my opinion, no error has been shown in this respect.”

35 Returning to the sentencing remarks, unquestionably her Honour’s characterisation of the damage as “significant but not substantial” was charitable. But was it error? The offence, it will be noticed, was not malicious damage to a dwelling. It was malicious damage to property. The property was a house, the home of two individuals, one being the offender. It was said to be valued at $163,000 and had to be demolished as a result of the fire. In my view, this was not a case on the margin. The damage was substantial. That was a matter of aggravation. There was error.

Grounds 2 & 3: The respondent’s criminal record as a matter of aggravation and the issue of danger.

36 It is convenient to deal with the second and third grounds together. Section 21A(2)(d) is in these terms:

“21A(2) Aggravating factors . The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),”

37 This was obviously not a matter of personal violence. Nonetheless, the respondent had spent much of his adult life in gaol for offences similar to the offence charged, as her Honour recognised. The Crown submitted that Mr Halls had demonstrated a dangerous propensity requiring a sentence that would deter him in the future (Veen v The Queen(No. 2) (1988) 164 CLR 465 at 477/8). Her Honour, in her remarks, stated the principle in these terms: (ROS 4)

“In relation to the previous convictions of the offender I would only take them into account as an aggravating factor if I found that by the commission of this offence the offender has manifested in his commission of it a continuing attitude of disobedience of the law. In that case retribution, deterrence and the protection of society may all indicate that a more severe sentence is warranted. If I was not satisfied that that was so, the only relevance of the offender’s previous convictions is that they may deprive him of leniency. The offender’s serious intellectual disability complicates my assessment of the use I may make of his criminal convictions and I propose to consider this when I consider the relevance of his intellectual disability generally.”

38 Her Honour then went on to consider the relevance of Mr Halls’ intellectual disability to his offending behaviour. She did so by reference to the issues identified by Sperling J in R v Hemsley [2004] NSWCCA 228, where his Honour said this:

“[33] Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
[36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence: Israil at [24].”

39 Dealing with these issues, her Honour made the following findings: (ROS 6)

“In light of the evidence before me I am satisfied that the offender’s intellectual disability contributed in a material way to the commission of the offence and so I find his moral culpability for it is reduced and that there is not the same call for denunciation. I also find that the offender’s intellectual disability renders him an inappropriate vehicle for general deterrence, with the result that general deterrence has a much lesser part to play in this sentencing exercise than it ordinarily would. I do not find that the offender’s intellectual disability means his custody will weigh more heavily on him than it otherwise would, as at least since March of 2007 he ha been in a unit specifically for people with his sort of disability. Less clear is the level of danger which the offender presents to the community because of his intellectual disability.”

40 Her Honour continued, making the following comment on the issue of danger, and the need for personal deterrence: (ROS 6/7)

“I am satisfied beyond reasonable doubt that the offender’s previous malicious damage by fire convictions do suggest that the community needs to be protected from him but as the evidence before me shows that upon his release he will most likely be supervised by an officer of the criminal justice programme twenty-four hours a day for the ensuing years, I do not consider that a more severe sentence is warranted to reflect the need for the community to be protected from him.”

41 This was not a finding of a continuing attitude of disobedience to the law, but rather a finding of objective danger (issue four in Sperling J’s judgment), where the community needed to be protected. That finding was open, given that little was known concerning the circumstances in which Mr Halls lit the fire and his intention, and also given his limited intellectual capacity. In the result, her Honour determined that the danger to the community had at last been addressed by the arrangements proposed by the Criminal Justice Support Programme, which would operate upon his release.

42 I do not find error in respect of the second and third grounds.

Ground 4: The discount for the plea of guilty.

43 Her Honour made the following remarks on the discount to be given for the plea of guilty: (ROS 7)

“Ms O’Reilly submitted that I would find as a mitigating factor that the offender pleaded guilty. He did so on the second day of the trial before a jury was empanelled. The trial had an estimate of three to ten weeks. In those circumstance the pleas were of significant utilitarian value and I propose to reduce the sentence I would otherwise have imposed by twenty per cent to reflect that utilitarian value. I also take into account that a large number of witnesses did not have to attend.”

44 The circumstances in which the plea was entered have already been described. The trial had begun, although the jury had not yet been empanelled. Her Honour had dealt with a preliminary evidentiary issue and had ruled adversely to the respondent. It was in these circumstances that the plea was entered on the second day. The Crown submitted that it was, on any view, a late plea. The appropriate discount was in the range of 10 to 25 per cent. According to the Crown, the discount should have been “towards the bottom of the range”. A discount of 20 per cent, in the Crown’s submission, was unduly lenient and amounted to error.

45 Counsel for Mr Halls, in response, drew attention to the words of the Chief Justice in R v Thomson & Houlton [2000] NSWCCA 309: (2000) 49 NSWLR 383. The Chief Justice made it clear that the timing of the plea was not the only criteria, even though it may be the primary consideration. Spigelman CJ, in that case, said this: (at 418)

“[153] The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.
[154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) the complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
[155] The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.”

46 Here, the trial was potentially lengthy. The estimate was three to ten weeks. The Crown would have been obliged to prove tendency by reference to past offences. According to the respondent, the Crown could not have objected to a discount of 15 per cent. The appropriate discount was a discretionary judgment. It was suggested that her Honour’s determination was open to her (House v The King (1936) 55 CLR 499).

47 Again, unquestionably, her Honour’s allowance was most generous. It stretched the envelope. With some hesitation, I have come to the view that it was open to her and did not amount to error.

Ground 5: Manifest inadequacy.

48 Was the sentence, nonetheless, manifestly inadequate? Her Honour made a finding of special circumstances because Mr Halls would require continuing supervision and support for a lengthy period from the Probation and Parole Service after his release “to ensure that he complied with the Criminal Justice Programme” (ROS 7). No complaint was made against that finding. When determining the length of the sentence, her Honour said this: (ROS 7)

“I have had regard to the statistics. I recognise they are a blunt tool as they tell me nothing about the circumstances of the offence and little about the offender but they are of some value as a reference point. Those statistics indicated that sixty-one per cent of those sentenced for malicious damage by fire have imposed a full-time custodial sentence. The range of sentences imposed is twelve months to eight years. The range of non-parole periods imposed is six months to five years, although eighty per cent of the sentences imposed are in the range of two to five years with a non-parole period of twelve months to thirty months.”

49 The Crown submitted that the sentence of 4 years with a non parole period of 2 years did not adequately reflect the objective seriousness of the offence and gave undue weight to the subjective circumstances of Mr Halls (R v Hayes [2001] NSWCCA 358 para [51] per Sully J and R v Rushby [1977] 1 NSWLR 594 at 597/8 per Street CJ).

50 Counsel for the respondent, referring to the statistics of the Judicial Commission, said that, in a large sample, the sentence imposed was “well above the median”, including the non parole period. Attention was drawn to a number of cases (R v Nolan (unreported, CCA, 03.02.94); R v Priest [2000] NSWCCA 27) which were said to provide insight. The sentences imposed were less than that given to Mr Halls. Nolan was an offender assessed as having an IQ of 61, which was almost the same as that of Mr Halls.

51 The sentence, even in the context of the generous findings by her Honour, was lenient. Nonetheless, there was material before her Honour which gave reason for hope that Mr Halls’ future may not be as bleak as his custodial history and his propensity to light fires may suggest. His intellectual and other problems had at last been recognised and were being addressed. For the first time, accommodation had been made available which offered the prospect of continuing supervision. That supervision, under the regime established by her Honour (assuming Mr Halls were released to parole) would be mandatory in the first two years. It would thereafter be readily available, as part of the accommodation arrangements.

52 It was open to her Honour to attach importance to this aspect. Were it not for the matter of aggravation (Ground 2), that is, the extent of the damage, it may have been open to her Honour to impose the sentence which she in fact imposed.

Discretion.

53 Having found error on a Crown appeal, the issue arises whether this Court should intervene to correct that error by resentencing the offender (R v Allpass (1993) 72 A Crim R 561 at 562-3; R v Wall [2002] NSWCCA 42, per Wood CJ at CL at [70])? On a Crown appeal, if Mr Halls were to be resentenced, the term imposed would be at the lower end of the range (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 341).

54 Mr Halls, during his lifetime, has presented a considerable challenge to the legal system. His intellectual disability and repeated offending has meant that the community has been put at risk upon his release. Whatever sentence is imposed, Mr Halls will be released again into the community, even if his release were postponed for a time by a lengthier sentence. What emerged from the material placed before her Honour on sentence was that, for the first time, Mr Halls’ problems were being addressed, through the intervention of the Criminal Justice Support Programme. Her Honour, rightly, placed great weight upon that aspect. Under the supervision which will be available through the Criminal Justice Support Programme, as part of the accommodation which will be provided to Mr Halls upon release, there is the real chance of breaking the cycle of release and reoffending. The Court should stay its hand in order to encourage the respondent rather than disappoint his expectations, thereby perhaps undoing the progress that he has made.

55 In the unusual circumstances of this case, I believe this Court should not intervene.

Order.

56 I propose that the Crown appeal be dismissed.

57 HISLOP J: I agree with the order proposed by Kirby J. I agree generally with his Honour's reasons save for paragraph [47], with which I disagree. In my opinion, it was not open to the sentencing judge to allow a discount of 20 percent for the plea of guilty entered on the second day of the trial.

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04/11/2008 - Spelling mistake, para [4] - Paragraph(s) para [4]