R v Keighran

[2018] NSWDC 536

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Keighran [2018] NSWDC 536
Hearing dates:	26 March 2018
Date of orders:	03 April 2018
Decision date:	03 April 2018
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Accused sentenced to 2 years and 7 months imprisonment. Non-parole period of 1 year and 8 months.
Catchwords:	CRIME — Property offences — Destroying or damaging property SENTENCING — Subjective considerations on sentence — Extra curial punishment CRIME — Complicity — Joint criminal enterprise SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Aggravating factors — Breach of conditional liberty
Legislation Cited:	Crimes Act 1900 (NSW), s 195 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases Cited:	R v Harmouche (2015) 158 A Crim R 357 Jehad Jodeh v R (2011) NSWCCA 194 Hampton v R [2014] NSWCCA 13 Muldrock v R (2011) 244 CLR 120
Category:	Sentence
Parties:	Crown Scott Stephen Keighran (Accused)
Representation:	Counsel: Mr V Constantino (Crown) Mr S Buchen S.C. (Accused)   Solicitors: Ms R Trinnie (Crown) Mr Jamison (Accused)
File Number(s):	2016/220377

Judgment

1. HIS HONOUR: The offender pleaded guilty in the Local Court and adhered to that plea before me to an offence that, while in company, on 10 June 2016 at Emu Plains he damaged by fire the O’Donoghue’s Irish hotel at 99 Great Western Highway, Emu Plains. A moment ago he was arraigned on an indictment because, as the transcript will reveal, over the course of the adjournment from last week I had cause to consider that perhaps the charge that had been laid in the Local Court was technically deficient. Of course, he should be taken to have entered his plea to that charge in the Local Court.

2. The relevant offence is an offence under s 195 subs 1A subpara (b) of the Crimes Act and has a maximum penalty of 11 years imprisonment. There is no applicable standard non-parole period.

Agreed Facts

3. The facts are, to a significant degree, agreed and what follows comes from the facts. The Crown also tendered the CCTV footage of the incident, and I will be saying something about that. The offender gave evidence before me and part of his evidence touched on how the fire at the hotel came to be lit and his role in the lighting of it. The following then is taken from the facts document.

4. On the evening of 9 June Mr Harley McKenna, now deceased, and the offender attended the O’Donoghue’s Irish Pub in Emu Plains where they remained for some time, consuming alcohol together. Just prior to 8pm, staff at the hotel requested the men leave due to their offensive and quarrelsome behaviour. Although they became argumentative with staff, both men left the hotel and went to the offender’s home located about 200 metres from the hotel at 5 Avoca Avenue, Emu Plains.

5. Some time after leaving the hotel and while spending time at the offender’s home, the offender and Mr McKenna returned to the hotel. The offender carried a garden rake from his premises and the late Mr McKenna carried a bucket containing petrol. Both men walked the short distance from the offender’s home to the hotel. Mr McKenna was dressed in pants and a hooded jacket; the offender was dressed in jeans and a jacket. The hotel had closed for trade around midnight that evening and commercial cleaners had been in the building until around 1.30am, shortly before the offender and the deceased returned to the hotel premises.

6. The deceased and the offender walked to the hotel in the early hours of 10 June 2016 around 1.35am. A member of the public noticed the deceased and the offender standing near bushes close to the hotel around that time. The CCTV footage recovered from the hotel shows the deceased and the offender walking towards the O’Donoghue’s hotel at about 1.45am, although apparently the timestamp is about 17 minutes out. The deceased was carrying a red-coloured plastic bucket containing petrol, while the offender can be seen carrying a large garden rake.

7. The offender and the deceased walked along the hotel wall. It is the Crown’s position, and this was effectively confirmed in the offender’s evidence, that the offender used the rake to smash the window to the kitchen area on the western side of the hotel and the deceased threw the bucket of petrol he was holding through the smashed window and onto the wall of the hotel. The petrol was then ignited, likely to have been by the deceased using a cigarette lighter, immediately creating a large fireball causing both part of the building and the deceased to become engulfed in flames. It was around this time that a large explosion was heard by at least one nearby resident and one of the men, it would seem overwhelmingly that it was the offender, was heard to yell, “I told you this would happen.”

8. The deceased was able to stumble or crawl a short distance before succumbing to the flames, collapsing on the roadway a short distance from the hotel. The offender attempted to go to the deceased’s aid but then found his legs engulfed in flames. He then ran from the location to his next door neighbour’s house, where he sought their help for first aid and then to contact emergency services for the deceased. The offender told his neighbour, falsely, that he had been standing out the front of his house when someone had thrown a substance onto him which was burning him. The offender had told his neighbour that the substance had exploded when it hit him and his friend, and that his friend had run somewhere down the street. The offender asked his neighbour to summon help for the deceased. It was evident that the offender was concerned for his friend and seeking aid for him.

9. The deceased remained where he fell, lying on the roadway a short distance from the hotel. Responding to calls to the emergency line, police arrived shortly after to find the deceased lying on the roadway, suffering significant burns to the majority of his body. The entirety of his clothing had been incinerated and he was suffering from burns, as I say, to the majority of his body. Police attempted some first aid, including applying water to the deceased’s burns until the arrival of paramedics. The deceased was taken to Nepean Hospital, suffering severe burns to approximately 90% of his body. He was conveyed by helicopter to Royal North Shore Hospital but died from his injuries at about 9.25pm that day.

10. Police also attended the nearby premises in Avoca Street and spoke with the offender. They noted that he had suffered burns to his lower legs and that what remained of his pants and one sock were lying on the lawn adjacent to the garden hose. The offender told police that someone had thrown petrol on him and his mate. The offender indicated that it occurred at the front of his house. The offender enquired after the deceased, and his clothing was later seized and examined. His premises were later searched and an open jerrycan was found in the garage. The offender was taken to Concord hospital and admitted to the burns unit where he received treatment for burns to approximately 30% of his body.

11. Fire brigade services attended the scene and extinguished the fire. During examination of the crime scene, the police located a large garden rake and a red plastic bucket. The remains of a cigarette lighter were found very close to the point of ignition. A number of photographs were taken of the scene. Later examination of the charred clothing found on the roadway found the presence of petrol on several of the samples. Petrol was also found on the remains of the offender’s jeans recovered from the lawn of his neighbour’s property.

12. The opinion of expert fire investigators was that the fire was likely to have been ignited by the use of the cigarette lighter found near the seat of the fire after petrol had been thrown onto the window by one of the men. The act of throwing petrol onto the building caused some of the petrol to disperse into a mist which, when ignited, rapidly caused a fireball. It was this resultant fireball which set fire to the building, engulfed the deceased and likely the offender to some degree as well.

13. The premises were damaged by the fire and there have been some photographs tendered. There was minimal fire extension inside the building, fortunately. The ground floor window was severely damaged. There was heavy charring to the second level timber floor structures. Damage to this area was seen through large holes in the Gyprock lining caused by members of the fire brigade in the course of extinguishing the blaze in ascertaining that no further fire was extending into the building. Damage consistent with scorching by a direct flame was noted on the rear of a large industrial fridge inside the window. Fire and heat damage was occasioned to the inside of the walk-in refrigeration unit which serviced the commercial kitchen. There was some water damage caused by the process of extinguishing the blaze. The commercial kitchen required repair following the fire and all the relevant food there had to be discarded.

14. There was an insurance payout of $99,328 in relation to property damage and there was also a payment of $456,000 for loss of trade for the period during which the premises were repaired and before normal trade could be restored.

15. As I said earlier, the CCTV footage was tendered before me and played. It is clear from the CCTV footage that the offender caught alight, in my view, after endeavouring to lend assistance to the late Mr McKenna.

16. When giving evidence, the offender said his recollection of what happened immediately prior to and post the fire was not clear. He gave evidence that he and the deceased Mr McKenna had been drinking and had taken some cocaine. He had some recollection that it was Mr McKenna who brought up the idea of burning the hotel first and that the offender initially thought it was in jest. His evidence was that he said to Mr McKenna, when it became apparent that he was serious, that he thought it was a bit extreme, and that Mr McKenna had said something along the lines of, “That is why you are my mate. You are the only one who would come with me.” The offender said he could not imagine that he wanted to burn the hotel down, the hotel being his local. He said he believed he had accompanied Mr McKenna out of loyalty.

17. The offender gave evidence that at the time he did not believe that there was anyone present on the property when it was set alight and that if he had believed there had been anyone there, he would not have gone ahead with the plan. He gave no evidence, however, that he or the deceased took any steps to ensure that no one was in the hotel when it was set alight. I am prepared, however, to infer that, given the hotel was his local, that he was likely to be aware of its closing time.

18. In cross-examination, he agreed that he had taken the rake to the hotel to smash a window so that Mr McKenna could distribute the petrol more easily. He also agreed he had gone to the hotel with Mr McKenna to assist him to light it. He accepted that there were other commercial premises nearby. He was asked in cross-examination why he had initially given a false account to a neighbour and said he had no idea why he did but accepted it was possible he had done so to deflect any suggestion he was responsible for the fire.

Assessment of Objective Seriousness

19. I turn then to my assessment of the objective seriousness. The offender is criminally liable for the offence on the basis of the doctrine of joint criminal enterprise, the evidence before me on the balance of probabilities establishing that it was the late Mr McKenna who lit the fire. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed, a particular participant’s level of culpability is to be assessed by reference to the conduct of that particular participant.

20. I have already noted the offender was not the person who lit the fire. I also am satisfied on the balance of probabilities that it was the late Mr McKenna’s idea to burn the hotel down, it would seem, as some sort of retaliation for having been required to leave the hotel earlier that night. The offender’s role was one of being an assistant to the late Mr McKenna, although, in saying that, his role in the offence was still a significant one. The offence of its very nature involved a risk to public safety, it caused considerable damage to the hotel and there was a risk of damage to other buildings. The offender’s evidence in cross-examination, together with the fact he was a regular at the hotel, satisfies me beyond reasonable doubt that he was aware of the location of other commercial premises that were nearby and the risk to them. While, as a matter of law, the offender is not responsible for the death of Mr McKenna, his death highlights the risk associated with such offending. The level of planning was limited and rudimentary.

21. The offence and the offender’s role in it are clearly serious. Although not strictly necessary, given no standard non-parole period applies, I consider the objective seriousness of the offence falls below the mid-range but clearly not at the bottom of the range.

The Offender’s Subjective Case

22. I turn then to the offender’s subjective case. The offender’s date of birth is 20 September 1985, so he is 32 now and was 30 years of age as at the date of the offence. He has a limited criminal history. He was fined for certain traffic offences in 2007 and received a further fine for an assault occasioning actual bodily harm in 2008. In 2009 he was fined for some summary public order offences and an offence of property damage. He had a period in custody from 26 September 2014 until 4 December 2015 in relation to an offence for which he was ultimately acquitted.

23. In relation to the offence I am to sentence him for, he has been in custody since 21 July 2016, although during the period 21 May through to 20 October 2017 he was serving a 5 month sentence of imprisonment for an offence of common assault which occurred while he has been in custody.

24. In my view, his criminal history is limited and does not disentitle him to at least some leniency in this sentence.

25. The offence occurred while on bail on the charge of which he was ultimately acquitted. The fact the offence was committed while on conditional liberty is an aggravating factor (see s 21A of the Crimes (Sentencing Procedure) Act). It is immaterial that he was ultimately acquitted of the charge to which the bail related (see R v Harmouche (2015) 158 A Crim R 357).

26. There is a presentence report which provides background information about the offender. None of the information contained in the presentence report was disputed during the offender’s cross-examination. Prior to going into custody, he had been residing with his mother and brother. He intends, upon his release, to reside with his brother. It is clear from the presentence report, testimonials and from the attendance of family members at the sentencing hearing and today that the offender continues to enjoy family support and will do so upon his release from custody.

27. The presentence report suggests that the offender had a conventional upbringing, although there were some alcohol abuse issues within the family home.

28. Education-wise, he completed the Higher School Certificate and, upon leaving school, completed his certificate in air conditioning and refrigeration as a tertiary course during a 4 year apprenticeship. He had started his own air conditioning business shortly before the offence and he said in evidence that he hopes to go back to that upon his release from custody.

29. The offender revealed in the presentence report, and his evidence was consistent with this, that on the evening of the offence he and the deceased had consumed alcohol and cocaine. He disclosed a history of having, in the past, abused alcohol and benzodiazepines. In essence, the account he gave as to his involvement in the offence in his evidence was consistent with the account he gave to the author of the presentence report. He acknowledged the impact of the offence on the owners of the hotel and their livelihood, and said that, “It was the worst thing he had ever done with the worst possible outcome, for no reason at all.” The offender was assessed in the presentence report as having a medium risk of re-offending.

30. The presentence report discusses his physical health and other evidence before me addresses that issue. As a result of the offence, the offender suffered burns to 30% of his body, principally to his legs. He was admitted to Concord Hospital’s Burns Anit on 10 June 2016 and discharged on 22 July 2016, so he spent initially over a month in that burns unit. The discharge summary indicates that when he was discharged his legs were not completely healed and he would be required to wear compression bandages. He had received skin grafts to both legs and was required to perform daily exercises. It was noted that he would need follow-up for at least 18 months to prevent scarring. At the time of discharge, the scarring process was active and he was at risk of further scar development.

31. Obviously he received very significant burns and the CCTV footage suggests that this primarily occurred when he went to the aid of the deceased. No doubt he suffered extreme pain as a result. It is clear both from documents placed before me, from the offender’s Justice Health file and his own evidence that the management of his burns and his pain in the custodial environment has been difficult. He suffered a number of significant infections and there have been issues in relation to his appropriate pain medication. It also appears from the records that he was required to wear ankle cuffs when taken to Concord Burns Unit for outpatient care. It is difficult to understand why that was thought to be necessary in all the circumstances. Although the presentence report records that the offender says that he is now physically fit, he will upon his release still need to undergo further treatment at Concord hospital to ensure his complete physical rehabilitation.

32. In terms of his mental health, the presentence report records the offender advising that since 2007 he had begun to experience anxiety attacks and that after the commission of the current offence he sought out psychological intervention. In that regard, there is a report dated 24 January 2018 from Alison Cullen, a forensic psychologist. In terms of the offender’s background, what is recorded in that report is consistent with the content of the presentence report. The report records the closeness of the relationship he had with a person called Mick who had been shot to death on 29 March 2016. The offender told the psychologist that after Mick’s murder and in the time leading up to the current offence he had been depressed over Mick’s killing and was drinking heavily.

33. In terms of his drug and alcohol use, he told the psychologist that he commenced using alcohol and cannabis at 13 but ceased cannabis use at 16. He also described the use of ecstasy pills on weekends and binge drinking. He told the psychologist that he had been abstinent from illicit substances since entering custody. I note in that regard he has no drug infringements on his custodial record. He says he has no intention of resuming the use of illicit substances. Perhaps only time will tell.

34. The psychologist records the offender’s intention to look after the deceased’s partner and child, and that he maintains contact with the late Mr McKenna’s mother, who is supportive of him. The psychologist considered that he showed deep and genuine contrition.

35. The psychologist expressed the opinion that the offender was likely to suffer both physically and emotionally into the future as a consequence of the death of his long-term friend Mr McKenna. She considered that upon his return from a deployment with the Army Reserve some years prior to the commission of the current offence, he had experienced symptoms commensurate with post traumatic stress disorder and panic attacks. The psychologist also considered it likely that at the time of the commission of the offence the offender was suffering from severe alcohol use disorder and post traumatic stress disorder. She considered that those disorders were likely contributors to emotional disregulation and impaired decision-making, which contributed to his role in the subject offence. The psychologist considered that he is in sustained remission in relation to his substance and alcohol use disorders. Given his expressed attitude to committing to long-term counselling and his family support, the psychologist was of the opinion there is a reduced risk of recidivism.

22. There was also placed before me a document dated 19 March 2018 from the Reverend Steve House who is the chaplain at the MRRC. The reverend records that the offender is a regular at the chapel service and, having discussed his offence with him, formed the opinion that the offender is extremely remorseful. The document also records that the offender has completed The Salvation Army “Positive Lifestyle” programme and has employment in the gaol.

23. An affidavit from the offender’s ex-partner, a Ms Clements, was also put before me. She and the offender were in a relationship in 2010 and have a son together. Although they separated some time ago, they have remained close. Ms Clements details the positive and supportive relationship the offender has with his son. Ms Clements also detailed her observations of the effect the fire has had on the offender. She notes that the hotel was a place the offender had, in the past, enjoyed attending. She also details the close nature of the relationship between the offender and the late Mr McKenna. In terms of the offender’s contrition, Ms Clements states, “To say that Scott is sorry for what happened is an enormous understatement.” Ms Clements also records that the offender has expressed a desire upon his release to do what he can for the deceased’s young daughter.

24. There was also placed before me a document in support of the offender from the mother of the late Mr McKenna, Ms Valentine. She too details the closeness of the relationship the offender had with her son. Ms Valentine has observed the remorsefulness of the offender and believes that it is genuine and considers that contact from the offender has helped her deal with the grief concerning the loss of her son. In her letter, Ms Valentine quotes movingly from supportive letters she has received from the offender whilst he has been in custody.

25. There is also a document under the hand of Ms Teagan Kakos, the late Mr McKenna’s partner. Her document echoes the content of Ms Valentine’s letter.

26. I mentioned earlier that the offender gave evidence concerning the circumstances of the offence and his involvement in it. His evidence also touched on the physical and emotional pain he has endured, the difficult time he has had in custody managing the treatment of his burns, his relationship with the deceased and his remorse, and his hopes for the future. I found the offender overall to be an impressive witness, demonstrating real remorse and insight into his offending.

27. I consider his relatively limited record, his genuine remorse, his desire for psychological help and his strong family support, supports findings that he has good prospects of rehabilitation and consider he is unlikely to re-offend.

28. I mentioned earlier that he pleaded guilty in the Local Court, and I will allow him a 25% discount of his sentence for the utilitarian value of his plea. I have commented already upon the clear evidence of the genuine nature of his remorse, which is extensive. He has suffered both physically and emotionally as a consequence of his offence. Clearly he will carry the physical scars of his involvement in the offence for the rest of his life. I also have no doubt that he will carry the emotional scars for a very long time.

29. I was referred to a number of authorities in this State which make it clear that, in such circumstances, I can have regard to the injuries the offender has suffered during the commission of the offence as extra-curial punishment. The extra-curial punishment may be seen as deterring the offender from re-offending and can be seen as partially fulfilling those objects of sentencing concerned with deterrence and retribution (see Jehad Jodeh v R (2011) NSWCCA 194). The serious nature of his burns and the difficulty in obtaining proper treatment, including appropriate physiotherapy, has meant that his time in custody has been and is more arduous than it is for other inmates.

30. I discussed earlier the psychological report and the mental health of the offender. The psychologist expressed the opinion that the mental disorders that the offender was suffering at the time in some way contributed to the impaired decision-making that resulted in his involvement in the offence. The fact that the offence was committed while under the influence of alcohol and cocaine is not a mitigating factor as far as the law is concerned. The use of those substances at the time of the offence, in my view, makes it impossible to determine that his post traumatic stress disorder was in some way causally connected to the commission of the offence. His mental health at the time does not reduce the moral culpability he has for the offence in these circumstances.

31. His rehabilitation in terms of the offence has clearly commenced, so too has his rehabilitation in terms of recovering from his burns. His need for continuing rehabilitation in relation to his physical and mental health, in my view, supports a finding of special circumstances.

32. The offender’s custody record and other evidence reveals that during the period of 26 September 2014 and 4 December 2015 he spent time in custody for an offence for which he was ultimately acquitted. It was submitted to me that I could in some way have regard to that period of custody in fixing sentence here. I do not consider that the authorities in this State collected in Hampton v R [2014] NSWCCA 13permit me to do so.

Imposition of Sentence

47. The offender has been in custody since 21 July 2016 but 5 months of that custody relates, as I say, to a sentence imposed for a common assault offence which occurred while in custody. In the circumstances, having regard to the principles of totality, I propose to commence the sentence for the subject offence from 21 September 2016.

48. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act and have determined that the only appropriate sentence is one of imprisonment. Offences of damage by fire in company, essentially arson, are always very serious because of the risk to property and human life inherent in them. Significant sentences need to be imposed on persons who commit such offences in order to deter the offender concerned and others from engaging in such conduct. Deterrence, both general and specific, are important objectives of sentencing. As I observed earlier, however, the extra-curial punishment the offender has suffered means that the objectives of sentencing in this case has already partially been achieved.

49. The maximum penalty has been taken into account as a legislative guidepost, as explained by the High Court in Muldrock v R (2011) 244 CLR 120.

50. I have considered the cases I was referred to by both the Crown and the offender’s counsel but do not consider that they establish a range of sentence for this offence. I have also had regard to the statistics I was referred to, bearing in mind the limitation of those statistics. Sentencing remains individualistic and intuitive, bearing in mind the need for consistency.

51. Mr Keighran, you are convicted of the offence to which you have pleaded guilty. You are sentenced to a term of imprisonment consisting of a non-parole period of 1 year and 8 months and a balance of term of 11 months. That is a total sentence of 2 years and 7 months. The sentence dates from 21 September 2016. The sentence expires on 20 April 2019. You are to be released to parole pursuant to a statutory parole order on 20 May 2018.

52. So it’s a total sentence of 2 years and 7 months. It’s made up of a non-parole period of 1 year and 8 months, and a balance of term of 11 months. It’s to date from 21 September 2016. As I see it, the sentence expires on 20 April 2019 and he’s to be released to parole on 20 May this year, 2018. Would people just check the dates, please?

53. COSTANTINO: I agree with those dates, your Honour.

54. JAMISON: Yes, your Honour, I agree also.

55. HIS HONOUR: There’s nothing left on a 166 certificate or anything like that, Mr Crown? I think the other matter had been formally withdrawn.

56. COSTANTINO: As I understand, yes, your Honour. Yes, your Honour, there is no other ancillary matters.

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Amendments

30 July 2020 - Case name amended to only reflect offender's last name.

Decision last updated: 30 July 2020