R v Ledger
[2021] ACTSC 103
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ledger |
Citation: | [2021] ACTSC 103 |
Hearing Date: | 27 May 2021 |
DecisionDate: | 27 May 2021 |
Before: | Murrell CJ |
Decision: | The offender is sentenced to a three-year good behaviour order with additional conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted arson |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 Criminal Code 2002 (ACT) ss 44, 404 |
Cases Cited: | R v King [2016] ACTSC 191 |
Parties: | The Queen ( Crown) Phillip Ledger ( Offender) |
Representation: | Counsel T Lee ( Crown) Self-represented ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Self-represented ( Offender) | |
File Number: | SCC 43 of 2021 |
MURRELL CJ:
Introduction
The offender pleaded guilty to one count of attempted arson, contrary to ss 404 and 44 of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $240,000, 15 years' imprisonment, or both.
The offender entered a plea of guilty on the third mention in the Magistrates Court. The Crown case was strong, but that was partly because of admissions that the offender had made to the police. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT), I will allow a discount of 25 per cent of the sentence that I would otherwise have imposed.
Facts
As at 2019, the offender had been employed at Hiway Concrete in Hume, ACT for about five years. Mr Spencer is the owner of Highway Concrete.
On 18 November 2019, the offender telephoned Mr Spencer, and questioned Mr Spencer about how he would survive over the Christmas period without pay. Mr Spencer suggested that they catch up and “try to sort it out”. The offender responded abusively, demanding better treatment from Mr Spencer. The offender announced that he would terminate his employment on the following Friday.
That evening, the offender sent Mr Spencer a text message complaining about the lack of a pay rise, and saying:
[W]ot goes around will come around … [sic]
At about 3:30 PM on Sunday 22 December 2019, the offender attended the premises of Hiway Concrete. He threw flammable liquid from a container onto and around a 2015 Kenworth T359 truck that was owned by Mr Spencer and used in his Hiway Concrete business. The offender then threw the container down next to the truck and ignited the liquid.
The resulting fire burned the grass around the truck in an area of approximately 20 metres by 5 metres, but the truck itself did not ignite.
The offender drove away without attempting to extinguish the fire. ACT Fire and Rescue were called to extinguish it.
CCTV footage showed the offender committing the offence and driving past the site on three occasions as bystanders attempted to extinguish the fire.
At the time of the offence, there was a total fire ban in the ACT.
On 23 December 2019, police attended the offender's residence. The offender agreed to participate in a record of interview. Initially, the offender admitted to being at Hiway Concrete at the time of the offence but denied lighting the fire. After police told the offender that he would probably receive a summons in relation to the offence, the offender admitted to throwing flammable liquid onto the truck and setting it alight with intent to cause fire damage to the truck.
Objective seriousness
The offence was of low objective seriousness, when compared to other offences of this type. It was an attempt to commit arson, which was unsuccessful, albeit that it resulted in minor damage to grass. It was an impulsive offence motivated by resentment which, in turn, was related to the offender's underlying anxiety.
It was an impulsive offence. There is evidence through the pre-sentence report that, at the time of the offence, the offender drove near his former place of employment on an unrelated errand. He noticed a new truck parked near the front fence and decided to commit the offence.
On the other hand, there was an aggravating feature that an accelerant was used, (although use of an accelerant is a common feature of arson offences). Further, the offence occurred during a total fire ban in the ACT. The grass fire resulting from the offence required the attendance of ACT Fire and Rescue, no doubt at some expense to the ACT community.
Subjective features
The offender is 70 years old.
He has a limited criminal record, comprising very minor matters for which he was penalised by way of small fines. It is significant that the offender has reached an advanced age without acquiring a significant conviction.
The offender was born in Yass, New South Wales, and is one of four siblings. When he was five years old, his family moved to Canberra. The offender had a happy childhood.
Most of the offender's immediate family are now deceased. The offender maintains some contact with a surviving sibling, who lives interstate.
The offender left school at 16 years of age. From then until late 2019, he was continuously employed. For the last 21 years of this working life, he drove trucks. He has not worked since the offence. He receives the aged pension.
The offender has been married for 45 years, and the couple owns their own home. They have a loving and supporting relationship. The offender's wife suffers health problems and struggles with mobility. The offender assists his wife to attend her many medical appointments. Because of embarrassment, the offender has attempted to keep the offence from his wife.
The offender himself experiences health issues. Recently, he was diagnosed with a degenerative bone disease. He is being assessed for other medical problems.
The offender has two adult children, who reside in Canberra. When speaking to the author of the pre-sentence report, the offender's son stated that the offence was “very out of character” for his father.
The offender has no problems with substance abuse.
One of his hobbies is tinkering with motors and, recently, he repaired several lawnmowers for members of his family.
The offender suffers from anxiety, for which he is treated with medication. At the time of the offence, he was under stress; he was experiencing feelings of considerable anxiety concerning his partner's health and the need to convey her to numerous appointments, the couple's significant current financial difficulties, and the prospect of limited financial resources in the future.
In the period leading up to Christmas, these matters weighed particularly heavily on the offender. At the same time, he felt resentful towards his former employer. The offender has acknowledged that he committed the offence as “payback” towards his former employer, with whom he remains in dispute concerning unpaid salary and leave entitlements.
The offender told the author of the pre-sentence report that, while commission of the offence provided some immediate satisfaction, by the time that he arrived home, he regretted his decision and realised that he had made a significant mistake.
The author of the pre-sentence report noted that the offender was contrite and assessed the offender as at low risk of general reoffending.
Comparable cases
The court was referred to the case of R v King [2016] ACTSC 191 (King). The objective facts of that case were somewhat more serious than those in the present case. In King, there was a co-offender and, at night in a residential area, the offenders threw Molotov cocktails at the victim's vehicle, which was parked in his driveway. The victim was at home and heard an explosion. He attended the fire and extinguished the flames with a garden hose. Burns J imposed a sentence of six months' imprisonment, which was suspended on the offender entering into a good behaviour order for two years on conditions that included a condition that he complete 200 hours of community service work.
The limitations of statistics are well known. However, I note that the ACT Sentencing Database indicates that, between July 2012 and November 2020, of 51 cases involving arson, only 45 per cent of offenders received a sentence of full-time imprisonment. Four per cent received a good behaviour order and 24 per cent received a fully suspended sentence.
Other sentencing considerations
In sentencing the offender, I am required to take into account the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT). Insofar as they are known and relevant, I have referred to those factors above.
Relevant sentencing purposes include general deterrence and denunciation.
The author of the pre-sentence report considered that the offender would not benefit from more than low intervention by ACT Corrective Services, commensurate with the assessed low risk of recidivism. He was assessed as unsuitable for community service work because significant health issues would impede his ability to complete such a condition.
I note that, given the low objective seriousness of the offence and the offender's subjective circumstances, the Crown has quite properly conceded that a good behaviour order is not outside the range of available sentences.
Sentence
The offender is convicted of the offence. I make a good behaviour order for a period of three years, from 27 May 2021 to 26 May 2024, with the following additional conditions:
(a)The offender submit to the supervision of ACT Corrective Services for 6 months and thereafter for any further period that ACT Corrective Services deems appropriate; and
(b)The offender report to Corrective Services by 4 PM on 28 May 2021.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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