R v McMahon; R v Robb

[2017] NSWDC 476

District Court

New South Wales

Medium Neutral Citation:	R v McMahon; R v Robb [2017] NSWDC 476
Hearing dates:	29 September 2017
Date of orders:	25 October 2017
Decision date:	25 October 2017
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	With respect to McMahon: head sentence of 5 and a half years, 3 and a half years NPP  With respect to Robb: head sentence of 5 and a half years, 3 and a half years NPP
Catchwords:	CRIME — Property offences — Destroying or damaging property — In company — Co-offenders — Arson — Extensive damage to premises — SENTENCING — Sentence after Trial — Penalties — Full time imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act
Cases Cited:	Cohen v R [2011] NSWCCA 165 Newton v State of Western Australia [2006] WASCA 247 Porter v The Queen [2008] NSWCCA 145 R v Baker [2000] NSWCCA 27 R v Elzakhem [2008] NSWCCA 31 R v Glover [2002] NSWCCA 376 R v Hemsley [2004] NSWCCA 228 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pitt [2001] NSWCCA 156 R v Shahrouk [2014] NSWCCA 87 R v VAA [2006] NSWCCA 44 Ruge and Cormack v R [2015] NSWCCA 153 Simms v R [2014] NSWCCA 286 Watts v R [2010] NSWCCA 315
Category:	Sentence
Parties:	Regina (Crown) McMahon (Offender) Robb (Offender)
Representation:	Counsel: Ms S Oliver as Crown Prosecutor Mr I Wallach for Accused McMahon Mr J Carty for Accused Robb
File Number(s):	2014/00236082; 2014/00242772

Judgment

1. On 6 March 2014, a two‑storey four‑bedroom brick house at 35 Rickards Road, Sandy Beach was destroyed by fire. The two offenders, Jamie McMahon and Sharon Robb, together with various of their respective children, had lived in the premises in a de-facto relationship for the better part of the previous eight years. Investigations into the cause of the fire led to suspicion falling upon Mr McMahon and Ms Robb who had been seen leaving the premises a short while before it became totally engulfed by fire.

2. On 28 March 2017, the two offenders pleaded not guilty in the District Court at Coffs Harbour to an indictment that they had, in company with each other, intentionally destroyed the house at 35 Rickards Road, Sandy Beach by fire contrary to the provisions of s 195(1A)(b) of the Crimes Act 1900. On 7 April 2017, the jury returned verdicts of guilty against both offenders.

3. Following the verdicts of guilty by the jury, each of the offenders was remanded in custody from 10 April 2017. Each of them had been on bail prior to that date, although Mr McMahon had served some earlier period of time in custody with respect to the offence.

4. Proceedings on sentence were heard by me on 29 September 2017.

THE OFFENCE

5. An act of intentionally or recklessly destroying or damaging property belonging to another person constitutes an offence contrary to the provisions of s 195 of the Crimes Act 1900. That section proscribes a number of variants of the primary offence and imposes different maximum penalties in respect of the different circumstances which are contemplated.

6. The primary offence of destroying or damaging property belonging to another person carries a maximum penalty of 5 years (s 195(1)(a)). If the destruction or damage is caused by means of fire or explosives, the maximum penalty is increased to 10 years (s 195(1)(b)).

7. In circumstances where the same act is carried out in company of another person or persons, the foundational act of destroying or damaging property carries an increased maximum penalty of 6 years (s 195(1A)(a)); and if the destruction or damage is caused by means of fire or explosives as well as in company, the maximum penalty is increased to 11 years (s 195 (1A) (b)). That specific offence with the increased maximum penalty of 11 years’ imprisonment is the relevant subsection in respect of which the present offenders have been convicted.

8. I should note in passing that if the destruction or damage occurred during an incident of public disorder, there is an increased maximum of 7 years for the foundational offence; and it is increased to 12 years where it is caused by means of fire or explosives (see s 195(2)). Offences under s 195 do not carry a standard non-parole period. I should also observe that within the same division of the New South Wales Crimes Act there are other offences created which carry specific aggravating features and hence larger maximum penalties. Section 196 introduces an element of destroying or damaging property with the intention of causing bodily injury to another person and the maximum penalty in such a case where it is occasioned by fire is increased to 14 years.

9. Of significance to the present proceedings, s 197 creates an offence where a person who destroys or damages property by means of fire or explosives dishonestly with a view to making a gain for that person or another has an increased penalty of 14 years’ imprisonment. The existence of that more serious offence involving the element of an intention to make a gain will assume some significance later in these Remarks.

THE FACTS GIVING RISE TO THE OFFENCE

10. For the purpose of passing appropriate sentences, I am required to make findings of fact based upon the evidence in the trial. Such findings must be consistent with the verdict returned by the jury. Facts found by me of any circumstance of aggravation of the offence are required to be established to my satisfaction beyond reasonable doubt. I am accordingly satisfied of the following facts.

11. Mr Ajit Nurpuri owned the property at 35 Rickards Road, Sandy Beach. The house situated on that property was a substantial four‑bedroom two-storey brick house constructed with a concrete slab on both the ground and first-floor levels. The house was located on ten acres of land in an extremely hilly and rural location situated approximately 20 to 30 minutes’ drive north from Coffs Harbour. The house was in a prominent position at the top of a hill overlooking banana plantations on nearby properties. Its prominent position at the top of a hill left it easily visible from numerous surrounding houses. In April 2006, Mr Nurpuri rented the property to the offenders Jamie McMahon and Sharon Robb. They were in a domestic or de-facto relationship and, together with various of their children, they appeared to have occupied the house together until sometime in 2013.

12. After occupying the property in 2006, it would appear, and I infer, that there were no problems with the subsequent necessity to pay rent during the ensuing years. However, in August 2013 the rent was not paid and it remained totally unpaid until November 2013.

13. In November 2013, the offender Jamie McMahon contacted Mr Nurpuri and advised him that he, McMahon, intended to move out of the property because he had separated from Ms Robb. Sharon Robb on the other hand expressed a wish to stay at the property and gave Mr Nurpuri $1,000 in cash towards the outstanding rent. She said that she would make up the shortfall by paying extra each week. The rent was $250 per week.

14. However, apart from that $1,000 cash which was paid in November 2013, no other rent was paid for the period between August 2013 and the subsequent fire at the property on 6 March 2014.

15. It would now appear that Mr McMahon’s advice that he intended to move out of the property in fact coincided with him going into custody on 11 November 2013 with respect to unrelated charges. Mr McMahon remained incarcerated until released on bail with respect to that charge, or those charges, on 25 February 2014.

16. During the time that McMahon was in custody, Mr Nurpuri, on 19 December 2013, served a notice to terminate the tenancy agreement citing the non‑payment of rent. The notice sought to have the premises vacated by 9 January 2014.

17. The property was not vacated in accordance with the notice and Mr Nurpuri brought proceedings in the New South Wales Civil and Administrative Tribunal seeking orders for possession.

18. On 21 February 2014, the proceedings were listed for hearing. Ms Robb appeared and consented to orders being made for the termination of the tenancy agreement. Needless to say, Mr McMahon did not appear, he still being, it would appear, in custody.

19. The terms of the consent orders which were signed required vacant possession to be returned to Mr Nurpuri on 7 March 2014. Each of the offenders was to be liable to pay $50 for each day of occupation prior to vacant possession being given to the owner.

20. Whilst the custody record from the New South Wales Department of Corrective Services reveals that Mr McMahon was released from custody on 25 February 2014, no evidence has been provided to the Court to permit a specific finding as to whether he returned to live at all at 35 Rickards Road for some time following his release, nor when he moved some of his valuables and property from the premises, nor when it was that he took up alternative accommodation at the home of a friend, Ms Darlene Midson, who resided at Platts Close, Toormina, which is an outer suburb of Coffs Harbour close to Sawtell and some 15 minutes’ drive south of Coffs Harbour itself.

21. The evidence led at trial was that at some time in March 2014, obviously prior to the date of the fire on 6 March, Mr McMahon had moved into the premises where Ms Midson was residing. He was apparently in a relationship with her at that time.

22. Even if he had moved straight into Ms Midson’s house upon his release on 25 February, Mr McMahon could not have been living at her premises for much more than a week or so by the date of the fire on 6 March. The evidence revealed that Mr McMahon had taken out a contents insurance policy with the NRMA in respect of the possessions inside 35 Rickards Road, Sandy Beach. In due course, police enquiries did not reveal the date upon which that policy was taken out. He told police that the policy was in an amount of 30 to 40 thousand dollars. Subsequently, he told police that he had moved some of his possessions from the house at 35 Rickards Road prior to the fire, but that “about three‑quarters” of his possessions were still in the house at the time of the fire.

23. The evidence is somewhat vague, but it would appear that on a number of occasions in the week or so leading up to 6 March 2014 Mr McMahon was in attendance at the premises at 35 Rickards Road, together with Ms Robb. I would draw the inference that some of those attendances were in relation to packing up belongings, presumably in order to provide vacant possession by 7 March, although it is certainly unclear as to how much, if any, of Ms Robb’s material had been moved out. As at that date, that is 7 March 2014, by my reckoning the outstanding rent would appear to have been in the vicinity of $6,000 for which each of the offenders made jointly and separately liable pursuant to joint tenancy agreement that they had entered into. Whether Mr McMahon himself might have endeavoured to escape from his legal obligations under the lease as a consequence of advising Mr Nurpuri that he had been moving out in November is not a matter which I need to resolve.

24. Against the above background, I am satisfied that on the morning of 6 March 2014 Sharon Robb drove from Rickards Road, Sandy Beach to Ms Midson’s home at Platts Close, Toormina where she collected Mr McMahon. The actual circumstances of Ms Robb collecting Mr McMahon that morning were the subject of some detailed and contradictory evidence in the course of the trial.

25. In her evidence in chief, Ms Midson said that she heard Sharon Robb’s car pull up outside her house on the morning of Thursday, 6 March 2014. She said that she was aware that Jamie left the house when the car pulled up and that she did not see him again until 7pm that night. In the course of cross‑examination by Mr Carty, counsel who appeared for Ms Robb, Ms Midson indicated that she had become aware that morning that Sharon Robb had run out of petrol. She was asked how she became aware of it and her evidence at the trial was as follows:

“She had rung up Jamie and I could hear the conversation between them ‘cause I was laughing, ‘cause she was lost in a different street that was further up the road. And she and he were saying that ‘I told you to watch the gauge.’ And he took my car and I don’t know what happened after that, but he just brought my car back and then she came and picked [him] up.” (transcript 246, line 20).

26. According to Ms Midson, when Mr McMahon borrowed her car he had told her that he was going to look for Ms Robb. In re-examination by the Crown Ms Midson was fairly specific. She said that she could hear the phone conversation because Ms Robb was pretty loud on the other end of the phone and she sounded upset and hysterical. Ms Midson was aware that Ms Robb said she had run out of petrol on De Castella Street, which is a street some distance from where Ms Midson lived and near to a road called Lyons Road. She specifically said that she could hear the conversation to the effect that Ms Robb wanted Jamie McMahon to come and collect her.

27. Of some significance in the evidence presented before the jury, each of the offenders had provided records of interview to police in which they each gave a version of events of the morning of 6 March 2014 which was at odds with Ms Midson’s account in cross-examination and re-examination but to similar effect as each other (and the same as Ms Midson’s original statement).

28. Each of them told police that Ms Robb had collected Mr McMahon before her vehicle ran out of petrol. The account given by each of the offenders was to the effect that after collecting Mr McMahon from Ms Midson’s home her car had run out of petrol with each of them in the vehicle. In those accounts Mr McMahon then went back to Ms Midson’s home on foot and borrowed her vehicle in order to go and buy petrol in a container from a nearby service station. The stark difference between the account given in evidence by Ms Midson which had Mr McMahon receiving a telephone call to advise him that Ms Robb had run out of petrol on her way to collect him and the accounts given by each of the offenders in their records of interview which have the petrol running out after he had been collected, in my view, and I have very little doubt, was likely to have played a significant role in the considerations and deliberation of the jury.

29. The issue of the obtaining of petrol on the morning of the fire by Mr McMahon was the topic which first raised its head during his interview with the police during the course of their investigation. At a point in time when police indicated that they were going to seize Mr McMahon’s clothing to investigate the possible use of an accelerant, he volunteered that Ms Robb’s motor vehicle had run out of petrol after she had collected him from the Midson house. He told police that he then walked back to Ms Midson’s and borrowed her vehicle to drive to the service station to get petrol. He obtained an empty jerry can from Ms Robb’s vehicle, drove to the service station where he filled it with petrol, presumably returned to Ms Robb’s and put petrol in it, in the process, spilling petrol on himself and his clothing before returning Ms Midson’s vehicle to her home and again presumably being picked up by Ms Robb in her now refuelled car.

30. According to Mr McMahon that was the explanation as to why police were likely to find traces of petrol on his clothing after the fire.

31. CCTV footage subsequently obtained from the petrol station disclosed Mr McMahon filling a jerry can of petrol at the service station shortly before 8.00am on the morning of 6 March.

32. Whilst noting the stark contradiction between the account given by Ms Midson as to the events of the morning of 6 March and the completely different versions given by the offenders I am uncertain as to what conclusion to draw. The Crown submits that the Court should accept Ms Midson’s altered evidence without reservation and find that Ms Robb’s car had not run out of petrol and conclude that the telephone call was made as a pretext to set up a fictitious explanation for the obtaining of a jerry can full of petrol. In the Crown’s submission the Court should be satisfied beyond reasonable doubt that this was part of a premeditated plan executed that morning to burn the house down later that day and it was, in effect, setting up in advance an effective alibi, if I may use that description, for the obtaining of the petrol. I am not prepared to make such findings to the level of satisfaction which is required.

33. The account given in cross-examination by Ms Midson was not included, as far as I am aware, in any statement provided to the police and was certainly not led from her by the Crown in chief. She was in a relationship with Mr McMahon at the time. The account given by her may well have been true and accurate. One is entitled to harbour a suspicion in conformity with the submissions put by the Crown. However, and conversely, if there had been such an elaborate set up, one would expect the offenders to have at least got the story straight in their interviews with the police. Although not cross-examined to suggest that her account was not truthful or accurate, notwithstanding its obvious disparity with the account given by the offenders to police, I am left with a residual concern about her account.

34. The only factor which I am able to be satisfied beyond reasonable doubt with respect to this body of evidence is that on the morning of the fire Mr McMahon filled a 5-litre jerry can of petrol at a service station before attending the house at 35 Rickards Road, Sandy Beach.

35. The road up to the house at 35 Rickards Road progresses past and close to the front of a number of other houses which are effectively on a ridge leading in an uphill semi-circle eventually arriving at number 35, which is prominent on a high hill or part of the ridge almost opposite those houses. Neighbours saw Ms Robb’s vehicle arrive that morning and it would appear that both offenders spent the day at the house. In the course of the day some neighbours heard raised voices from the house notwithstanding its distance across what was, in effect, a substantial gully. At one stage Ms Robb’s motor vehicle was seen driving around the house in such a fashion as to have its wheels spinning on the grass. According to the account subsequently provided by Mr McMahon to the police he consumed a quantity of alcohol in the course of the day including, I think, a bottle of wine and half a bottle of vodka.

36. Whilst it is possible that the plan to burn the house and presumably claim the contents insurance may well have been planned sometime in advance, and whilst it is possible, if not likely, that the obtaining of the petrol in the morning was part of a premeditated plan, having already indicated that I could not be satisfied of those facts beyond reasonable doubt, I can conclude, however, that I am certainly satisfied that by some stage during the afternoon of 6 March, the offenders had ultimately determined to actually set fire to the house. The motivation may in part have been some form of revenge against the landlord who had obtained the order for possession. However, I am satisfied that the substantial motive was a means of obtaining finance from the insurance of the contents in the face of the substantial debt which was owed to the landlord. I will say more about that aspect shortly.

37. In the course of the trial, evidence was adduced from two experts. I accept the evidence of Sergeant Gain in preference to the evidence of Mr Glover. In my view the jury must have reached the same conclusion. I am satisfied beyond reasonable doubt that an accelerant, most probably petrol, was used to facilitate the fire. Whilst I am of the view that it may well have been most likely Mr McMahon who was the major physical perpetrator in setting and lighting the fire, the Crown case and the jury’s verdict relied upon a common purpose between the offenders.

38. I am satisfied that such common purpose existed and it is accordingly not necessary that I reach a concluded finding as to who, in effect, lit the match.

26. Having lit the fire in the front entry vestibule, the two offenders drove away from the scene and down the single lane road past the front of their neighbours’ houses. They each subsequently claimed that the house had been locked. I accept the evidence of the expert that, in fact, the front door was slightly ajar and may well have facilitated the progress of the fire. Having been seen leaving the location the neighbours within minutes observed flames and smoke billowing from the house.

27. In the ensuing conflagration the house was totally destroyed. The brick walls and concrete slab floors remained but the house would have needed to be completely demolished in order to be rebuilt. The owner had insurance of some $344,000 which sum was inadequate to rebuild the premises. No evidence has been provided to the Court as to the actual replacement value of what was destroyed by the act of arson committed by the offenders. The house has not been rebuilt.

THE OBJECTIVE SERIOUSNESS OF THE OFFENCE

41. The act of damaging or destroying property by means of fire is known to the common law and in common parlance as arson. It has been described as an extremely serious and dangerous crime. The circumstances in which the crime may be committed are many and varied. There is a wide range of different aggravating or mitigating factors and enormous diversity of factual scenarios in offences involving the damaging or destruction of property by fire or explosives. The motive of an offender is relevant to an assessment of the objective seriousness of the offence (see Newton v State of Western Australia [2006] WASCA 247 cited in Porter v The Queen [2008] NSWCCA 145).

42. The extent of the physical damage caused is also a relevant factor in such an assessment (see R v Elzakhem [2008] NSWCCA 31). Consideration of the potential danger to others by the possible spread of the fire and the potential risk of injury to persons is also of significance (see R v Baker [2000] NSWCCA 27 and Porter v R [2008] NSWCCA 145), as is the degree of planning and premeditation (see R v VAA [2006] NSWCCA 44).

43. The nature of the property destroyed or damaged may also be a relevant consideration (see Newton v The State of Western Australia) [2006] WASCA 247).

44. In giving appropriate assessment to these factors I have, in addition to general contemplation of lesser as well as more serious objective circumstances, been assisted by a consideration of the various factual scenarios in the comparative cases which I have perused. I will make reference to those specific cases in more detail later in these Remarks.

45. In the present matter I am satisfied that the primary motive in committing the offence was one of financial gain. Whilst the significance of a consideration of motive was considered relevant in an assessment of the objective seriousness of an offence by Johnson J in Porter v The Queen at [81], which itself was a matter relating to s 195(1)(b), and the motive of committing an offence for financial gain is specified as an aggravating feature to be taken into account in determining the appropriate sentence for an offence pursuant to s 21A(2)(o) of the Crimes (Sentencing Procedure) Act, where Parliament has enacted a specific aggravated form incorporating that element of aggravation the principles enunciated by the High Court in De Simoni require a sentencing court not to aggravate the offence on that regard where the element has not been specifically charged. In this case it would have been open to the Crown to charge an offence carrying with it the intention to obtain a financial gain with a maximum penalty of 14 years. The Crown did not do so.

46. In my opinion there is a manifest tension thus created in circumstances where there is the required application of the De Simoni principle, particularly a situation where the motive for the commission of the crime formed an important part of the Crown’s circumstantial case in prosecuting the trial before the jury. In my view the jury would properly have been persuaded to a view that the existence of the contents insurance, combined with the fact that some important and presumably valuable possessions including a TV and the dog had been removed from the property in advance, and the circumstance of the increasing debt owed by the offenders to Mr Nurpuri were all factors which would have been highly relevant - and were highly relevant, no doubt - to a consideration of the guilt of the offenders.

47. However, clear authority with respect to the application of the De Simoni principle in the present circumstances means that I put to one side any conclusion of motive or financial imperative which may have culminated in financial gain in considering the relevant aggravating factors. (In this regard see the observations of Hamill J in Ruge and Cormack v R [2015] NSWCCA 153 at [38]‑[41].)

48. I should note in passing that unlike De Simoni this was not a case where the Crown accepted a plea of guilty to an offence less serious than the facts warranted (see De Simoni at [392]). It was rather a matter in respect of which evidence of motive in fact went to the jury.

49. However, I consider myself bound by the clear authority regarding the application of the De Simoni principle which, as Gibb CJ said in that case, may on occasion result in an artificial fact‑finding exercise.

50. The residential dwelling which was destroyed had been owned by Mr Nurpuri for over 30 years. It had provided a rental income since at least 2006, if not longer. The damage occasioned amounted to the total destruction of the house. It is properly to be categorised as substantial. The Court has not been provided with any information regarding the consequential loss to Mr Nurpuri other than the proposition that the sum insured of $344,000 was inadequate to cover the cost of demolishing the structure which remained standing.

51. The aggravating factor listed in s 21A of the Crimes (Sentencing Procedure) Act, namely that the offence was committed in company, is not separately to be considered as an aggravating factor. To do so would be to double count it as in the circumstances of the charge which was preferred it is an element of the charge which was brought before the jury.

52. There is no doubt that setting fire to a structure carries with it a consideration of the potential danger to others by the possible spread of the fire and the potential risk of injury to persons, including fire-fighters who may attend the scene. Such potential danger is undoubtedly part of the reason for the increased maximum penalties in case of destroying or damaging property by fire or explosives.

53. In the present matter, whilst there was the potential of injury to fire‑fighters who were called to attend upon the scene, the comparatively isolated location of this particular residential dwelling meant, in my view, that there was little chance of a fire spreading to nearby premises. There may, of course, have been some potential for nearby scrub and trees to be engulfed by flames and therefore the possibility that damage may have spread across otherwise effectively open land to the neighbours’ premises. However, in the circumstances of this particular house, its location, and the fire I consider such a factor to be no more than a possibility and I do not regard it as an aggravating factor.

54. I have found the degree of planning and premeditation involved in the commission of the offence difficult to determine. As I indicated, whilst I harbour a degree of suspicion that Mr McMahon in particular may have had a degree of premeditation for some period of time, I cannot reach any conclusion in that regard to the required level of satisfaction in order to take it into account as an aggravating factor. Similarly, for the reasons I have already expressed, whilst it is possible, if not even likely, that the purchase of petrol early on 6 March 2014 was, as the Crown has contended, part of a premeditated plan I cannot reach that conclusion beyond reasonable doubt.

55. However, given the combination of surrounding circumstances I am not of the view that the act of setting fire to the house was, in effect, a spur-of-the-moment or spontaneous decision. Just precisely when the plan coalesced into a joint purpose between the co-offenders is uncertain other than it most certainly had crystallised during the course of the day on 6 March 2014. Whether prior to that day there had been a plan in gestation or otherwise somehow latent is uncertain. To the extent that a lack of planning may operate as a mitigating factor I am not satisfied on the balance of probabilities that it was simply spontaneous. In such circumstances, and in accordance with the approach and principles articulated by the High Court in R vOlbrich [1999] HCA 54; 199 CLR 270, the offenders fall to be sentenced for what they in fact did. This involves some element of pre-planning but without the concerted or lengthy lead-up to the commission of the offence which one observes in some other factual scenarios.

56. The Crown has submitted that the offence falls above the mid-range of objective seriousness. Counsel for each of the offenders submits that it falls below mid-range.

57. Having assessed all of the relevant factors I am of a view that the commission of this offence falls squarely within the mid-range of offences of this kind.

SUBJECTIVE FEATURES REGARDING JAMIE MCMAHON

58. Mr Jamie McMahon, as I have already indicated, pleaded not guilty to the offence in respect of which the jury has found him guilty. He did not give evidence during the trial and he has not given evidence in the sentence proceedings before me.

59. A psychological report under the hand of Dr Ian Nisbet dated 21 September 2017 has been tendered. Information about his subjective background comes from that document. I should note that he maintains his innocence with respect to the offence of which he has been convicted and asserts complete ignorance as to the cause of the fire.

60. His maintenance of assertions of innocence does not operate as an aggravating feature of the offence, however it does disentitle him to the mitigatory aspect of remorse and contrition.

61. Mr McMahon was born on 28 October 1972. He was 41 years of age at the time of the commission of the offence. His family history, as described to the forensic psychologist, relates that he was born at Eastern Creek in Sydney. His biological parents gave him up for adoption. He does not know their identity and has never sought any contact with them. His adoptive parents were in their mid-40s when he was adopted and he described growing up with them as “like being brought up by grandparents”. Together with his sister, some three years younger than himself, he grew up in the adoptive family home at Sawtell on the New South Wales north coast. He described his childhood as unhappy and related incidents of corporal punishment administered by his adoptive parents. He described unhappy experiences at school and said that his attitude at high school was “rebellious”. He said that he had begun smoking cannabis when he was in Year 10 and was suspended as a result.

62. He told the psychologist that he left home at 16 years of age and obtained work in the Ford factory in Melbourne. That account says that he later returned to Coffs Harbour where he sought an engineering apprenticeship.

63. I note that his past criminal antecedents include a conviction in the Coffs Harbour District Court in September 1989 when he would have been 17 years of age for what was described as wanton driving. It would appear that Conomos DCJ placed him on a recognisance to be of good behaviour for a period of three years. In 1990, whilst still 17 years of age, he had numerous appearances in the Coffs Harbour Children’s Court for a variety of offences, including self-administering a prohibited drug, driving whilst disqualified, offensive behaviour, possessing housebreaking implements and possession of a prohibited weapon.

64. According to the account which he provided to the psychologist he met a lady called Cindy Shipman and they got married when they were both 20 years of age. Her family resided in the Coffs Harbour region but together they decided to move to Queensland “for a new start”. Over the next several years they resided in a number of locations in Queensland where Mr McMahon worked in various positions in the timber industry. In 1994 he was dealt with in Queensland for a breach of a domestic violence order.

65. The next entry in his criminal antecedents was for offences committed back in the Coffs Harbour region in June 2000. These involved resisting an officer in the execution of his duty and contravening a further apprehended domestic violence order. He was fined with respect to those matters. I am unaware as to whether they related to Ms Shipman or somebody else.

66. A further contravention of an apprehended domestic violence order was also recorded at Lismore Local Court in February 2001. In 2002 he was convicted of destroying or damaging property and also common assault. His next court attendance related to offences of destroying or damaging property in 2004 at Coffs Harbour. I have not been provided with the detail of those offences although I note that the damage in respect of each of the two charges was said to be less than $2,000. It may well be that the offences occurred in the context of domestic violence, which is touched upon in the psychologist’s report. In 2004, shortly after these offences he was convicted of possessing a prohibited drug. In 2006 he was again convicted with respect to cultivating a prohibited plant. He had formed a relationship with his co‑offender Sharon Robb in about 2002. He described the relationship to the psychologist as somewhat volatile and indicated that they had separated and reconciled a number of times before they had finally separated shortly before the fire which destroyed the home that they had previously shared.

67. During the period of that relationship he had the various convictions for possession of drugs to which I have referred in 2004 and 2006. He thereafter appears to have gone for a number of years without conviction. In 2013 he was again convicted of a number of offences of possessing a prohibited drug and in 2014 for a similar offence. I should note that the details of those offences are not disclosed but each resulted in a fine only.

68. With respect to the period of incarceration between 11 November 2013 and his release on 25 February 2014 I have not been provided with any specific details. I note that his criminal history reveals two counts of possessing a prohibited drug on 11 November 2013 which resulted in the imposition of fines. This is the same date that he went into custody. I presume that there must have been a more serious offence or offences charged at that time given his bail refused status until February 2014.

69. It would thereafter appear that he was on bail for whatever those offences were and in respect of which I understand he must have been ultimately either acquitted or the charges discontinued. Irrespective, he was on conditional liberty, on bail, at the time of the commission of the present offence.

70. It is appropriate to refer to his apparent substantial drug use as he outlined to the psychologist who has provided the report. As I have already adverted to he described having commenced using drugs when he was 25 years of age. He described his drug use as cyclic and involving sustained periods of abstinence followed by periods of serious drug abuse, mostly occasioned by the break‑up of a key relationship.

71. Following his break‑up with Ms Shipman he told the psychologist he started to use amphetamines which he described as his drug of choice. He told the psychologist that in the period after the break‑up of his relationship with his co‑offender, Ms Robb, he had started using methylamphetamine or ice. That period would appear to embrace the period immediately before the commission of the present offence.

72. Following the offence on 6 March 2014 in respect of which he has been convicted, after he was charged he was admitted to bail. The following year, on 29 August 2015, the offender was charged with assault occasioning actual bodily harm. He was refused bail in respect of that charge. I have been advised that a detention application seeking the revocation of his bail on the charge of arson was granted. The material before me does not definitively indicate whether the revocation was on the same day, however I will assume that it was.

73. The Corrective Services custody record indicates him entering into custody on 31 August 2015 but the Crown has been advised by Mr McMahon’s representatives and the Crown accepts that he in fact went into police custody on 29 August. He remained bail refused with respect to the assault occasioning actual bodily harm matter and also on the arson until the assault matter was dealt with in the Local Court on 13 November 2015. Mr McMahon was sentenced to the rising of the Court. That would have required a determination that the threshold had been crossed but presumably the Magistrate was of the view that because the offender had served some two and-a-half months in custody that no further period of incarceration was required.

74. I have no details with regard to the actual assault, nor whether or not a sentence of two and-a-half months would likely have been imposed had he not been bail refused in respect of the matter before me. Following the resolution of the assault matter the offender remained in custody bail refused with respect to the arson for approximately an additional two weeks until he was released on bail on 1 December 2015. He thereafter remained on bail until the verdict of guilty by the jury.

75. Following the break‑up of his relationship with Ms Robb and some time after the commission of the present offence Mr McMahon entered into a new relationship with a lady, Ms Anita Mison. Like the offender Ms Mison apparently has a history of drug abuse and it would appear that they came together as a consequence of that connection. I have received evidence that they are both committed to changing their lives for the better and according to a letter from Ms Mison they have now been some 12 months free of their drug problem. I am uncertain as to when that commenced.

76. The Court has not been provided with much enlightenment in the psychological report regarding the relationship with Anita Mison other than the fact that she resided in Newcastle. In her letter to the Court Ms Mison indicated that she and the offender had moved to Newcastle in an endeavour to escape their drug addiction. Documents provided to the Court indicate that they slept rough, as the terminology goes, in their motor vehicle for a period of time. They were located by the St Vincent De Paul Society through the Matthew Talbot Homeless Service whilst they were sleeping rough in the Newcastle region in October 2016.

77. Since November 2016 the offender and his now partner have worked together with that service in order to seek to be accommodated with the provision of housing by the Department of Housing. They moved into a property with support on 16 January 2017. Since that time Mr McMahon engaged with the SMART Recovery Program and attended appointments as required by the Matthew Talbot Homeless Service. He and his new partner appear genuinely to rely upon each other for mutual support. Documents from an Outreach program and communications from the Department of Housing support the account which has been provided to the Court.

78. Dr Nisbet in his psychological report in September 2017 noted that Mr McMahon had, in his view, a number of criminogenic needs that needed to be addressed. His most pressing need, according to Dr Nisbet, is to maintain abstinence from further drug use and it was noted that he had started to take steps to begin to address this issue but that these steps would need to be continued after his eventual release from custody.

58. Notwithstanding the positive steps that he appears to have taken in the period leading up to his trial for the present matter, his past history and cyclical relapses tend to indicate that optimism held for his rehabilitation ought to be somewhat guarded. I note, as I have already indicated, that he maintains his innocence with respect to the present matter, notwithstanding what was a compelling Crown case.

SUBJECTIVE FEATURES REGARDING SHARON ROBB

80. Ms Robb was born on 20 April 1964. She was 51 years of age at the time of the commission of this offence.

81. Similarly to her co‑offender, Mr McMahon, Ms Robb gave no evidence in the course of the trial, nor did she give any evidence during the sentence proceedings. Information regarding her subjective background is to be gleaned from the psychologist’s report prepared by Ms Megan Godbee, Forensic Psychologist, dated 16 July 2017; a pre-sentence report; and the offender’s criminal history. Ms Robb described having grown up in Sydney as the only child born of the union of her parents. She did have four older half‑siblings to her parent’s respective prior relationships, although these siblings were all at least 20 years older than she was. She grew up as an only child at home.

82. She attended a private Catholic school and reportedly had an academic performance which she told the reporter was “above average”. However, she left school at the age of 15 after completing Year 10. She completed a touch-typing course and worked for the Chamber of Commerce as a secretary. She completed two TAFE certificates in animal care, as she has reported and subsequently worked as a veterinary assistant. At approximately 20 years of age she sustained serious injuries after being a passenger in a car that collided with a telegraph pole. She had multiple fractures and undertook physical rehabilitation over several years.

83. She described having needed to learn to walk again. She indicated to the psychologist that she continues to experience daily pain as a consequence of those injuries from more than 30 years ago, although I do note that there is a reference to a subsequent accident. She subsequently returned to TAFE and completed certificates in Welfare and Disability Services and reportedly worked with disabled people in a variety of different capacities over numerous years. Those different capacities are said to have included as a Foster Carer for disabled children.

84. In the recent finding she had reportedly obtained a Diploma in Child Youth and Family Interventions as well as a TAFE Certificate in Children’s Services. I should note, in passing, that no certificate or records relating to those qualifications have been tendered before me. The psychologist’s report also indicates a history of injuries which were often associated with domestic violence. She was reportedly in a relationship for approximately ten years from the age of 20, but that relationship ceased when her husband was charged and subsequently sentenced to imprisonment for sexually assaulting the daughter of one of Ms Robb’s friends. She had two sons during this marriage. The oldest is now 29 years of age and the other had passed away last year at the age of 23. He apparently suffered a fatal heart attack after ingesting party drugs.

85. The next relationship lasted for some seven years after she had turned 30. She described this relationship as involving domestic violence and also the assault of her oldest son. She had two additional children to that relationship. Those children are now each aged 20 years, there being apparently less than 12 months in age between them. She described the detail of serious domestic and sexual assault at the hands of her partner. She described substance abuse having escalated following this relationship. She had recounted a history of substance abuse commencing with cannabis and alcohol at about 15 years of age and devolving to the use of heroin at the age of 18.

86. Following a methadone program when she was approximately 20, she claimed to have not consumed heroin or methadone since that time. Ms Robb’s account to the psychologist of having been arrested for heroin use when she was about 19 years of age is borne out by her criminal history which discloses that she was fined for the possession of heroin at Blacktown Petty Sessions in April 1984. Thereafter she had no criminal offences recorded until a series of offences including possession of goods suspected of being stolen, custody of an offensive implement in a public place and a variety of traffic matters which were dealt with at Port Macquarie Local Court in October 2002. Sentences of one month imprisonment were imposed. On the same date she was sentenced to concurrent terms of two months in relation to two separate offences of obtaining money by deception.

87. On appeal to the District Court at Port Macquarie those various concurrent sentences were quashed and fines or section 9 bonds were imposed in their stead. The detail of those offences has been provided to the Court by reference to the Statement of Facts at the time. Following the break-up of the violent domestic relationship, Ms Robb told the psychologist that she began to use amphetamines. She described this as self-medication. In late 2002 and early 2003 she was charged with driving a vehicle while under the influence of alcohol and other drugs, possession of a prohibited drug and custody of a knife in a public place. These were all dealt with by way of fine. Her criminal history reveals a further dishonesty offence of goods in custody in 2005 in respect of which she received a further s 9 bond. It would appear that thereafter there were no further offences until the matter which is now before the Court. In broad similarity with her co-offender Mr McMahon, Ms Robb maintains her innocence with respect to the present matter.

88. The Presentence Report indicates that since the time of the present offence she had been residing transiently with a variety of hospital accommodations. She had commenced a new relationship after the break-up with Mr McMahon, although that tragically culminated in the death of her partner during the trial as a consequence of a terminal illness. The Presentence Report further indicates that Ms Robb has been in receipt of Disability Support payments since her early twenties and had never held paid employment. She has had further minor incursions with the criminal law during the period before the trial. It is said that she intends to reside with her eldest son in Queensland upon her release. That son apparently has a serious mental health condition.

89. With respect to the commission of the present offence she advised the clinical psychologist that despite asserting her own innocence, she was unaware as to whether her ex-partner lit the fire. The psychologist was of the view that she would have benefitted from engaging in a Drug and Alcohol Rehabilitation Program.

COMPARATIVE SENTENCES AND STATISTICS

90. The maximum penalty prescribed by the legislature in respect of an offence provides an indication of the seriousness with which Parliament views particular offences and operates as a guidepost in assessing the objective seriousness of the facts in a particular case. Statistics maintained by the Judicial Commission of New South Wales whilst notoriously described as a blunt tool, can nevertheless provide assistance to a Sentencing Judge with respect to a broad range which has been applied in other cases under the same or similar sections dealing with relevantly similar conduct.

91. Similarly, whilst caution needs to be applied and one needs to bear in mind the specific sentences in other matters turn on the individual facts, a degree of assistance is able to be gleaned by reference to comparative cases. In some instances detailed perusal reveals that cases viewed as comparative are often revealed to not be truly comparative. However, on occasion an examination of broadly similar factual circumstances in like offences may prove instructive.

92. I have examined a large number of cases relating to arson offences against s 195 (1)(b) and s 195 (1)(a) and also offences pursuant to s 196 which carry an aggravating factor in order to assess the utility, if any, in assessing the objective seriousness of the present matter and also in assessing the range of sentences imposed with respect to the commission of generically similar offences. In doing so I have borne in mind the wide variety of different subjective features which have tempered the ultimate sentence in those respective cases.

93. Firstly, I turn to the case of R v Pitt [2001] NSWCCA 156. On New Year’s Eve 1999 Edward Pitt, in an angry state and affected by alcohol and drugs, had an argument at the Moree RSL with his de-facto partner. He suspected her of sexual infidelity.

94. After leaving the RSL he went to their home, which was owned by the Department of Housing, and after smashing the stereo and other household items he set fire to a curtain. The flames duly spread and caused considerable damage to the premises. The damage was estimated to be in the order of $19,000. The house itself was saved due to the valiant efforts of the local Fire Brigade.

95. The offender was 30 years of age, aboriginal, and had a lengthy criminal history. He pleaded guilty and expressed genuine remorse. The sentencing judge found that he had acted out of “spontaneous frustration” and not with any element of planning or premeditation.

96. With respect to the offence of causing malicious damage by fire contrary to s195(b) of the Crimes Act 1900 which carried a maximum penalty of 10 years imprisonment, he was sentenced to a term of 6 years with a 3 and a half year non-parole period in the District Court.

97. The Court of Criminal Appeal (per Wood CJ at CL, at [28]-[30]; Sully J agreeing) said:

“… the sentence imposed represented 60% of the maximum. The starting point, before taking into account the applicant’s plea of guilty and contrition, must accordingly have been very close to the maximum, even though the offence was unpremeditated and committed in circumstances where, as his honour pointed out, the applicant’s powers of reasoning were reduced, albeit that such reduction was self induced.

It is always difficult to engage in a comparative exercise utilising the Judicial Commissions statistics, since they cover a very broad spectrum of objective and subjective cases. They provide a useful background, but otherwise they need to be considered with some circumspection. Particularly is that so in the case of a S195(b) offence, since it is an offence that is likely to include cases of children setting fires in a variety of circumstances, ranging from the very serious to the trivial, as well as incidents of deliberate destruction by adult offenders, involving serious premeditated criminality.

Nevertheless, it seems to me that, once the timely plea and contrition of the applicant are taken into account, along with the circumstances in which the offence was committed, the sentence was outside the range and that this Court should reconsider the matter.”

98. In the event, Mr Pitt had committed subsequent offences and the Court ultimately came to the view that to intervene and reduce the sentence imposed at first instance for the arson offence would bring about a sentencing order that was manifestly inadequate. In the circumstances leave to appeal was granted but the appeal was dismissed.

99. A case dealt with at a later date in the Court of Criminal Appeal (R v Glover [2002] NSWCCA 376) concerned sentences of imprisonment for offences relating to 2 counts of maliciously damaging property by means of explosives contrary to s195 (b) of the Crimes Act 1900. The Department of Community Services (DOCS) office at Coffs Harbour and the building in which it was located had suffered substantial damage in the early hours of 3 August 1996 following the detonation of an explosive device which was placed on the footpath immediately outside the DOCS office. The offender had been motivated to cause the explosion in order to bring attention to what he perceived to be the failure of DOCS in relation to problems with his children. Two separate offences were charged as a consequence of the damage caused separately to the office of DOCS and the building in which it was contained. There was, however, only the one explosion.

100. Potential injury to nearby residents was taken into account as a circumstance of aggravation.

101. The offender pleaded not guilty but was convicted following a jury trial in the District Court. He was sentenced to concurrent terms of 8 years imprisonment with a non-parole period of 6 years. The maximum penalty was 10 years.

102. The Court of Criminal Appeal (per Dunford J; Ipp AJA and Studdert J agreeing) noted the absence of any contrition and the fact that there was no evidence of any psychiatric condition. The court also noted that notwithstanding that the appellant was a first offender, and that it was not the worst type of that particular offence, it involved the destruction of the building and the potential risk of physical injury to other persons as well as the damage and inconvenience to the offices of a government department rendering it less able to deal with other clients who might be seeking its assistance.

103. The court held that it was a serious offence which called for severe punishment to demonstrate the community’s condemnation of the conduct, as well as retribution and general deterrence. The challenge to the head sentence of eight years was dismissed but the court held that the sentencing judge should have found that the subjective features constituted special circumstances and the non-parole period was reduced by 12 months to a period of five years.

104. In 2008 the Court of Criminal Appeal again dealt with an appeal against severity with respect to offences of maliciously damaging property by fire contrary to s195(b) of the Crimes Act 1900 (maximum penalty of 10 years). In Porter v R [2008] NSWCCA 145 a 19-year-old youth had been drinking alcohol for some time in the Royal Hotel in Orange. Sometime after midnight he left the hotel and rode his skateboard down the main street of Orange. He stopped outside a nearby florist shop and used his skateboard to smash the window. He entered the premises and stole about $50 in coins. Before leaving the shop used a cigarette lighter to set fire to a curtain which separated the retail portion of the shop from a small office. In evidence before the District Court he said that he thought the curtain would “fall off onto the ground” and he “didn’t think it would burn the whole shop down”. He also broke into another shop from which he also stole about $20 in coins.

105. In due course, the fire started by the offender spread and totally destroyed the premises of a number of shops as well as severely damaging a number of others.

106. The offender pleaded guilty to 2 counts of break, enter and steal under s112(1) of the Crimes Act 1900 (maximum penalty - 14 years’ imprisonment) and five counts of maliciously damaging property by fire under s195(b) of the Crimes Act 1900 (maximum penalty - 10 years’ imprisonment).

107. Judge Finnane QC sentenced the offender to identical and wholly concurrent sentences of imprisonment for each offence of seven years imprisonment with a non-parole period of three years.

108. With respect to taking into account the substantial loss and harm done to the proprietors of the five businesses which have been either destroyed or severely compromised as a consequence of the fire, the Court of Criminal Appeal (per Johnson J; Bell JA and McCallum J agreeing) observed at [54] that:

“It is well established at common law that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process: R v Webb [1971] VicRp 16; [1971] VR 147 at 150-151; R v P [1992] FCA 626; (1992) 64 A Crim R 381 at 384-385; Siganto v The Queen at 664-666”.

109. The Court also noted that the purposes of sentencing include recognition of the harm done to the victim of crime and the community: s3A(g) Crimes (Sentencing Procedure) Act 1999. Johnson J cited (at [55]) the observations of the Victorian Court of Appeal “that the crime of arson may have profound consequences for innocent victims: Director of Public Prosecutions (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538 at 540 [2]; 545 [22].” His Honour also observed that: “The monetary value of damage, and the loss of personal records, bear upon the objective seriousness of the crime: R v Davies [2006] SASC 232; (2006) 164 A Crim R 353 at 370 [97].”

110. In determining the appeal, Johnson J was critical of the offender’s reliance upon other sentencing decisions as comparatives and upon the reliance on sentencing statistics. His Honour said at [70]:

“The function of the courts is to sentence an offender by the application of correct sentencing principles, commencing with the gravity of the offence, and not by reference to the statistical median range of sentences handed down over a period of time: R v AEM and Others [2002] NSWCCA 58 at [116]”.

111. R v Shahrouk [2014] NSWCCA 87 involved the destruction by fire of a building containing an Indian restaurant in Cleveland Street, Redfern. The restaurant business appears to have been unsuccessful and at the time of the fire there were amounts owing to a variety of creditors including the landlord and utility companies. The owner of the business had taken out an insurance policy which amongst other things covered fire damage. Mr Shahrouk was recruited by the owner to burn the business down. He was to be paid $10,000 for his efforts. He was given a key to the restaurant and informed that it would be closed on Mondays.

112. Some weeks before the actual fire was set, Mr Shahrouk telephoned the restaurant and advised the waitress who answered the phone that there was a bomb which would explode in the restaurant in about 10 minutes. This offence of conveying false information to cause fear for safety was separately charged and taken into account on a Form 1 with respect to the arson offence.

113. Shortly before midnight on Monday 5 July 2010, Mr Shahrouk and a co-offender let themselves into the restaurant by using the key which had been provided. They commenced to pour flammable material around the restaurant and on stacked furniture. Whilst in the course of splashing flammable material prior to igniting the fire, a person who resided above the restaurant came downstairs and confronted the offenders. That man was detained by the offenders for a period of time before he successfully escaped and called police. The offenders lit the fire which resulted initially in an explosion and thereafter a substantial fire which severely damaged the restaurant and two buildings beside it. People living upstairs had to escape by climbing onto an awning. The total cost of damage was estimated at about $400,000 and the contents of the restaurant were estimated to have been valued at about $100,000.

114. Judge Cogswell in the District Court gave Mr Shahrouk a discount of 25% with respect to his early plea of Guilty and an additional 10% with respect to assistance provided to the authorities with respect to the involvement of the owner of the business.

115. With respect to the crime of aggravated arson, namely having been committed in company, Mr Shahrouk was sentenced to an indicative sentence of three years’ imprisonment. With respect to a charge of kidnapping the person who had come into the restaurant an indicative sentence of one year ten months was imposed. An overall aggregate sentence of four years with a non-parole period of 2 years and 4 months was specified.

116. At the proposed trial of the owner of the business, Mr Shahrouk recanted from the statement that he had previously given and from his undertaking to give evidence against the owner. In the light of that refusal to assist, the Crown appealed to the Court of Criminal Appeal seeking to have the offender re-sentenced, specifically with respect to the allowance which he had been given for assistance. The Court of Criminal Appeal, in confining its consideration to the challenge to sentence only regarding the allowance for assistance and the subsequent failure of the offender to provide the promised assistance, re-sentenced Mr Shahrouk on the basis of no discount at all for assistance, either past or future.

111. In the upshot, the Court of Criminal Appeal, Davies J (Hall and RA Hulme JJ agreeing) removed the 35% discount from the aggregate head sentence of 4 years and arrived at an aggregate starting point of 6 years 1 month. The Court then applied a 25% discount for the early plea and rounded down to a discounted head sentence of 4 years 7 months and then maintained a ratio of 58.33% fixed by the sentencing judge for the non-parole period, applying a broadly similar approach to the indicative sentence for the arson offence committed in company.

112. The arithmetical calculation set out in detail in the judgment of Davies J at [65] ultimately lead to a conclusion that the undiscounted indicative sentence with respect to the arson offence was approximately 4 years 8 months as a head sentence.

113. Simms v R [2014] NSWCCA 286 similarly involves an offence contrary to the provisions of s195 of the Crimes Act 1900 of intentionally destroying property by fire. Not having been committed in company, the offence was contrary to section 195(1)(b) of the Crimes Act and carried a maximum penalty of imprisonment for ten years. Following a plea of guilty, her Honour Judge Syme allowed a discount of 25% with respect to the plea of guilty and imposed a head sentence of imprisonment for 6 years with a non-parole period of 3 years 7 months. The facts giving rise to the offence disclosed that the offender was on parole for earlier offences and following an argument with his partner and their young son, the offender smashed various items in the unit occupied by his partner and then in a temper poured a jerry can filled with petrol in the unit and set fire to it. The offence had a domestic violence flavour to it and the offender’s motive was in part to lash out at his domestic partner. There was real and immediate danger to the immediate neighbours.

114. The Court of Criminal Appeal, per RA Hulme J, Price and McCallum JJ agreeing, reached a conclusion that the sentence before reduction following a plea of guilty of 8 years against a maximum of 10 years would have been appropriate if the case was considered to be in or close to the worst category. However the sentencing judge had not expressed a view that the objective facts fell into that categorisation and the Court of Criminal Appeal held that the starting point was manifestly excessive. In the ultimate, the Court of Criminal Appeal re-sentenced the offender to an effective head sentence of five years with a non-parole period of 3 years 3 months. Allowing for the 25% discount for the early plea of guilty permits a conclusion that the starting point before taking into account the discount was approximately 6 years and 8 months against a maximum penalty of 10 years.

115. A case involving the deliberate burning down of a house came before the Court of Criminal Appeal in December 2010: Watts v R [2010] NSWCCA 315. The offender and his de-facto had been tenants of the premises which were owned by the Department of Housing. They had lived at the property since December of 2005. They had grossly neglected the maintenance of the house which, with its surrounds, were in complete disarray and barely fit for habitation. In November 2007 the Mt Druitt office of the Department of Housing had scheduled an inspection of the premises. The day before the inspection was due to occur, the offender went to a service station where he filled a container with petrol. Shortly thereafter he poured petrol into the hallway and rear bedroom areas of the house and set the premises on fire. The fire caused significant structural damage estimated at $70,000. It would appear that the offender had been motivated to light the fire because of the difficulties he was having with the Department over the Department’s attempts to have the property tidied up and cleaned up. Apparently the offender and his de-facto believed that if they set fire to the house they would become eligible for emergency housing assistance which would obtain for them a new house. The offender was charged with maliciously damaging a property by means of fire contrary to s195(1)(b) of the Crimes Act 1900 carrying a maximum penalty of ten years.

116. Following his trial and conviction after a plea of not guilty, Syme DCJ sentenced the offender to 6 years and 6 months imprisonment with a non-parole period of 4 years 10 months.

117. In a joint judgment, McLellan CJ at CL and Howie AJ (Schmidt J agreeing) were critical of the trial judge’s approach to the process of sentencing. Her Honour had found: “the objective seriousness is high.” The Court of Criminal Appeal was not, however, persuaded that as a consequence the sentence imposed was in error in that regard. The Court (at [13]) said: “On any view of the matter, the criminality of the applicant was significant.”

118. However, in dealing with the subjective factors of the offender, the Court of Criminal Appeal came to a different view to that of the sentencing judge. The Court was of the view that the psychiatric assessment by Dr Ellis that: “It is likely given his underlying personality structure, possible cognitive impairments and substance use that his ability to reflect on decisions was impaired compared to the average person…” was of significance in an assessment of moral culpability. The Court of Criminal Appeal was of the view that the judge at first instance had not understood and had misapplied the principles in R v Hemsley [2004] NSWCCA 228. Having failed to take into account the psychiatric evidence in an appropriate manner, the Court allowed the appeal and reduced the head sentence from 6 years 6 months to 5 years 6 months. The Court did not find special circumstances but reduced the non-parole period from 4 years 10 months to 4 years 1 month.

119. The Court of Criminal Appeal again dealt with an offence of intentionally causing damage to property by fire contrary to s195(1)(b) of the Crimes Act 1900 in Cohen v R [2011] NSWCCA 165. The offender was a 19-year-old youth of Aboriginal heritage who broke into a primary school at Dubbo with his younger 15-year-old brother. He stole a number of electronic items including a data projector, digital camera DVD player and a laptop computer.

120. In the course of activities, in one of the classrooms that had been broken into, the offender cut himself and bled onto the carpet. He perceived that the blood stains could be used to identify him and determined to light a fire to destroy the blood stain. It was the offender’s intention merely to damage that part of the property onto which he had bled. However, the fire which he started burned out of his control and caused immense damage to the entire building block.

121. It was beyond repair and the estimated cost of rebuilding was $2million. The contents of the building which had been destroyed were valued at a further $250,000. Other consequential costs including the hiring and erection of temporary classrooms brought the total loss to somewhere in the vicinity of $2.5million.

122. The school was classified as a “low socio-economic” school, with some 64% of the pupils being of Aboriginal background. The impact on behalf of the school community was described as “soul destroying” and “devastating”.

123. The offender pleaded guilty to one count of aggravated break and enter carrying a maximum penalty of twenty years with a standard non-parole period of 5 years and one offence of arson with a maximum penalty of 10 years. In the District Court, Woods ADCJ imposed a sentence of imprisonment with respect to the arson offence of 4 years with a non-parole period of 3 years. With respect to the aggravated break and enter he imposed a sentence of imprisonment of 5 years which was partially accumulated by 12 months upon the arson offence. He similarly imposed a non-parole period of 3 years. The aggregate sentence was therefore imprisonment for 6 years with a non-parole period of 4 years. The sentencing judge at first instance found the arson offence to be “at a high level of objective seriousness”. His Honour had allowed a reduction of 20% to a starting point of 5 years with respect to the arson offence notwithstanding that the plea was entered at a late stage.

124. That reduction was considered to be generous by the Court of Criminal Appeal (per Simpson J at [30]; Allsop P and Buddin J agreeing). In the event, the Court of Criminal Appeal found that the sentencing judge had erred in aggravating the seriousness of the aggravated break and enter as a consequence of the subsequent damage caused by the fire. The failure to quarantine the break and enter offence from the very serious objective gravity of the arson led the Court to determine that error was established in the approach at first instance. It was not open to find that the aggravated break and enter itself was of mid-range seriousness.

125. With respect to the arson offence itself Simpson J rejected a submission that it was manifestly excessive. Her Honour expressed the view that assessing the offence “at a high level of objective seriousness” was not a categorisation which could be contested. Her Honour said at [63]:

“A first reaction to the sentence imposed for the arson offence would suggest that it was extremely lenient. However, it is 40% of the maximum prescribed sentence, in respect of an unpremeditated offence, committed by a 19-year-old (who was, it must be recognised, on bail at the time).”

132. Simpson J noted a submission that the offender’s motive in lighting the fire was not as serious as cases where such an offence is committed for vandalism or revenge, or to obtain insurance or to reap damage upon others. Her Honour accepted a submission by the Crown that the motive of avoiding punishment for a less serious offence was no less serious than those other categories of motive for arson.

133. It suffices to say for present purposes that the Court of Criminal Appeal has dealt with a variety of different offences, some of which were committed in company; some of which involved an intention to obtain a financial benefit; some of which were committed with an intention to inflict injury; but all of which involved either maliciously, recklessly or intentionally damaging property by fire. Those cases vary between destruction of a primary school at Dubbo, numerous occasions in which Department of Housing premises have burnt to the ground and other arson offences of varying degrees of severity. As I have already observed each of them is tempered by the subjective circumstances pertaining to the relevant offender.

DETERMINATION

134. I have indicated that the objective seriousness of this offence falls at about the mid-range. With respect to each of the Offenders they have criminal histories of some length, but predominantly of comparatively minor offences in the criminal calendar. They have each laboured with substantial drug abuse problems throughout their adult lives. The destruction of the home in which they had lived for approximately 18 years was wanton and deliberate. Each of them continues to deny their guilt.

135. The question of specific deterrence assumes some importance in these circumstances. So far as the offence of arson itself is concerned, using the old common law term for the offence, it is patently clear that general deterrence is a significant and relevant factor. I am ultimately of the view, there is no alternative to a sentence of full-time imprisonment. The offence was committed in company and pursuant to a joint common purpose. The offence carries a maximum penalty of 11 years. The subjective features of each of the offenders which I have referred to in some detail do not, in my view, permit any appropriate differentiation between them with regard to their joint participation in the offence.

136. In relation to each of the offenders I find an element of special circumstances. Each of them will be facing a period of custody quite different to anything in their past criminal history. Each of them, in light of the psychological reports, will require some ongoing assistance in order to ultimately, hopefully be rehabilitated into the community, and a longer period of supervision than that stipulated by Parliament is in my view appropriate.

137. With regard to Mr McMahon I propose to backdate the sentence by a period of 2 months. That will take into account the period of 18 days pre-trial custody which he served solely for the present matter and a proportion of the time during which he was bail refused for the present matter and also the assault occasioning matter. Mr McMahon would you stand up please?

138. With respect to the offence in respect of which you have been convicted you are sentenced to a minimum term of 3 and a half years. That will be backdated by a period of 2 months. It will commence on 10 February 2017 to take into account that pre-trial custody and will therefore expire on 9 August 2020. The additional term will be a period of 2 years. That term will expire on 9 August 2022. Sit down sir.

139. Ms Robb would you please stand? With respect to the matter in respect of which you have been convicted, I sentence you to a minimum term of imprisonment. That is a non-parole period of 3 and a half years. That period will commence from 10 April 2017 and expire on 9 October 2020. The additional term will be a period of 2 years which will expire on 9 October 2022. The effect of those sentences, is that the head sentence is 5 and a half years and the minimum term is 3 and a half years. Thank you, they might be taken down.

**********

Decision last updated: 24 January 2020